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This case is also wholly irrelevant to the issue in question because there the Court on a consideration of the evidence found as a fact that the panchnama was not a genuine document and did not inspire confidence. Ratio |
There is no such finding by the High Court or the Sessions Judge in the instant case nor has the inquest report been shown to be unreliable or perfunctory or suspect. Ratio |
Apart from the inquest report exhibit Ka 10 there is another document which throws a flood of light on this question. Ratio |
Ka 18 which is the site plan prepared by the Investigating Officer at the spot from where the empty cartridges of 12 bore were recovered. Ratio |
This is also a record of what the Investigating Officer himself found at the spot. Ratio |
The learned counsel for the appellants submitted that the site plan was also not admissible in evidence because it was based on information derived by the Investigating Officer from the statement of witnesses during investigation. ARG |
Reliance was placed on a judgment of this Court in the case of Jit Singh vs State of Punjab(2) where this Court observed as follows "It is argued that presumably this site plan also was prepared by the Investigating Officer in accordance with the various situations pointed out to him by the witnesses. PRE |
We are afraid it is not permissible to use the site plan exhibit P.14 in the manner suggested by the counsel. PRE |
The notes in question on this site plan were statements recorded by the Police Officer in the course of investigation, and were hit by section 162 of the Code of Criminal Procedure. PRE |
These notes could be used only for the purposes of contradicting the prosecution witnesses concerned in accordance with the provisions of section 145. PRE |
Evidence Act and for no other purpose". PRE |
In our opinion, the argument of the learned counsel is based on misconception of law laid down by this Court. Ratio |
What this Court has said is that the notes in question which are in the nature of a statemen, ' recorded by the Police Officer in the course of investigation would not be admissible. Ratio |
There can be no quarrel with this proposition. Ratio |
Note No. 4 in exhibit K 18 is not a note which is based on the information given to the Investigating Officer by the witnesses but is a memo of what he himself founded observed at the spot. Ratio |
Such a statement does not fall within the four corners of section 162, Cr P.C. III fact, documents like the inquest reports, seizure lists or the site plans consist of two parts one of which is admissible and the other is inadmissible. Ratio |
That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under section 60 of (1) (2) A.T.R. 73 the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recor... |
For these reasons, therefore, we are of the opinion that the decision cited by the counsel for the appellants has no application to this case. Ratio |
Exhibit Ka 13 is a memo relating to the recovery of the empty cartridges found at the spot by the Investigating Officer. Ratio |
The title of this memo runs thus : "Memo relating to the recovery of Khokha (empty case of cartridge of 12 bore from the site in the case as offence No. 126, under sections 147/148/149/302/392/ 324 I.P.C." It appears that where an empty cartridge is mentioned it is described as Khokha whereas in the case of live cartri... |
exhibit Ka 13 is the seizure memo of the recovery of an empty cartridge of 12 bore which was found at the spot and which was said to have hit the deceased having been fired from the gun of one of the appellants. Ratio |
It was also mentioned in this memo, that smell of the gun powder was coming out of the Khokha. Ratio |
When the Investigating Officer deposed before the Sessions Judge that smell was coming out from the cartridge he was actually referring to the, empty cartridge which was recovered from the spot and which was fired from the gun of the appellants. Ratio |
exhibit Ka 14 however is the seizure memo of the four live Cartridges found by the Investigating Officer at the spot, in which it is mentioned that four cartridges of 32 bore revolver are recovered. Ratio |
The exact description is given thus : "Description of the Cartridge Four cartridge of 32 bore of revolver of brass cap and blacks lead Kynock 32 Sand W. engraved on the brass cop. Ratio |
