In Re: Govind Rao - Court Judgment

Excerpt:
criminal - refusal to receive summons - section 485-a of criminal procedure code, 1898 - summons sent through constable to petitioner (revenue officer) to appear as witness in court - constable went to office of petitioner to serve summons - petitioner engaged in important official work - constable left office without serving summons and reported that petitioner refused to receive summons - convicted by trial court - conviction challenged on ground of absence of mens rea - held, conviction unsustainable. - 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. - but the court should have insisted, before hauling the revenue inspector for that kind of contempt cum disobedience contemplated in the offence created under section 485-a of the code of criminal procedure upon its being satisfied with proof of a written refusal by that revenue inspector. the well-known principle that courts could not allow to be easily tickled with imagined alfronts should not be observed only in its breach. emperor, air 1945 pg 134. it is therefore necessary that greater attention is paid by the court and more caution administered to itself while acting under a provision like section 485-a, criminal p. (1) if any witness being summoned to appear before a criminal court is legally bound to appear at a certain place and time in obedience to the summons and without just excuse neglects or refuses to attend at that place or time or departs from the place where he has to attend before the time at which it is lawful for him to depart, and the court before which the witness is to appear is satisfied that it is expedient in the interests of justice that such witness should be tried summarily the court may take cognizance of the offence and after giving the offender an opportunity of showing cause why he should not be punished under this section, sentence him to a fine not exceeding one hundered rupees.ordermunikannaiah, j.1. the petitioner herein is a revenue inspector in madak district. in criminal case no. 26/2 of 1957 pending before the munsif-magistrate's court, vikarabad, against another person for an offence under section 447 of the indian penal code, the prosecution took out summons to the petitioner to figure as a witness. the summons was sent through a constable for service on the petitioner. that constable went to sangareddy and found the petitioner engaged with the tahsildar as he was helping the latter in his official work. the petitioner did not immediately come out and attend to the police constable and accept the service of summons, but wanted the police constable to wait as ho was busy assisting his boss. the constable left the place and reported that the petitioner refused to receive the summons. on this the munsif-magistrate, vikarabad. instituted proceedings under section 485a of the code of criminal procedure against the petitioner and convicted him of the offence and sentenced him to pay a fine of rs. 50/- and in default to undergo simple imprisonment for 10 days. the petitioner herein preferred a revision application before the district magistrate, hyderabad, but the same was dismissed merely on the ground that as the factual points have been correctly determined by the munsif-magistrate, no interference is called for. hence this revision-petition. 2. all the facts alleged and proved by the prosecution only go to establish that the police constable went to the petitioner who was engaged in his duties as revenue inspector before the tahsildar and that as the petitioner did not pay attention immediately to the police constable, the latter thought it fit to record that the revenue inspector refused to receive the summons. it is clear from the proved facts that the revenue inspector was confronted with a conflict of duties in relation to the tahsildar and the police constable, and if he had decided to stay on a little longer with the tahsildar to finish the work on hand, the constable should have waited. it is not enough in those circumstances that the report of the constable that the summons have been refused should be treated as sufficient; but the court should have insisted, before hauling the revenue inspector for that kind of contempt cum disobedience contemplated in the offence created under section 485-a of the code of criminal procedure upon its being satisfied with proof of a written refusal by that revenue inspector. that has not been done in this case. it should therefore be pointed out that action against the revenue inspector by the munsif-magistrate, vikarabad, is rather uncalled for. the well-known principle that courts could not allow to be easily tickled with imagined alfronts should not be observed only in its breach. particular attention has been drawn by the observations of the privy council that courts should not be too sensitive for punishing for contempts and that this power should be used sparingly i.e. in serious cases only, vide debt prasad sharma v. emperor air 1943 pc 202; and parashurarn detaram shamdasani v. emperor, air 1945 pg 134. it is therefore necessary that greater attention is paid by the court and more caution administered to itself while acting under a provision like section 485-a, criminal p. c. or dealing generally with persons for contempt before a court. 3. section 485-a of the code of criminal procedure is in these terms: '(1) if any witness being summoned to appear before a criminal court is legally bound to appear at a certain place and time in obedience to the summons and without just excuse neglects or refuses to attend at that place or time or departs from the place where he has to attend before the time at which it is lawful for him to depart, and the court before which the witness is to appear is satisfied that it is expedient in the interests of justice that such witness should be tried summarily the court may take cognizance of the offence and after giving the offender an opportunity of showing cause why he should not be punished under this section, sentence him to a fine not exceeding one hundered rupees. (2) xx xxx' the section is plain in making non-attendence of a witness summoned to appear before a criminal court as entailing the awarding of punishment. but the language of this section does not support the view that a person who has not received any summons and does not know when and where to appear could be brought before a court as it cannot be said that the person accused of an offence, in those 'circumstances, has intentionally neglected or refused to attend the court at that particular place and time. therefore inasmuch as this section does not dispense with mens rea as an ingredient for the offence, it is necessary for courts to find whether the summons has been served and the accused had the knowledge of it and did disobey the summons thereafter. i should therefore hold that where the police constable takes the summons and is asked to wait for a while but he endorses on the summons that the summons has been refused, such a case would not fall within the purview of section 455-a of the code of criminal procedure. 4. for the aforesaid reasons, i find that thepetitioner cannot be found guilty in the circumstances of this case under section 485-a, criminal p. c.,and be is acquitted. the fine, if already paid bythe accused, will be refunded to him.

