Kanwar Singh Vs. Delhi Administration
[1964] INSC 169 (5 August 1964)
05/08/1964 MUDHOLKAR, J.R.
MUDHOLKAR, J.R.
DAYAL, RAGHUBAR SIKRI, S.M.
CITATION: 1965 AIR 871 1965 SCR (1) 7
CITATOR INFO:
R 1974 SC1158 (4) RF 1991 SC1289 (16)
ACT:
Delhi Municipal Corporation Act, 1957 (Act 66
of 1957), s. 418(1)--Impounding of cattle-Delegation of authority, scope
of-"Abandoned" meaning of-Private defence under s. 99,Indian Penal
Code, 1860, extent of.
HEADNOTE:
The members of a raiding party led by the
Licensing Inspector of the Delhi Corporation having taken into custody 25 or 30
stray cattle were, while taking them to the cattle pound, belaboured with
lathis by the three appellants and their friends, as a result of which they
received injuries.
It was contended on behalf of the appellants
that (i) there was no proper delegation 'of authority to impound cattle in
favour of the persons forming the raiding party, by the Commissioner, whose
personal presence to supervise the exercise of the delegated authority was, in
any case, required by the very order delegating the authority; (ii) the cattle
were not "abandoned" in the sense of being "ownerless", and
therefore could not be legally impounded;
and (iii) that the injuries were inflicted by
the appellants in the lawful exercise of their right of private defence of
property.
HELD : (i) The order of the Commissioner
placed before the Court along with the statement of case proved that the Commissioner
had authorised licensing Inspectors to impound stray cattle. Section 418(1) of
the Delhi Municipal Corporation Act, 1957 (Central Act 66 of 1957), did not
require that the delegation of power must be to particular, named, individuals.
Nor was the personal presence of the Commissioner to supervise the exercise of
the delegated power necessary although according to the terms of the order the
delegation was "subject to my supervision', control and revision."
[11E-F].
(ii) In the context in which the word
"abandoned" occurred in section 418(1), the meaning which can
reasonably be attached to it is "let loose" in the sense of being
"left unattended" and certainly not "ownerless". It is the
duty of the Court in construing a statute to give effect to the intention of
the legislature so as to "advance the remedy and suppress the
mischief". The legislature when it used the word "abandoned" in
section 418(1) did not intend to say that the cattle must be
"ownerless". [12E-G].
Maxwell on Interpretation of Statutes (11th
Edn.) pp. 221- 224 and 266, referred to.
(iii) Section 99 of the Indian Penal Code
specifically says that there is no right of private defence against an act
which does not reasonably cause the apprehension of death or of grievous hurt,
if done, or attempted to be done by the direction of a public servant acting in
good faith, tinder colour of his office. The protection extends even to acts
which will not be strictly justified by law. In the present case the act was
fully justifiable by the law.
There was thus no right of private defense
that could be claimed by the appellants. [13B-C].
8
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 24 of 1963.
Appeal by special leave from the judgment and
order dated November 19, 1962, of the Punjab High Court (Circuit Bench) at
Delhi in Criminal Revision No. 337-D of 1962.
R. L. Kohli, for the appellants.
H. R. Khanna and R. N. Sachthey, for the
respondent.
The Judgment of the Court was delivered by
Mudholkar J. This is an appeal by special leave from the summary dismissal of
the appellants' application for revision by the High Court of Punjab.
Eight persons were tried by the Assistant
Sessions Judge, Delhi, for offences under s. 148, S. 333/149, and s. 332/149, Indian
Penal Code. He acquitted five of them but convicted the three appellants before
us of all the three offences and sentenced them to undergo rigorous
imprisonment for one year in respect of the offence under S. 148, rigorous
imprisonment for two years in respect of the offence under S. 332/149, rigorous
imprisonment for three years for the offence under S. 333/149 and ordered that
all the sentences will run concurrently. In appeal the Additional Sessions
Judge, Delhi, set aside the convictions and sentences passed on the appellants
for offences under S. 148 and S. 333/149, altered the conviction of each of the
appellants from one under S. 332/149 to S. 322 simpliciter and awarded the same
sentence in respect of it as had been awarded by the Assistant Sessions Judge
in respect of the offence under s. 332/149.
