Kanwar Singh Vs. Delhi Administration - Court Judgment

Excerpt:
the members of a raiding party led by the licensing inspector of the delhi corporation, while taking the stray cattle to the cattle pound, were beaten by the appellants - as a result, the members had received the injuries - it was contended that there should be a proper delegation who would have an authority to impound the cattle, secondly the said cattle were not 'abandoned' or 'ownerless,' there fore could not be legally impounded - it was further contended that the injuries inflicted by the appellant was a lawful exercise of their right to defence their private property - it was held that the commissioner had had authorised the licensing inspector to impound the stray cattle - also, the word 'abandon' under section 418 of the delhi municipal corporation act, 1957, was not intended to state that the cattle must be 'ownerless' - it was also ruled that appellants had no right of private defence as the act was fully justifiable by the law - section 37 :[d.k.jain & r.m.lodha,jj] nature and scope- scope of power of high court to grant bail under effect of non obstante clause - conditions and limitations for grant of bail - reasonable grounds- held, while dealing with the bail application the high court appears to have lost sight of the mandatory requirements of section 37 of the ndps act thus the order is clearly unsustainable. the broad principles which should weigh with the court in granting bail in a non-bailable offence have been enumerated in a catena of decisions of the supreme court. when a prosecution/conviction is for offence(s) under a special statute and that statute contains specific provisions for dealing with matters arising thereunder, these provisions cannot be ignored while dealing with such an application. the respondent has been convicted and sentenced for the offences under the ndps act and therefore, while dealing with his application for grant of bail, in addition to the broad principles to be applied in prosecution for the offences under the penal code, 1860 the relevant provision in the said special statute in this regard had to be kept in view. it is plain from a bare reading of the non obstante clause in section 37 of the ndps act and sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the ndps act is not only subject to the limitations imposed under section 439 of the code of criminal procedure, 1973, but also subject to the restrictions placed by clause (b) of sub-section (1) of section 37 of the ndps act. apart from giving an opportunity to the public prosecutor to oppose the application for such release, the other twin conditions viz. (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. the conditions are cumulative and not alternative. the satisfaction contemplated regarding the accused being not guilty, has to be based on reasonable grounds. the expression reasonable grounds in section 37(1)(b)(ii) has not been defined in the said act but means something more than prima facie grounds. it connotes substantial probable cause for believing that the accused is not guilty of the offence he is charged with. the reasonable belief contemplated in turn, points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the ndps act. while considering an application for bail under section 37 of the ndps act, the court is not called upon to record a finding of not guilty. at this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether of not the accused has committed offence under the ndps act. what is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said act while on bail. the satisfaction of the court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail. it is evident that the circumstances which have weighed with the high court to conclude that it was a fit case for grant of bail are: (i) that nothing has been found from the possession of the respondent; (ii) he is in jail for the last three years, and (iii) that there is no chance of his appeal being heard within a period of seven years. these circumstances may be relevant for grant of bail in matters arising out of conviction under the penal code, 1860, etc. but are not sufficient to satisfy the mandatory requirements as stipulated in section 37(1)(b) of the ndps act. merely because nothing was found from the possession of the respondent, it could not be said that the respondent was not guilty of the offences for which he had been charged and convicted. the impugned order having been passed ignoring the mandatory requirements of section 37 of the ndps act, cannot be sustained. hence, the matter remitted back to the high court for fresh consideration of the bail application keeping in view the parameters of section 37 of the ndps act. the bail application shall be taken up for consideration only after the respondent surrenders to custody. sections 37(1)(b) & 27-a & 29 :[d.k.jain & r.m.lodha,jj] grant of bail grounds for and matters to be considered respondent charged with financing and trading in 14.900 kilograms of heroin - sentenced to 10 years ri and fined rs 1 lakh - high court allowing bail application, citing reasons that nothing was found from respondents possession, he had been in jail since past three years and no chance of his appeal being heard within seven-year period - held, these circumstances are not sufficient to satisfy the mandatory requirements of section 37(1)(b). matter remitted to high court for fresh consideration of the application. bail application to be considered only after respondent surrendered to custody. sections 37(1)(b) & 27-a & 29 :[d.k.jain & r.m.lodha,jj] grant of bail grounds for and matters to be considered respondent charged with financing and trading in 14.900 kilograms of heroin - sentenced to 10 years ri and fined rs 1 lakh - high court allowing bail application, citing reasons that nothing was found from respondents possession, he had been in jail since past three years and no chance of his appeal being heard within seven-year period - held, these circumstances are not sufficient to satisfy the mandatory requirements of section 37(1)(b). matter remitted to high court for fresh consideration of the application. bail application to be considered only after respondent surrendered to custody. - 2 kishan singh sustained a grievous injury as well as some simple injuries, p. 332 was bad in law. 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' 11. in the third column the designation of the municipal employees to whom the power is delegated has also been given. to liberate'.several other meanings of the word have been given both in that dictionary as well as in wharton's law lexicon. 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 grevious hurt, if done, or attempted to be done by the direction of a public servant acting in good faith under colour of his office.mudholkar, j.1. this is an appeal by special leave from the summary dismissal of the appellants' application for revision by the high court of punjab. 2. 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 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 sentence 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 appellant 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. 3. 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 neighbourhood 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-catchers 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. 4. 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. 5. 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. 6. 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. 7. the power to impound stray cattle in 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;' 8. 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 sections 417.' 9. 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, i 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 scopemunicipal employees-----------------------------------------------------------------------418(1) seizure of certain licensing inspectors in respect ofanimals stray cattle only.cattle catchers do.------------------------------------------------------------------------ 10. 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' 11. 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. 12. 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 means '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 employee the commissioner shall be required to be present. 13. 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 be 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. 14. 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 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 meaning 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. i. 15. in the oxford dictionary the word is also said to means '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 to english law under 'abandonment' are given cases given cases from which it would appear that different meanings have been given to 'abandonment' in different statutes. 16. 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 is literal meaning to a word used by the draftsman, particularly in a penal stature, 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 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. 17. upon the finding that the raiding party was entitled in law to impounded the cattle no question of private defence arises. for, s. 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 grevious hurt, if done, or attempted to be done by the direction of a public servant acting in good faith under colour of his office. the protection extends even to acts which will not be strictly justifiable by law. but here the act was fully justifiable by the law. there is thus no substance in the second point either. 18. the appeal is dismissed. 19. appeal dismissed.