Judgment:
ORDER

Munikannaiah, J.

1. The petitioner herein is a Revenue Inspector in Madak District. In Criminal Case No. 26/2 of 1957 pending before the Munsif-Magistrate's Court, Vikarabad, against another person for an offence under Section 447 of the Indian Penal Code, the prosecution took out summons to the petitioner to figure as a witness. The summons was sent through a constable for service on the petitioner.

That constable went to Sangareddy and found the petitioner engaged with the Tahsildar as he was Helping the latter in his official work. The petitioner did not immediately come out and attend to the police constable and accept the service of summons, but wanted the police constable to wait as ho was busy assisting his boss. The constable left the place and reported that the petitioner refused to receive the summons.

On this the Munsif-Magistrate, Vikarabad. instituted proceedings under Section 485A of the Code of Criminal Procedure against the petitioner and convicted him of the offence and sentenced him to pay a fine of Rs. 50/- and in default to undergo simple imprisonment for 10 days. The petitioner herein preferred a revision application before the District Magistrate, Hyderabad, but the same was dismissed merely on the ground that as the factual points have been correctly determined by the Munsif-Magistrate, no interference is called for. Hence this revision-petition.

2. All the facts alleged and proved by the prosecution only go to establish that the police constable went to the petitioner who was engaged in his duties as Revenue Inspector before the Tahsildar and that as the petitioner did not pay attention immediately to the police constable, the latter thought it fit to record that the Revenue Inspector refused to receive the summons.

It is clear from the proved facts that the Revenue Inspector was confronted with a conflict of duties in relation to the Tahsildar and the police constable, and if he had decided to stay on a little longer with the Tahsildar to finish the work on hand, the constable should have waited. It is not enough in those circumstances that the report of the constable that the summons have been refused should be treated as sufficient; but the court should have insisted, before hauling the Revenue Inspector for that kind of contempt Cum disobedience contemplated in the offence created under Section 485-A of the Code of Criminal Procedure upon its being satisfied with proof of a written refusal by that Revenue Inspector.

That has not been done in this case. It should therefore be pointed out that action against the Revenue Inspector by the Munsif-Magistrate, Vikarabad, is rather uncalled for. The well-known principle that courts could not allow to be easily tickled with imagined alfronts should not be observed only in its breach. Particular attention has been drawn by the observations of the Privy Council that courts should not be too sensitive for punishing for contempts and that this power should be used sparingly i.e. in serious cases only, vide Debt Prasad Sharma v. Emperor AIR 1943 PC 202; and Parashurarn Detaram Shamdasani v. Emperor, AIR 1945 PG 134.

It is therefore necessary that greater attention is paid by the court and more caution administered to itself while acting under a provision like Section 485-A, Criminal P. C. or dealing generally with persons for contempt before a court.

3. Section 485-A of the Code of Criminal Procedure is in these terms:

'(1) If any witness being summoned to appear before a criminal Court is legally bound to appear at a certain place and time in obedience to the summons and without just excuse neglects or refuses to attend at that place or time or departs from the place where he has to attend before the time at which it is lawful for him to depart, and the Court before which the witness is to appear is satisfied that it is expedient in the interests of justice that such witness should be tried summarily the Court may take cognizance of the offence and after giving the offender an opportunity of showing cause why he should not be punished under this section, sentence him to a fine not exceeding one hundered rupees. (2) xx xxx'

The Section is plain in making non-attendence of a witness summoned to appear before a Criminal Court as entailing the awarding of punishment. But the language of this section does not support the view that a person who has not received any summons and does not know when and where to appear could be brought before a Court as it cannot be said that the person accused of an offence, in those 'circumstances, has intentionally neglected or refused to attend the court at that particular place and time.

Therefore inasmuch as this section does not dispense with mens rea as an ingredient for the offence, it is necessary for courts to find whether the summons has been served and the accused had the knowledge of it and did disobey the summons thereafter. I should therefore hold that where the police constable takes the summons and is asked to wait for a while but he endorses on the summons that the summons has been refused, such a case would not fall within the purview of Section 455-A of the Code of Criminal Procedure.

4. For the aforesaid reasons, I find that thepetitioner cannot be found guilty in the circumstances of this case under Section 485-A, Criminal P. C.,and be is acquitted. The fine, if already paid bythe accused, will be refunded to him.