Kerala High Court
Ajikumar vs District Collector on 23 March, 2020
Author: Shaji P.Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 23RD DAY OF MARCH 2020 / 27TH PHALGUNA, 1941
WA.No.265 OF 2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 6458/2010 OF HIGH COURT OF
KERALA
APPELLANTS/PETITIONERS:
1 AJIKUMAR
AGED 49 YEARS
S/O. LATE SREEDHARAN, PUTHEN VEEDU, PUNNAMOODU,
KOODAL P.O, PATHANAMTHITTA - 689 693
2 SAROJINI,
W/O. LATE SREEDHARAN, PUTHEN VEEDU, PUNNAMOODU,
KOODAL P.O, PATHANAMTHITTA - 689 693
BY ADVS.
SRI.LIJU.V.STEPHEN
SMT.INDU SUSAN JACOB
RESPONDENTS:
1 DISTRICT COLLECTOR
2ND FLOOR, COLLECTORATE RD, CHITTOOR, PATHANAMTHITTA,
KERALA - 689 645
2 TAHSILDAR (REVENUE RECOVERY)
TALUK OFFICE, ADOOR TALUK, PATHANAMTHITTA DISTRICT ,
KERALA 689 645
SR.GP SRI. TEK CHAND FOR RESPONDENTS
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20-02-2020,
THE COURT ON 23-03-2020 DELIVERED THE FOLLOWING:
WA.No.265 OF 2020 2
C.R.
JUDGMENT
SHAJI P.CHALY,J.
Instant Writ Appeal is directed against the judgment of the learned Single Judge in W.P.(C) No.6458/2010, by the writ petitioner.
2. The writ petition was dismissed by the learned Single Judge holding that, the appellants are not entitled to secure the following reliefs as is sought for in the writ petition.
(i) to issue a writ of certiorari or other appropriate writ, order or direction quashing Exts.P5 & P6.
(ii) to issue such other appropriate writ, order or direction that may be deemed to be just and equitable in the facts and circumstances of the case.
(iii) award the entire costs of this Writ petition.
3. Brief material facts for the disposal of the writ appeal are as follows; as per Ext.P1 judgment dated 31.1.2003 in Session Case No.63/2019, one Sreedharan was convicted for the offence punishable under section 55(a) of the Abkari Act (Act 1 of 1077), and sentenced to undergo rigorous imprisonment for one year, and to pay a fine of Rs.1 lakh and in default, to undergo simple imprisonment for six months. Criminal WA.No.265 OF 2020 3 Appeal No.484/2003 preferred before this Court by the accused culminated in Ext.P2 judgment dated 17.6.2009, affirming the conviction, however, modifying the sentence to simple imprisonment for three months and fine of Rs.1 lakh with default sentence for a period of one month. Sreedharan died on 13.7.2009. Thereupon Exts.P5 & P6 notices dated 10.2.2009 and 16.2.2010 respectively, were issued against the legal heirs under sections 7 & 34 of the Kerala Revenue Recovery Act to recover the fine amount of Rs.1 lakh with other charges, which was the subject matter of challenge in the writ petition.
4. The learned Single Judge after considering section 68 of the Abkari Act, and section 70 of the Indian Penal Code r/w section 421 of the Code of Criminal Procedure held that, the legal heirs are liable to pay the fine amount in spite of the death of Sreedharan and therefore, recovery initiated by the respondents was in accordance with law. It is thus assailing the judgement, this writ appeal is filed.
5. The contention advanced by the learned counsel for appellants is that, sections 63 to 70 of the Indian Penal Code is the law for recovery of any fines and execution of warrants, however, in the absence of any provision in this regard in any Act, regulation or bye-law, in terms of section 25 of the General Clauses Act, the provisions of sections 63 to 70 of the WA.No.265 OF 2020 4 Indian Penal Code would be inapplicable to the said Act or regulation. It is further contended that, while legislature enacted the Abkari Act incorporating an express provision stipulating in section 68 of the Abkari Act, that only sections 66, 67 & 68 of the Indian Penal Code would be applicable to the offences under the Abkari Act, Section 70 of the Indian Penal Code is excluded. Therefore, the contention put forth is that, the legislature had intentionally and deliberately excluded the applicability of Section 70 of the Indian Penal Code from the Abkari Act and accordingly there is no law in the Abkari Act empowering the authority to proceed against the property of the deceased offender to recover the fine amount, and viewed in that circumstances, learned Single Judge failed in not interfering with the recovery action initiated against the appellants.