Briefly stated the prosecution case was that
on September 16, 1961, Mukhtiar Singh, Licensing Inspector of the Delhi
Municipal Corporation organised a raiding party for catching stray cattle
within the limits of the Corporation. The party consisted of Balbir Singh,
Enforcement Inspector, H. K. Bhanot, Sanitary Inspector, Kishan Singh, Head Constable,
three foot constables and five cattle-catchers. The party reached the
neigbourhood of Mori Gate Chowk at about 5 a.m.
and rounded up about 25 ,or 30 stray cattle
consisting of buffaloes and cows. While they were taking them to the Nigambodh
Ghat cattle pound via Nicholson Road, the three appellants who were carrying
lathis with them approached the party and threatened them that unless they
released the cattle they would have to face serious consequences. The members
of the party informed them who they were and the cattle-catcbers showed them
their identity cards.
9 They explained to them that it was their
duty to catch stray cattle, to impound them and that the appellants could get
them released by taking the steps provided by the rules.
This, however, only enraged the appellants
who raised shouts asking their friends to come along with lathis in order to
help them to get the cattle released by force. Upon hearing the shouts the
other accused persons arrived at the spot with lathis, joined the appellants
and all of them assaulted the members of the party, caused injuries to them and
got the cattle released by force. As a result of the assault, P.W. 2 Kishan
Singh sustained a grievous injury as well as some simple injuries, P.W. 14
Khem, P.W. 20 Padam Singh, P.W. 10 Iqbal Singh, P.W. 19 Nil Bahadur, P.W. 12
Ram Mehar sustained simple injuries. The incident was seen by a number of
persons who happened to come to the spot at that time.
Eventually a report was lodged with the
police, investigation was taken up and the appellants and the other accused
were placed before a First Class Magistrate, who, after making a preliminary
enquiry, committed them for trial by the Court of Sessions.
We are not concerned with the defence of the
accused persons who were acquitted. The defence of the appellants was that they
were bringing the cattle after grazing and watering them and that when they
approached Mori Gate at about 4.30 a.m. a group of persons under the employment
of the Corporation met them, be laboured them and eventually took them in a van
to the police station. The appellants further say that they had acted in the
exercise of their right of private defence of their property. Their defence has
been rejected 'by the courts below.
Before us Mr. Kohli who appears for the
appellants has raised two points. The first point is that the raiding party had
no authority to seize and impound the cattle and the second point is that the
appellants who were the owners of the cattle had a right of private defence of
their property, that what they did was in exercise of that right and that,
therefore, their conviction under s. 332 was bad in law.
The power to impound stray cattle is
contained in s. 418(1) of the Delhi Municipal Corporation Act, 1957 (66 of
1957), which runs thus :
"If any horses, cattle or other
quadruped animals or birds are kept on any premises in contravention of the
provisions of section 417, or are found abandoned 10 and roaming or tethered on
any street or public place or on any land belonging to the Corporation, the
Commissioner or any officer empowered by him may seize them and may cause them
to be impounded or removed to such place as may be appointed by the Government
or the Corporation for the purpose and the cost of seizure of these animals or birds
and Of impounding...... or removing them and of feeding and watering them shall
be recoverable by sale or by auction Of those animals or birds;" The
proviso which would be relevant in connection with another point runs thus:
"Provided that any one claiming such
animal or bird may, within seven days of the seizure, get them released on his
paying all expenses incurred by the Commissioner in seizing, impounding or
removing and in feeding and watering such animal or bird, and on his pro-
ducing a licence for keeping these animals and birds issued under the
provisions of section 417." The power under this section can be delegated
by the Com- missioner. But according to Mr. Kohli delegation of this power has
not been established in this case. It is true that the Order of the
Commissioner delegating the power under s. 418(1) is not on the record of the
case. It has, however, been placed before us along with the statement of the
case. That order runs thus:
"In exercise of the powers conferred on
me by section 491 of the Delhi Municipal Corporation Act, 1957, 1 hereby direct
that the power conferred on me under section 418(1) of the said Act shall
subject to my supervision, control and revision be exercised also by the
Municipal employees mentioned in column 3 of the schedule given below to the
extent stated in column 4 of the schedule.
Sd/- P. R. Nayak, Commissioner, Municipal
Corporation of Delhi.