" It would be seen that the description of the four cartridges with brass cap on lead intact show that the cartridges were live and not empty because if the cartridges were empty then there was no question of there being any black lead in existence at the spot. Ratio |
The Investigating Officer has clearly proved these documents in his evidence before the Sessions Judge and stated that he had prepared these documents. Ratio |
Thus these documents having been prepared im mediately after the occurrence are undoubtedly reliable. Ratio |
Having regard, therefore, to the documentary evidence and the circumstances mentioned above we find ourselves in complete agree,men*, with the view taken by the courts below that what had been recovered at the spot by the Investigating Officer were four live cartridges which had fallen at the spot when the bag of the d... |
We are unable to find any reliable evidence to prove that the four cartridges found at the spot were empty cartridges. Ratio |
The argument of the learned counsel for the appellants to the contrary must be overruled. Ratio |
Great reliance was placed by the appellants on an application given by Rajendra son of the deceased before the S.D.M. Court at Bareilly informing the court that Babu Ram had been murdered. ARG |
This application is exhibit Ka 1 and was filed before the Magistrate on 9 12 1968. Ratio |
It is true that in this application it was mentioned that Shri Babu Ram had been murdered but the name of the appellants nor the circumstances under which be was murdered have been mentioned. Ratio |
It was argued by Mr. Garg that the absence of the names of the appellants clearly showed that the deceased was murdered by unknown persons, and, therefore, only the fact of his murder was mentioned in this application. ARG |
The argument appears to be attractive, but on closer scrutiny it is without any substance. Ratio |
P.W. 1 had already rushed to the police station to lodge the F.I.R. wherein lie had narrated the facts which led to the death of the deceased. Ratio |
Rajendra, son of the deceased who had been sent to Bareilly was sent for the limited purpose of informing the court regarding the death of Babu Ram. Ratio |
In the proceedings under section 107 there was no occasion for mentioning the name of the assailants of Babu Ram or for detailing the circumstances under which he was killed because that was not germane for the proceedings. Ratio |
In these circumstances, therefore, the absence of the name of the assailants in this application cannot put the prosecution out of Court. Ratio |
Learned counsel for the appellants made certain comments against some of the witnesses which have been carefully dealt with by the Courts below. Ratio |
The discrepancies relied upon by the appellants do not appear to be of great consequence and do not merit serious consideration. Ratio |
On a careful consideration of the entire facts of the case we are clearly of the opinion that the prosecution case against the appellants has been proved beyond reasonable doubt and we find no reason to interfere with the judgement of the High Court upholding the conviction and the sentences passed on the appellants in... |
The result is that the appeals fail and are accordingly dismissed. RPC |
M.R. Appeals dismissed. RPC |
ivil Appeal Nos. FAC |
728 730 of 1975. FAC |
823 Appeals by Special Leave from the Judgment and Order dated 19 7 1973 of the Kerala High Court in S.A. Nos. 340 and 341/73 and A.S. No. 176/73. FAC |
M. K. Ramamurthy, Amicus Curiae, section Balakrishnan, Amicus Curiae, Miss R. Vaigai and Lilly Kurian (In person) for the Appellant. FAC |
V. A. Seyid Muhammed and K. R. Nambiar for the State of Kerala. FAC |
L. N. Sinha (for RR 1, 2 and 11 in CA 728), M. I. Joseph (CA 729), P. P. Singh, (C.A. 729, 728 and 730/78) A. G. Puddissery (C.A. 730/75) and K. M. K. Nair for RR 1, 2, 11 and 12 in C.A. 728, RR. 3, 11, 12 and 13 and RR 1, 3 5 in C.A. 730/75. FAC |
P. K. Keshava Pillai, Frank Anthony, M. K. D. Namboodiry, K. R. Choudhury, Baby Krishnan, B. Parthasarthi and Panduranga Rao for the Interveners. FAC |
The Judgment of the Court was delivered by SEN, J. FAC |
These appeals by special leave directed against the Judgment of the Kerala High Court dated July 19, 1973, raise a question of far reaching importance. FAC |
The question is whether an educational institution established and managed by a religious or linguistic minority is bound by the provisions of Ordinance 33(4), Chapter LVII of the Ordinances framed by the Syndicate of the University of Kerala, under section 19(j) of the Kerala University Act, 1957. Ratio |