6. We have heard learned counsel for appellants, Sri.Liju V. Stephen and learned Senior Government Pleader, Sri.Tek Chand and perused the pleadings and materials on record.
7. Section 68 of the Abkari Act, 1071 deals with provisions of Code of Criminal Procedure and Indian Penal Code applicable to offences committed under the Act, which read thus:
"68. Provisions of Code of Criminal Procedure and Indian Penal Code applicable to offences committed under the Act.- The provisions of the Code of Criminal Procedure, 1973 (Central Act 2 WA.No.265 OF 2020 5 of 1974), relating to execution, so far as the same are applicable, and sections 67, 68 and 69 of the Indian Penal Code shall apply to all offences committed and to all persons punished under the provisions of this Act."
8. Relying upon the said provision, it is the contention of the learned counsel for appellants that, section 68 of the Abkari Act has consumed only sections 67, 68 & 69 of the Indian Penal Code and rest of the provisions of the Indian Penal Code are excluded and therefore, section 70 of the Indian Penal Code cannot be imported for the purpose of recovery of the fine amount from the legal heirs of deceased Sreedharan. Sections 67, 68 and 69 of the Indian penal Code read thus:
"67. Imprisonment for non-payment of fine, when offence punishable with fine only.--If the offence be punishable with fine only, 1[the imprisonment which the Court imposes in default of payment of the fine shall be simple, and] the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say, for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any term not exceeding four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case.WA.No.265 OF 2020 6
68. Imprisonment to terminate on payment of fine.--The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.
"69. Termination of imprisonment on payment of proportional part of fine.--If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate."
9. On a reading of the said provisions, it is clear that, they are dealing with the regulation of imprisonment for non-payment of fine, imprisonment to terminate on payment of fine and termination of imprisonment of payment of proportional part of fine. Section 70 of the Indian Penal Code deals with fine leviable within six years, or during imprisonment, and death not to discharge property from liability, which read thus:
"70. Fine leviable within six years, or during imprisonment
--Death not to discharge property from liability.--The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, WA.No.265 OF 2020 7 then at any time previous to the expiration of that period; and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts."
10. In this regard section 25 of the General Clauses Act, 1897, is relevant to the context, which read thus:
"25. Recovery of fines.-- Sections 63 to 70 of the Indian Penal Code (45 of 1860) and the provisions of the Code of Criminal Procedure for the time being in force in relation to the issue and the execution of warrants for the levy of fines shall apply to all fines imposed under any Act, Regulation, rule or bye-law, unless the Act, Regulation, rule or bye-
law contains an express provision to the contrary."
11. Therefore, it contemplates that unless there is express provision to the contrary to sections 63 to 70 of the Indian Penal code (45 of 1860) and the provisions of the Code of Criminal Procedure for the time being in force in relation to the issue and the execution of warrants for the levy of fines shall apply to all fines imposed under any Act, regulation etc. etc.
12. On a reading of afore provisions, it is explicit, clear and unequivocal that Sections 63 to 70 of the Indian Penal Code and the provisions of the Code of Criminal Procedure specified in section 25 of Act, 1897 would apply to any Act, Regulation, Rules or Bye-law unless the aforesaid legislations contain an express provision to the contrary. Relying WA.No.265 OF 2020 8 upon the said provision, it is contended by the learned counsel for appellants that, since section 70 of the Indian Penal Code is not included in section 68 of the Abkari Act, it is an express exclusion and therefore, fine amount cannot be realised.
13. On the other hand learned Government Pleader has invited our attention to section 4(2) of the Code of Criminal Procedure, 1973 dealing with trial of offences under the Indian Penal Code and other laws, which read thus:
"4(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."
