Mohd. Iqbal Vs. K. Narasimha Rao and anr. - 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. orderbhaskar rao, j.1. this is a petition filed to quash the order of the xvii metropolitan magistrate, hyderabad, in c.c. no. 77/89 recalling the non-bailable warrant issued against the respondent under section 70(2) of the criminal procedure code.2. the brief facts of the case are: the petitioner herein filed a private complaint against the respondent alleging that the respondent kidnapped him with the aid and assistance of some others, kept him in illegal custody for over one week and therefore liable for punishment under sections 324, 395, 379, 343, 365, 367 and 368 i.p.c. the magistrate took cognizance of the offence and since the process could not be served, the n.b.w. was issued by the magistrate against the respondent for execution through an advocate-commissioner. however, the advocate-commissioner returned the n.b.w. on 3-8-1989 unexecuted. while so on 4-8-89 the respondent appeared before the court and filed a petition, to recall the n.b.w. which was ordered. it is this order of recalling the n.b.w., that is questioned in these proceedings under section 482 cr.p.c.3. the contention of the learned counsel for the petitioner is that the magistrate having taken cognizance of the offence triable by a sessions court, has no jurisdiction to recall the n.b.w., issued and that he has alone to commit the accused to judicial custody, and that if at all the accused could move the sessions court for bail under section 437 cr.p.c. the learned counsel for the respondent-accused, on the other hand, contended that the magistrate in appropriate cases has power to recall the n.b.w. issued by him. even if there is no power, to recall the n.b.w., he submitted, the magistrate could release the accused on bail under section 437 cr.p.c.4. there is no dispute in this case that the maximum punishment for the most grievous offence taken cognizance of in this case is 'imprisonment for life', that the n.b.w., issued to the advocate-commissioner was returned unserved on 3-8-89 and that on 4-8-1989 the respondent appeared before the court. it must be noted that the respondent in this case is an inspector of police, railway protection force and that a case filed by him regarding theft of railway property is pending against the petitioner. as submitted by the learned counsel for the respondent even taking that the magistrate has no power to recall the warrant issued under section 70(2) cr.p.c., still under section 437 cr.p.c. he has power to release the accused-respondent on bail. then the question is whether in a case exclusively triable by the court of session, the magistrate could release the accused on bail under section 437 cr.p.c. this question was considered by the kerala high court in satyam v. state, 1989 crl.l.j. 1313 (kerala). it was held therein that the magistrate is not justified in holding that he had no power to grant bail to the accused before him, who was involved in an offence punishable with 'imprisonment for life', solely on the ground that the offence is exclusively triable by a court of session. it further held that the prohibition against grant of bail is confined to the cases where the sentence prescribed is either death or alternatively imprisonment for life and that the expression occurring in section 437 viz., ..offence punishable with death or imprisonment for life' does not extend to an offence punishable with 'imprisonment for life' only. the kerala high court further observed:'the legislature has made a liberal approach in the matter of granting bail and has shown its disapproval in the matter of keeping an accused person in custody in cases where he is ordinarily entitled to bail. the purpose of keeping a person in custody is to ensure his appearance in court at the time of trial and that he is also made available for the purpose of execution of the sentence. the purpose is not penal in character.'this judgment of the kerala high court was followed by this court (patnaik, j) in crl.m.p. 3011/89, dt. 25-10-1989. before my learned brother, patnaik, j., the de facto complainant filed a petition challenging the order of the magistrate granting bail to the accused involved in an offence under section 436 i.p.c. keeping in view the decision of the kerala high court, the application so challenging the order was dismissed. the above two decisions squarely apply to the present case and accordingly i do not find any ground to quash the order challenged in this petition.5. the learned counsel for the petitioner sought to place reliance upon some decisions of other high courts, viz., 1928 bombay 244, 1927 rangoon 205, 1958 punjab 123, and 1923 nagpur 131, etc. in view of the judgment of this high court, i am not able to persuade myself with the decisions referred to of the other high courts.6. for the foregoing reasons, the petition is dismissed.

Judgment:
ORDER

Bhaskar Rao, J.

