MUDHOLKAR - (1.) THE following judgment of the court was delivered by :
(2.) 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 16/09/1961, 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. 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, belaboured 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.
(3.) 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 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 producing 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 Commissioner. 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 JUDGEMENT_871_AIR(SC)_1965Html1.htm Mr. Kohli, however, said that the delegation of power is ineffective 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. ;