Raghavendrarao (A1) and ors. Vs. State of Andhra Pradesh - Court Judgment

Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - and (3) where the allegations made against the accused person do constitute an offence but either there is no legal evidence adduced in support of the case or the evidence clearly or manifestly fails to prove the charge. in such a case, it is to be noted that there is a distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. the high court would not embark upon an enquiry as to whether the evidence in question is reliable or not because that is the function of the trial magistrate, and it would not be open to any party to invoke the inherent jurisdiction of the high court and contend that on a reasonable appreciation of the evidence, the accusation made against the accused could not be sustained.ordermuktadar, j.1. the fourth city magistrate, hyderabad framed charges against the accused under sections 120-b, 420 and 341. i.p.c. a-2, a-3. and a-7 to a-10 have preferred this revision against the said order dated 14.4.1971. mr. k. rama sarma. the learned advocate for the petitioners contends that the learned magistrate was incorrect in framing the said charges as the documents referred to under section 173, cr.p.c. do not disclose any valid ground for the framing of the charges. he further contends that there are contradictions in the first information and the statement of p-w. 1 (complainant) under section 162, cr.p.c. as such, no offence has been made out warranting the framing of the charges. i cannot accede to the contentions of the learned advocate. in r.p. kapur v. state of punjab : 1960crilj1239 . the supreme court has laid down some of the categories of cases where the high court in exercise of its inherent jurisdiction could interfere and quash the proceedings. these are, (1) where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged such as for example the requisite sanction which may be necessary for prosecution; (2) where the allegations in the first information report or the complaint, even if taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, appreciation of evidence does not arise at all; and (3) where the allegations made against the accused person do constitute an offence but either there is no legal evidence adduced in support of the case or the evidence clearly or manifestly fails to prove the charge. in such a case, it is to be noted that there is a distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. the supreme court has further held that in exercising its jurisdiction under section 561-a, cr.p.c. the high court would not embark upon an enquiry as to whether the evidence in question is reliable or not because that is the function of the trial magistrate, and it would not be open to any party to invoke the inherent jurisdiction of the high court and contend that on a reasonable appreciation of the evidence, the accusation made against the accused could not be sustained.2. in the light of the above principles laid down by the supreme court, it is necessary for me to examine as to whether this court in exercise of its inherent jurisdiction ought to interfere and quash the proceedings. it is to be noted that section 251-a, cr.p.c. requires a magistrate to consider the documents referred to in section 173. cr.p.c before framing charges. the documents referred to in section 173, cr.p.c. consist of records of investigation which are not admissible in evidence at the trial but can be made use of for limited purpose as stated in section 162. cr.p.c. this material does not at the stage of framing a charge have the status of evidence tendered on oath nor has its veracity been tested by cross-examination or contradicted by the evidence which the accused may lead in defense. it may be that at the trial, the material on the basis of which a charge has been framed may not stand the test of cross-examination or is rendered unacceptable but these considerations become available only at the conclusion of the trial and do not enter into consideration at the stage when the magistrate has to make up his mind as to whether or not he should frame a charge. the only question, therefore, is whether the material considered by the learned magistrate could lead to the view that the charge against the petitioner is proper. i am of the opinion that the allegations in the first information taken at their face value do constitute an offence alleged by the prosecution. the magistrate, after considering the documents submitted under section 173, cr.p.c. has framed the charges. hence the view taken by the learned magistrate against the petitioners cannot be considered to be groundless at this stage of the case.3. the petition is. therefore, dismissed.

Judgment:
ORDER

Muktadar, J.

1. The Fourth City Magistrate, Hyderabad framed charges against the accused under Sections 120-B, 420 and 341. I.P.C. A-2, A-3. and A-7 to A-10 have preferred this revision against the said order dated 14.4.1971. Mr. K. Rama Sarma. the learned Advocate for the petitioners contends that the learned Magistrate was incorrect in framing the said charges as the documents referred to under Section 173, Cr.P.C. do not disclose any valid ground for the framing of the charges. He further contends that there are contradictions in the first information and the statement of P-W. 1 (complainant) under Section 162, Cr.P.C. as such, no offence has been made out warranting the framing of the charges. I cannot accede to the contentions of the learned advocate. In R.P. Kapur v. State of Punjab : 1960CriLJ1239 . the Supreme Court has laid down some of the categories of cases where the High Court In exercise of its inherent jurisdiction could interfere and quash the proceedings. These are, (1) where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged such as for example the requisite sanction which may be necessary for prosecution; (2) where the allegations in the first information report or the complaint, even if taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, appreciation of evidence does not arise at all; and (3) where the allegations made against the accused person do constitute an offence but either there is no legal evidence adduced in support of the case or the evidence clearly or manifestly fails to prove the charge. In such a case, it is to be noted that there is a distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. The Supreme Court has further held that in exercising its jurisdiction under Section 561-A, Cr.P.C. the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not because that is the function of the trial Magistrate, and it would not be open to any party to invoke the inherent jurisdiction of the High Court and contend that on a reasonable appreciation of the evidence, the accusation made against the accused could not be sustained.

2. In the light of the above principles laid down by the Supreme Court, it is necessary for me to examine as to whether this Court in exercise of its inherent jurisdiction ought to interfere and quash the proceedings. It is to be noted that Section 251-A, Cr.P.C. requires a Magistrate to consider the documents referred to in Section 173. Cr.P.C before framing charges. The documents referred to in Section 173, Cr.P.C. consist of records of investigation which are not admissible in evidence at the trial but can be made use of for limited purpose as stated in Section 162. Cr.P.C. This material does not at the stage of framing a charge have the status of evidence tendered on oath nor has its veracity been tested by cross-examination or contradicted by the evidence which the accused may lead in defense. It may be that at the trial, the material on the basis of which a charge has been framed may not stand the test of cross-examination or is rendered unacceptable but these considerations become available only at the conclusion of the trial and do not enter into consideration at the stage when the Magistrate has to make up his mind as to whether or not he should frame a charge. The only question, therefore, is whether the material considered by the learned Magistrate could lead to the view that the charge against the petitioner is proper. I am of the opinion that the allegations in the first information taken at their face value do constitute an offence alleged by the prosecution. The Magistrate, after considering the documents submitted under Section 173, Cr.P.C. has framed the charges. Hence the view taken by the learned Magistrate against the petitioners cannot be considered to be groundless at this stage of the case.

3. The petition is. therefore, dismissed.