Lilly Kurian, the appellant herein, was appointed as Principal of the St. Joseph Training College for Women, Ernakulam in the year 1957. FAC |
The College was established by the Congregation of the Mothers of Carmal, which is a religious society of Nnus belonging to the Roman Catholic Church, and is affiliated to the University of Kerala. FAC |
It is administered by a Managing Board, and the Provincial of the Congregation is its President. FAC |
On October 30, 1969, there was an unfortunate incident between the appellant and one P. K. Rajaratnam, a lecturer of the College, placed on deputation by the Government. FAC |
On the basis of a complaint by Rajaratnam, the Managing Board initiated disciplinary proceedings against the appellant and appointed a retired Principal of the Maharaja 's College, Ernakulam, to be the Enquiry Officer. FAC |
The appellant did not participate in the proceedings. FAC |
The attitude adopted by the appellant unfortunately was one of supreme indifference, taking the stand that the Managing Board had no competence whatsoever to initiate any such disciplinary action. FAC |
The Enquiry Officer by his 824 report dated November 27, 1969, held the appellant guilty of misconduct. FAC |
The Secretary of the Managing Board accordingly served her with a notice dated December 2, 1969 stating that a meeting of the Board was to be held on December 19, 1969, to consider the representation, if any, made by her and also the punishment to be imposed, on the basis of the findings recorded by the Enquiry Officer... |
In the wake of the disciplinary action, on December 16, 1969, the appellant filed a suit O.S. No. 819 of 1969 in the Munsiff 's Court, Ernakulam, challenging the validity of the proceedings of the Managing Board. FAC |
On December 19, 1969 the Munsiff issued an interim injunction restraining the Management from implementing the decision, if any, taken by it at the meeting to be held on that day. FAC |
A meeting of the Board had, in fact, been held and a decision was taken to remove the appellant from service. FAC |
The Provincial of the Congregation by virtue of her office as the President of the Managing Board, by order dated January 2, 1970, dismissed the appellant from service. FAC |
It was stated that the Managing Board had after giving due notice to the appellant, and on a careful consideration of the enquiry report, and the findings thereon, found that the charges of misconduct were proved. FAC |
The appellant was accordingly directed to hand over all papers, files, vouchers and documents connected with the College to Sr.Lewina, Professor, without further delay, stating that the order for her dismissal from service would be implemented immediately after the decision of the Munsiff on the application for tempora... |
On January 17, 1970, the Munsiff held that the dismissal of the appellant was free from any infirmity and was by the competent authority, that is the Managing Board, and, therefore, she had no prima facie case. FAC |
The Munsiff accordingly vacated the injunction with a direction that temporary injunction already issued will remain in force for two weeks to enable the appellant, if she wanted to move the Vice Chancellor and obtain from him a stay of the order of dismissal. FAC |
The appellant had, in the meanwhile, on January 9, 1970; already filed an appeal before the Vice Chancellor under Ordinance 33(4), Chapter LVII of the Ordinance framed by the Syndicate, against the order of dismissal. FAC |
The Vice Chancellor by his order dated January 24, 1970, stayed the operation of the order of dismissal. FAC |
The suit filed by the appellant was subsequently dismissed by the Munsiff as withdrawn. FAC |
It appears that the appellant was all the while functioning as principal of the College. FAC |
It was brought to light that she had sent two communications dated October 6, 1969, and November 5, 1969, to 825 the Secretary to the Government, Education Department, calling for termination of deputation of Rajaratnam, appointed as a Lecturer in the College by the Management, as a result of which his deputation was c... |
The Managing Board viewed the sending of these communications by the appellant without reference to it as an act of insubordination, and, therefore, decided to conduct an enquiry against the appellant and she was suspended pending enquiry. FAC |
A substitute Principal, Sr.Lewina, was appointed and the appellant was relieved of the duties on April 10, 1970. FAC |