1. This is a petition filed to quash the order of the XVII Metropolitan Magistrate, Hyderabad, in C.C. No. 77/89 recalling the Non-Bailable warrant issued against the respondent under Section 70(2) of the Criminal Procedure Code.

2. The brief facts of the case are: The petitioner herein filed a private complaint against the respondent alleging that the Respondent kidnapped him with the aid and assistance of some others, kept him in illegal custody for over one week and therefore liable for punishment under Sections 324, 395, 379, 343, 365, 367 and 368 I.P.C. The Magistrate took cognizance of the offence and since the process could not be served, the N.B.W. was issued by the Magistrate against the respondent for execution through an Advocate-Commissioner. However, the Advocate-Commissioner returned the N.B.W. on 3-8-1989 unexecuted. While so on 4-8-89 the respondent appeared before the Court and filed a petition, to recall the N.B.W. which was ordered. It is this order of recalling the N.B.W., that is questioned in these proceedings under Section 482 Cr.P.C.

3. The contention of the learned counsel for the petitioner is that the Magistrate having taken cognizance of the offence triable by a Sessions Court, has no jurisdiction to recall the N.B.W., issued and that he has alone to commit the accused to judicial custody, and that if at all the accused could move the Sessions Court for bail under Section 437 Cr.P.C. The learned counsel for the respondent-Accused, on the other hand, contended that the Magistrate in appropriate cases has power to recall the N.B.W. issued by him. Even if there is no power, to recall the N.B.W., he submitted, the Magistrate could release the accused on bail under Section 437 Cr.P.C.

4. There is no dispute in this case that the maximum punishment for the most grievous offence taken cognizance of in this case is 'imprisonment for life', that the N.B.W., issued to the Advocate-commissioner was returned unserved on 3-8-89 and that on 4-8-1989 the respondent appeared before the Court. It must be noted that the respondent in this case is an Inspector of Police, Railway Protection Force and that a case filed by him regarding theft of railway property is pending against the petitioner. As submitted by the learned counsel for the respondent even taking that the Magistrate has no power to recall the warrant issued under Section 70(2) Cr.P.C., still under Section 437 Cr.P.C. he has power to release the accused-respondent on bail. Then the question is whether in a case exclusively triable by the Court of Session, the Magistrate could release the accused on bail under Section 437 Cr.P.C. This question was considered by the Kerala High Court in Satyam v. State, 1989 Crl.L.J. 1313 (Kerala). It was held therein that the Magistrate is not justified in holding that he had no power to grant bail to the accused before him, who was involved in an offence punishable with 'imprisonment for life', solely on the ground that the offence is exclusively triable by a Court of Session. It further held that the prohibition against grant of bail is confined to the cases where the sentence prescribed is either death or alternatively imprisonment for life and that the expression occurring in Section 437 viz., ..offence punishable with death or imprisonment for life' does not extend to an offence punishable with 'imprisonment for life' only. The Kerala High Court further observed:

'The legislature has made a liberal approach in the matter of granting bail and has shown its disapproval in the matter of keeping an accused person in custody in cases where he is ordinarily entitled to bail. The purpose of keeping a person in custody is to ensure his appearance in Court at the time of trial and that he is also made available for the purpose of execution of the sentence. The purpose is not penal in character.'

This judgment of the Kerala High Court was followed by this Court (Patnaik, J) in Crl.M.P. 3011/89, dt. 25-10-1989. Before my learned brother, Patnaik, J., the de facto complainant filed a petition challenging the order of the Magistrate granting bail to the accused involved in an offence under Section 436 I.P.C. Keeping in view the decision of the Kerala High Court, the application so challenging the order was dismissed. The above two decisions squarely apply to the present case and accordingly I do not find any ground to quash the order challenged in this petition.

5. The learned counsel for the petitioner sought to place reliance upon some decisions of other High Courts, viz., 1928 Bombay 244, 1927 Rangoon 205, 1958 Punjab 123, and 1923 Nagpur 131, etc. In view of the Judgment of this High Court, I am not able to persuade myself with the decisions referred to of the other High Courts.

6. For the foregoing reasons, the petition is dismissed.