14. Accordingly, it is submitted that, so far as the procedure for trial of offences and consequential action under any other law is concerned, it is taken care of under section 4(2) of the Code of Criminal Procedure and therefore, the provisions of section 421 of the Code of Criminal Procedure would clearly apply irrespective of the specific inclusion of sections 67 to 69 of the Indian Penal Code in section 68 of the Abkari Act for recovery of the fine amount from the legal heirs, and that, specific inclusion of some of the provisions of the Indian Penal Code and the Code of Criminal Procedure WA.No.265 OF 2020 9 could not be treated as express provision to the contrary. Section 421 Cr.P.C. read thus:
421. Warrant for levy of fine.-(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357.
(2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law:
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender."
15. We have considered the rival submissions made across the Bar. In our considered opinion, section 68 of the Abkari Act specifically includes sections 67, 68 and 69 of Indian Penal Code and also the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) relating to issue of execution of warrants for the levy of fine. Therefore, mere inclusion of WA.No.265 OF 2020 10 certain provisions of the Indian Penal Code and the Code of Criminal Procedure does not mean that those are express provisions contrary to the provisions of the Indian Penal Code and the Code of Criminal Procedure to the extent specified in section 25 of the General Clauses Act, 1897. On the other hand in order to mean that a provision is express provision to the contrary, there should be either an express exclusion of the provisions of the Indian Penal Code, by specifically stating so or by making substantive provisions of law under section 68 of the Abkari Act to recover the fine amount from the legal heirs thus excluding the provisions of the Indian Penal Code and the Code of Criminal Procedure to the extent specified in section 25 of the General Clause Act, 1897. We are also of the view that, it is basic and fundamental, that the courts should not approach a provision of law or an enactment with the intention to search for defects in drafting, much less inexactitude in the word, phraseology or language employed. On the contrary the attempt of the courts must be to ascribe meaning to the provision of law taking into account the intention of the legislature and the purpose and purport for which enactment was brought into force. Which thus means the immediate response of the court to a law made by the legislature must be to identify the scope and application of it. WA.No.265 OF 2020 11
16. Thinking and evaluating so, it is clear that, section 68 of the Abkari Act only adopts certain of the provisions of the Indian Penal Code viz., 67, 68 and 69 for the purpose of regulating imprisonment on failure to pay the fine amount and on payment of fine partially alone and nothing more or nothing less. There is no case for the appellants that there is any express provision in the Abkari Act excluding section 70 of the Indian Penal Code dealing with recovery of fine amount from the legal heirs of the accused.
17. Therefore, the contention advanced by learned counsel for appellants that by virtue of section 25 of the General Clauses Act, 1897 since there is express exclusion of section 70 of the Indian Penal Code, the respondents are not entitled to initiate any recovery proceedings against the appellants cannot be legally or factually sustained. Rather, in our view, in order to have the implication of section 25 of the General Clauses Act, 1897, there should be an express provision excluding section 70 and other provisions from the provisions of the Abkari Act.
18. The term "express" is defined in Black's Law Dictionary, Ninth Edition, to mean "clearly and unmistakably communicated." Therefore, in the absence of any such provision under section 68 of the Abkari Act, one cannot be heard to say that, there is an express provision contrary WA.No.265 OF 2020 12 to section 70 of the Indian Penal Code in section 68 of the Abkari Act. As is stated above, express exclusion can only be either an exclusion employing appropriate terminology, or by implication thus substituting the substantive law and procedure for dealing with the actions under the particular enactment.
19. Evaluating so, section 68 further makes it clear that, legislature never intend to exclude any other provisions of the Indian Penal Code from the provisions of the Abkari Act and according to us, if such a view is adopted, the result will be disastrous. If the purpose and object of an enactment or law is plain and unambiguous, it is not for a court of law to supply words and provide meaning, which would be nothing but doing violence to the provisions of law. Therefore, to catch up with the arguments of the learned counsel for appellants, we need to mince words and phraseology employed in section 68 of the Abkari Act and section 25 of the General Clauses Act.