On April 13, 1970 the appellant filed an appeal to the Vice Chancellor against the order of suspension under Ordinance 33(1) of Chapter LVII, and the Vice Chancellor by his order dated April 20, 1970 directed that the status quo be maintained. FAC |
In view of this order, the Management was presumably apprehensive that the appellant might force herself upon the College. FAC |
The substitute Principal, Sr.Lewina, appointed by the Management in place of the appellant accordingly on July 2, 1970 filed the suit O.S. No. 405 of 1970 in the Munsiff 's Court, Ernakulam for an injunction restraining the appellant from functioning and from interfering with her discharging the duties as Principal. FA... |
The Munsiff granted a temporary injunction, in the terms prayed for, which was subsequently confirmed. FAC |
The Vice Chancellor, University of Kerala, by his two orders dated October 19, 1970 held that the order of dismissal from service and the order of suspension passed against the appellant were in breach of the rules of natural justice and fair play and were consequently illegal and null and void, and accordingly directe... |
Before the orders were communicated, the Management filed the suit O.S. No. 110 of 1970 in the Munsiff 's Court, Ernakulam on October, 22, 1970, seeking an injunction restraining the appellant from functioning as Principal of the College and obtained a temporary injunction. FAC |
While these two injunctions were in force, the appellant wrote to the Superintendent of the Post Offices demanding delivery of letters addressed to the Principal at her residence. FAC |
The non delivery of letters created a dead lock in the administration of the College. FAC |
On July 22, 1972, the substitute Principal, Sr.Lawine accordingly filed a suit O.S. No. 569 of 1972 in the Munsiff 's Court, Ernakulam against the appellant and the Postal Authorities for prohibiting the one from receiving and the other from delivering, the postal articles addressed to the Principal of the College. FAC |
All the three suits pending in the Munsiff 's Court, Ernakulam were transferred, by the order of the District Judge, Ernakulam to the 1st Additional Sub Court, Ernakulam for disposal. FAC |
826 The trial court by its judgment dated December 6, 1972 dismissed the suits holding that the appellate power conferred on the Vice Chancellor by cls. FAC |
(1) and (4) of Ordinance 33, Chapter LVII of the Ordinance framed by the Syndicate under section 19(j) of the Act, was a valid conferment of power on the Vice Chancellor and even after the commencement of the Kerala University Act, 1969, both the Vice Chancellor and the Syndicate had concurrent powers of appeal. FAC |
It, therefore, upheld the orders of the Vice Chancellor directing reinstatement of the appellant in service. FAC |
On appeal, the District Judge, Ernakulam by his judgment dated March 17, 1973 held that the orders of the Vice Chancellor were perfectly valid and within jurisdiction, and that his direction to the Management to continue the appellant as Principal in her office was also legal. RLC |
He, accordingly dismissed the appeals. RLC |
The Kerala High Court, however, by its judgment dated July 19, 1973 reversed the judgment and decree of the court below and decreed the plaintiffs ' suit holding that (i) the conferment by the Syndicate of a right of appeal to a teacher against his order of dismissal from service to the Vice Chancellor cannot be said t... |
According to the High Court, although the Vice Chancellor had the power to hear an appeal against an order of dismissal under Ordinance 33(4), he had not, expressly or impliedly, the power to order reinstatement or even to grant a declaration that the services of the appellant had been wrongly terminated. RLC |
It held that a statutory tribunal like the Vice Chancellor could not grant such a relief as the same would amount to specifically enforcing the contract of service. RLC |
In reaching the conclusion, the High Court observes that this, in effect, "amounts to eviscerating the right of appeal to the Vice Chancellor, but the remedy lies elsewhere", in the light of the authorities cited by it. RLC |
The Kerala University Act, 1957, "the Act", as the preamble shows, was enacted to reconstitute the University of Travancore into a teaching University for the whole of the State of Kerala. FAC |
Section 2(a) defines "college" to mean a college maintained by, or affiliated 827 to the University. STA |
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