SCHEDULE - Section Nature of power
Designation of Scope Municipal employees 418(1) Seizure of certain Licensing Inspectors
In respect of animals Licensing Inspectors stray cattle only do 11 Mr. Kohli,
however, said that the delegation of power is in- effective because, according
to him, it purports to make a general delegation of power and does not specify
the names of persons to whom the power is delegated. A perusal of the schedule
below the order shows that the power of seizure of certain animals is
specifically delegated and it is clearly indicated in column 4 thereof as
follows:
"In respect of stray cattle only"
In the third column the designation of the municipal employees to whom the
power is delegated has also been given. The section does not require the names
of the particular officers in whose favour the delegation is made to be
mentioned. What it requires is to specify the officers to whom the power is
delegated. This only means that the designation of the officers to whom the
power has been delegated need only to be mentioned. That has been done. We may
add that s. 491 of the Delhi Corporation Act permits delegation to any
municipal officer or employee and, therefore, specific individual authorisation
is not necessary.
Then Mr. Kohli says that the words in the
order of delegation shall subject to my supervision, control and revision be
exercised also by the Municipal employees mentioned in column 3 of the
schedule" would show that the Commissioner's actual presence on the spot
was necessary.
It is sufficient to say that "shall
subject to my supervision etc.," does not mean "under my supervision
etc." All that the order contemplates is that the delegation of power to
the municipal employees is not absolute but subject to the overall authority of
the Commissioner. This cannot mean that whenever a delegated power is being
exercised by the municipal employees the Commissioner shall be required to be
present.
Mr. Kohli strenuously contended that the
cattle could not be said to have been "abandoned" because the
appellants who are their owners were actually present near the animals when
they were rounded up. But this contention is contrary to the finding of each of
the courts below which is to the effect that the rounding up operation took
half an hour and that it was after the cattle were rounded up and were being
taken to the cattle pound that the appellants appeared on the scene. This
finding cannot be allowed to be challenged.
A more serious contention of Mr. Kohli,
however, is that under s. 418, cattle, which the Corporation can impound, must
be ownerless or tethered on any street or public place or land 12 belonging to
the Corporation. Admittedly the cattle in question were not tethered on any
such place and, therefore, Mr. Kohli contends that their seizure was not
permissible.
In support of his contention that
"abandoned" implies the complete leaving of a thing as a final
rejection of one's responsibilities so that the thing becomes
"ownerless", Mr. Kohli has referred us to the Law Lexicon and Oxford
Dictionary. The meanings relied on by him are as follows:
"A thing banned or denounced as
forfeited or lost, whence to abandon, desert, or forsake as lost and
gone." Wharton's Law Lexicon.
"To let go, give up, renounce, leave off;
to cease to hold, use or practise." The Oxford English Dictionary, Vol. 1.
In the Oxford Dictionary the word is also
said to mean "to let loose; to set free; to liberate". Several other
meanings of the word have been given both in that dictionary as well as in
Wharton's Law Lexicon. In the latter as also in Jowitt's The Dictionary of
English Law under 'abandonment' are given cases from which it would appear that
different meanings have been given to 'abandonment' in different statutes.
It will thus be seen that the meaning to be
attached to the word 'abandoned' would depend upon the context in which it is
used. in the context in which it occurs in S. 418(1), the meaning which can
reasonably be attached to the word "abandoned" is 'let loose' in the
sense of being 'left unattended' and certainly not 'ownerless'. It is the duty
of the court in construing a statute to give effect to the intention of the
legislature. If, therefore, giving a literal meaning to a word used by the
draftsman, particularly in a penal statute, would defeat the object of the
legislature, which is to suppress a mischief, the court can depart from the
dictionary meaning or even the popular meaning of the word and instead give it
a meaning which will 'advance the remedy and suppress the mischief'. (see
Maxwell on Interpretation of Statutes, 11th edn. pp. 221-224 and 266). In the
Act before us when the legislature used the word "abandoned" it did
not intend to say that the cattle must be ownerless. This is implicit in the
proviso to sub- s. (1) of S. 418 which says that any one 'claiming' an animal
which has been impounded under that sub-section can, within 7 days of seizure,
get it released on fulfilling certain conditions. Such a claim could only be
made by 13 a person who is the owner of the animal impounded or who has at
least the custody of the animal. We cannot, therefore, accept the first point
raised by Mr. Kohli.
Upon the finding that the raiding party was
entitled in law to impound the cattle no question of private defence arises.
For, S. 99 of the lndan Penal Code
specifically says that there is no right of private defence against an act
which does not reasonably cause the apprehension of death or of previous hurt,,
if done, or attempted to be done by the direction of a public servant acting in
good faith under colour of his office. 'Me protection extends even to acts
which will not be strictly justifiable by law. But here the act was fully
justisiable by the law. There is thus no substance in the second point either.
The appeal is dismissed.
Appeal dismissed.
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