20. Needless to say, applicability and inapplicability and inclusion and exclusion are different connotations, having different meanings, and one cannot be substituted for the other in a given circumstance. Therefore, the attitude and approach of the courts must be to translate WA.No.265 OF 2020 13 the intention of the legislature unless the provision has some basic and fundamental flaw making it totally unworkable and meaningless. Said so, if and when a question arise as to the meaning of a certain provision in any enactment, it is only proper and appropriate to read the provision contextually and in order to identify the context and the intention, the entirety of the statute must be taken into account.
21. It is also a well settled principle that, the language of the statute should be read as it is and the intention must be gathered from the language employed and it is not the duty of the court to substitute words in a provision of law, which is to be normally avoided. It is also not the duty of the court to stretch or expand the words and provide meaning to any provision of law. Moreover, penal statutes are to be construed strictly since penalties are provided for disobedience of law, some of which are a menace to the society as such. Similar is the case of the Abkari Act, which is brought into force with the intention of consolidating the law relating to import, transport, manufacture, sale and possession of intoxicating liquor and of intoxicating drugs in the State of Kerala.
22. In this context, we are also reminded of the legal maxim 'casus WA.No.265 OF 2020 14 omissus', which is defined under the Black's Law Dictionary as follows;
"A situation not provided for by a statute or contract, and therefore governed by case law or new judge-made law."
23. Reference to a few of the judgments of the Apex Court would be relevant and appropriate in this regard. In R.M.D.C. v. Union of India, [AIR 1957 SC 628], it is held as follows:
"Now, when a question arises as to the interpretation to be put on an enactment, what the court has to do is to ascertain ' the intent of them that make it', and that must of course be gathered from the words actually used in the statute. That, however, does not mean that the decision should rest on a literal interpretation of the words used in disregard of all other materials. 'The literal construction then', says Maxwell on the Interpretation of Statutes, 10th edn., p. 19, 'has, in general, but prima facie preference. To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act; to consider, according to Lord Coke : (1) What was the law before the Act was passed; (2) What was the mischief or defect for which the law had not provided; (3) What remedy Parliament has appointed; and (4) The reason of the remedy'. The reference here is to Heydon's case [1584] 3 Co Rep 7; 76 ER 637 . These are principles well settled, and were applied by this court in Bengal Immunity Co. Ltd. v. State of Bihar MANU/SC/0083/1955 : [1955] 2SCR603 . To decide the true scope of the present Act, therefore, we must have regard to all such factors as can legitimately be taken into account in ascertaining the intention of the Legislature, such as the history of the legislation and the purpose WA.No.265 OF 2020 15 thereof, the mischief which it intended to suppress and the other provisions of the statute, and construe the language of s. 2(d) of the Prize Competitions Act, 1955, in the light of the indications furnished by them."
In CIT v. Indian Bank Ltd. [1965] 56 ITR 77 (SC)], it is held as follows:
"In our opinion, in construing the Act, we must adhere closely to the language of the Act. If there is ambiguity in the terms of a provision, recourse must naturally be had to well-established principles of construction but it is not permissible first to create an artificial ambiguity and then try to resolve the ambiguity by resort to some general principle."
In Commissioner of Income Tax, Central, Calcutta v. National Taj Traders [(1988) 121 ITR 535(SC) =AIR 1980 SC 485], it is held as follows in paragraph 10:
"The basic principle of interpretation is that if the statute is plain and free from any ambiguity, a bare reading of the statute would be sufficient and no interpretation would be called for. On the other hand, if the statute is ambiguous or its meaning uncertain, it would be the duty of the court to ascertain what the Legislature meant. There may be instances where the words do not clearly bring out the legislative intent. This may be due to the fact that the language used in a particular enactment either exceeds or falls short of expressing the meaning intended. In such circumstances, the court is obliged to interpret the statute by discovering the true intention of the Legislature. "WA.No.265 OF 2020 16
Similarly in Seaford Court Estates Ltd. v. Asher [(1949)2 ALL ER 155], it is held as follows by Lord Denning, "Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even, if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to given force and life to the intention of the Legislature. That was clearly laid down by the resolution of the judges in Heydon's case [1584] 3 Co. Rep. 7a, and it is the safest guide today. Good practical advice on the subject was given about the same time by Plowden in his note Eyston v. Studd [1574] 2 Plowden, 463. Put into homely metaphor it is this : A judge should ask himself the question : If the makers of the Act had themselves come across this ruck in the texture of it, how would they WA.No.265 OF 2020 17 have straightened it out ? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases."
