Emperor Vs. Umar Khan - Court Judgment

Excerpt:
criminal procedure code, section 364 - statement made by accused person--refusal of accused to sign record--act no. xlv of 1860 (indian penal code), section 180. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - as the clause is worded it is clearly impossible to hold that it is mandatory as to the magistrate and merely directory as to the accused. in our opinion the conviction is a good one and in accordance with law.tudball and muhammad rafiq, jj.1. this is a reference by the sessions judge of saharanpur. one umar khan is an accused person who was examined by a magistrate and his statement recorded in accordance with section 364 of the code of criminal procedure. when called upon by the magistrate to sign the record of his statement umar khan refused to comply. he has been tried and convicted of an offence under section 180 of the indian penal code. the learned sessions judge is in doubt as to the correctness of this conviction in view of the decision in imperatrix v. sirmpa (1877) i.l.r. 4 bom. 15, and he has referred the matter to this court. the decision to which the sessions judge has referred is one which was passed when act x of 1872 was in force. in section 346 of that act there was a separate paragraph which ran as follows: 'the accused person shall sign, or attest by his mark, such record.' it was held in that case that this was merely directory and not mandatory, and therefore the accused person could not be compelled to sign his statement. it will be seen on examination of section 364 of the present criminal procedure code, that the language of the two sections differs considerably. clause (2) of the present section runs as follows: 'when the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the magistrate or judge of such court, and such magistrate or judge shall certify under his own hand that the examination was taken in his presence and hearing, and that the record contains a full and true account of the statement made by the accused.' it is quite clear to our minds that, at least so far as the magistrate himself is concerned, clause (2) of section 364 is mandatory and that the magistrate is bound in law to sign the statement and also to append the certificate mentioned therein. as the clause is worded it is clearly impossible to hold that it is mandatory as to the magistrate and merely directory as to the accused. the words run, 'the record shall be signed by the accused and the magistrate'. the section is worded very much as the first clause of section 200 of the code, which orders a magistrate to examine a complainant upon oath and to reduce to writing the substance of the examination, and which says that the record thereof shall be signed by the complainant and also by the magistrate. the same order is also laid down under section 154, in the case of information given to a police officer and reduced to writing. it is clear that the alteration of the language of the old code to the language as it now stands in the present code, has placed the matter, which was in doubt before, beyond all doubt at the present time. in our opinion the language of section 364 makes it compulsory upon the magistrate to sign a statement and also upon the accused. the magistrate is a public servant legally competent to require the accused to sign the statement, and if he refused to do so, the accused committed an offence under section 180. it will be noted that an accused person is not bound to make any statement whatsoever, but if he does and if he is examined by the magistrate and replies to the magistrate's questions, the court is bound to reduce the statement to writing in the form of questions and answers, and the magistrate is bound to sign it, as also is the accused. in our opinion the conviction is a good one and in accordance with law. we therefore see no cause for interference and return the record.