"Denning L.J. reiterated the same view in Magor and St. Mellons R.D.C. v. Newport Corporation [1950] 2 All ER 1226) thus : "I have no patience with an ultra-legalistic interpretation which would deprive them of their rights altogether. I would repeat what I said in Seaford Court Estates Ltd. v. Asher [1949] 2 All ER 155. We do not sit here to pull the language of Parliament and of Ministers to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which lawyers are too often prone. We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis". No doubt, this observation of Denning L.J. received severe criticism at the hands of Lord Simonds when the matter was taken up to the House of Lords."
Likewise in CIT v. Vaidyanathan (1985) 153 ITR [Mad.)(F.B) at page 11, it is held as follows in page 41:
"Salmond in his book (Salmond on Jurisprudence), 12th edition, at page 131, deals with cases where the letter of the law need not be taken as conclusive in the matter of interpretation of enacted law. The learned author at page 137 has observed as follows :
"If the text contains omissions which make it logically imperfect, the reason is more often that the case in question has not occurred to the mind of the Legislature, than that there exists with respect to it a real intention which by inadvertence has not been expressed. What, then, is the rule of interpretation in such cases ? May the courts WA.No.265 OF 2020 18 correct and supplement the defective sentential legis, as well as the defective literal legis ? The answer is that they may and must. If the letter of the law is logically defective, it must be made logically perfect, and it makes no difference in this respect whether the defect does or does not correspond to one in the sententia legis itself. Where there is a genuine and perfect intention lying behind the defective text, the courts must ascertain and give effect to it; where there is none, they must ascertain and give effect to the intention which the legislature presumably would have had, if the ambiguity, inconsistency or omission had been called to mind. This may be regarded as the dormant or latent intention of the legislature, and it is this which must be sought for as a substitute in the absence of any real and conscious intention."
In CIT v. National Taj Traders MANU/SC/0310/1979 : [1980] 121 ITR 535, the Supreme Court stated the rule of casus omissus thus (headnote) :
"A casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature."
The above being the true principle of casus omissus, a case of casus omissus cannot be readily confined. It is the duty of the court to WA.No.265 OF 2020 19 address itself to the question what exactly was the true intention of the Legislature. Would the Legislature have omitted to provide for the case if the omission had been called to its mind. If the answer is in the negative, then it is the duty of the court to supplement what the Legislature omitted to expressly say and should not decline to do so by taking refuge on the doctrine of casus omissus.
24. We also deem it appropriate and fit to refer to Maxwel's interpretation of Statute, 12th Edition, which read thus:
"Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the Legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Lord Reid has said that he prefers to see a mistake on the part of the draftsman in doing his revision rather than a deliberate attempt to introduce an irrational rule : 'the canons of constructions are not so rigid as to prevent a realistic solution'."
Craies on Statute Law, 7th Edition, read thus:
"If the language of an Act of Parliament is clear and explicit, it WA.No.265 OF 2020 20 must as already stated, receive full effect, whatever may be the consequence. Of many Acts, however, it can fairly be said, as was said by Lord Herschell in Western Suburban, etc., Building Society v. Martin [1886] 17 QBD 609 of the Building Societies Act, 1884, that no construction 'is free from difficulty, and no construction carries out a clear, defined and well-indicated policy on the part of the Legislature'. If (as is often the case) the meaning of an enactment, whether from the phraseology used or otherwise, is obscure, or if the enactment is, as Brett L.J. said in The R. L. Alston [1883] 8 PD 5 'unfortunately expressed in such language that it leaves it quite as much open with regard to its form of expression, to the one interpretation as to the other', the question arises, 'what is to be done ? We must try and get at the meaning of what was intended by considering the consequence of either construction.' And if it appears that one of these constructions will do injustice, and the other will avoid that injustice, 'it is the bounden duty of the court to adopt the second, and not to adopt the first, of those constructions. However 'difficult, not to say impossible', it may be to put a perfectly logical construction upon a statute, a court of justice 'is bound to construe it, and as far as it can, to make it available for carrying out the objects of the Legislative, and for doing justice between parties."
Crewford in his Statutory Construction has stated the principle as follows:
"Since the Legislature must express its intention by a written statute, that intention, in any instance, must primarily be ascertained from the language used in the statute itself, and not from conjectures alinude. In other words, before the court can resort to any other source for assistance, it must first seek to find the legislative intention from the WA.No.265 OF 2020 21 words, phrases and sentences which make up the statute subject to construction. If the meaning of the language of the statute is plain, then, according to the rule announced in innumerable cases, there is really no need for construction as the legislative intention is revealed by the apparent meaning, that is, the meaning clearly expressed by the language of the statute. In this case, the statute is given a literal interpretation. It is interpreted to mean exactly what it says. Only where the statute is of doubtful meaning can the court endeavor to determine the legislative intention from elements beyond the language of the statute. It may also make use of the various pertinent rules of construction in its efforts to ascertain the legislative intent in an ambiguous statute. The legislative intention is not found in these rules of construction but is revealed by them. They perform the function of a microscope. The same is true with reference to the subject-matter of the statute, the purpose or object of its enactment, its effect and consequence, its occasion and necessity, and its logic-all of which are not sources of the legislative intent but aids to its discovery. In other words, the court resorts to these aids not for the legislative intent but simply to identify it. The language is the reservoir of the legislative intention. It must in some feeble manner, at least, reveal some intention; otherwise, as we will hereafter see, the statute will completely fall. For if the statute is without meaning, the court cannot supply one, as that would involve an encroachment upon the legislative power."
25. That apart the Apex Court had occasion to consider a similar issue under section 55(a) &(g) of the Kerala Abkari Act, 1077 in Criminal Appeal No.77 of 2020 and rendered a judgment dated 21.1.2020, wherein it was held that the provisions of section 70 would apply in the matter of recovery WA.No.265 OF 2020 22 of fine from the legal heirs of the deceased accused. However, learned counsel for petitioners submitted that, therein section 68 of the Abkari Act was not taken into account. But we are of the opinion that when a judgment was rendered principally holding that section 70 of the Indian Penal Code applies in the matter of recovery of fine from the legal heirs, it can only be legally presumed that the Apex Court had taken into account all relevant provisions of law to arrive at such a conclusion. So much so, we are of the view that the liability of the legal heirs of an accused, can only be termed as a civil liability, and therefore, the extent of liability to pay the fine amount can only be under section 50 of the Code of Civil Procedure which read thus:
"50.Legal representative.- (1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.
(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit."WA.No.265 OF 2020 23
26. On evaluating the provision, we are of the opinion that the legal representatives of the accused have the liability to the extent specified under section 50 of the Code of Civil Proceudre, 1908 as specified above.
27. On an understanding of the principle of law laid down by the courts as above and the interpretation given to the maxim casus omissus by authorities on law makes it clear that it is not for the courts to supply words and find out meaning to a provision of law. It is also equally important to note that no words or expression used in any statute can be said to be redundant or irrelevant whenever the language employed is clear so as to understand the intention of the legislature. Meaning intended by the legislature from the whole statute can be gathered and further addition or substitution of words has to be avoided. We are of the considered opinion that, merely because the provisions of section 68 of the Abkari Act could have been worded differently, will not affect the meaning provided to expressly under section 68 of Abkari Act, which in our considered opinion clear and unambiguous.
28. Taking into account the aforesaid aspects, we have no hesitation to hold that, the learned Single Judge was right in dismissing the writ petition filed by the appellants and there are no established WA.No.265 OF 2020 24 reasons before us to interfere with the judgment in an intra court appeal under section 5 of the Kerala High Court Act.
Upshot of the above discussion is, the writ appeal fails, accordingly it is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE