Insurance claim - Boat capsized - insurance is inforce - first surveyor reported total loss - not satisfied appointed second surveyor - who doubt that the boat was capsized in orissa coastal waters - which was confirmed by addendum obtained from coastal consultants - Insurance company reputed the claim of Rs.6 lakhs as the vessel had transgressed the required territorial limits - violation of the policy conditions - all forums dismissed the case - Apex court too dismissed the appeal=Kokkilagadda Subba Rao ….Appellant Versus Divisional Manager, United India Assurance Co. Ltd. & Ors. ..Respondents = 2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41425

   Insurance claim - Boat capsized - insurance is inforce -  first surveyor reported total loss - not satisfied appointed second surveyor - who doubt that the boat was capsized in orissa coastal waters - which was confirmed by addendum obtained from coastal consultants - Insurance company reputed the claim of Rs.6 lakhs as the vessel had transgressed the required territorial limits - violation of the policy conditions - all forums dismissed the case - Apex court too dismissed the appeal=

second surveyor submitted its report on  15th  July  1993  but  expressed  a
doubt whether the vessel sank in the Andhra Pradesh coastal  waters  or  the
Orissa coastal waters.    Subsequently,  Coastal  Consultants  submitted  an
addendum to its report on  14th  February  1994  in  consultation  with  M/s
Mohanty Associates. It was then concluded that the fishing boat sank in  the
Orissa coastal waters.  Since  the  vessel  had  transgressed  the  required
territorial limits, there was a violation of the policy conditions.

4.    Based on the report submitted by Coastal Consultants and the  addendum
thereto, the insurance company repudiated the claim  of  Subba  Rao  on  the
ground that contrary to the insurance policy, the boat was used for  fishing
in the high seas and the insurance policy did  not  permit  fishing  in  the
high seas from 1st November to 31st March and 1st May to 30th September.
District forum, State forum dismissed the complaint - 
The State Commission noted that the only point for  consideration  was
whether there was any deficiency on the part of insurance company and if  so
to what extent.  While answering this question on the basis of the  evidence
adduced, the State  Commission  concluded  that  the  vessel  was  used  for
fishing in the high seas and eventually sank in the  Orissa  coastal  waters
and therefore there was no material to hold  that  the  repudiation  of  the
claim by the insurance company  was  illegal.   Accordingly,  the  complaint
filed by the appellant before the State  Commission  being  C.D.  No.94/1995
was dismissed.=
Before us, learned counsel for the appellant argued that  in  view  of
the Section 64 UM(3) of the Insurance Act, 1938 the insurance company  could
not have called for a second survey report. We are  afraid  this  contention
is not open to the appellant at this stage. This contention was  not  raised
before the State Commission or before the National Commission.  Before  both
the fora the only question raised was whether the  fishing  vessel  capsized
in the Orissa sea coast or in the Andhra sea coast and it  was  found  as  a
matter of fact that the  vessel  sank  in  the  Orissa  sea  coast  and  was
utilized for fishing in the high seas  contrary  to  the  insurance  policy.
Therefore the insurance company was entitled to repudiate the claim made  by
Subba Rao.

9.    We see no reason to disturb  the finding of fact  arrived  at  by  the
State Commission as well as by the National Commission nor  do  we  see  any
reason to entertain a fresh argument raised in  this  court  for  the  first
time without its having been agitated before any of the earlier  fora.
2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41425            
GYAN SUDHA MISRA, MADAN B. LOKUR
  IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.5822 OF 2006



Kokkilagadda Subba Rao                                  ….Appellant

                                   Versus



Divisional  Manager, United India Assurance
Co. Ltd. & Ors.                                              ..Respondents


                               J U D G M E N T



Madan B. Lokur, J.



1.    The appellant (Subba Rao) was the owner of a fishing  boat  in  Andhra
Pradesh registered with the  respondent  insurance  company.   There  is  no
dispute that  the  fishing  boat  capsized  on  27th  July  1992  while  the
insurance policy covering the boat was still valid.

2.    Upon the boat having  capsized,  Subba  Rao  made  a  claim  with  the
insurance company on 3rd  August  1992  for  a  sum  of  Rs.  6  lakhs.  The
insurance  company  appointed  M/s  Reliance  Surveillance  as  a  surveyor.
Reliance Surveillance submitted its report on 3rd May  1993  to  the  effect
that the case may be treated as a total loss.

3.     Apparently  dissatisfied  with  the  report,  the  insurance  company
appointed another surveyor M/s Coastal  Consultants  Private  Limited.   The
second surveyor submitted its report on  15th  July  1993  but  expressed  a
doubt whether the vessel sank in the Andhra Pradesh coastal  waters  or  the
Orissa coastal waters.    Subsequently,  Coastal  Consultants  submitted  an
addendum to its report on  14th  February  1994  in  consultation  with  M/s
Mohanty Associates. It was then concluded that the fishing boat sank in  the
Orissa coastal waters.  Since  the  vessel  had  transgressed  the  required
territorial limits, there was a violation of the policy conditions.

4.    Based on the report submitted by Coastal Consultants and the  addendum
thereto, the insurance company repudiated the claim  of  Subba  Rao  on  the
ground that contrary to the insurance policy, the boat was used for  fishing
in the high seas and the insurance policy did  not  permit  fishing  in  the
high seas from 1st November to 31st March and 1st May to 30th September.

5.    Feeling aggrieved,  Subba Rao  approached  the  Andhra  Pradesh  State
Consumer  Dispute  Redressal  Commission  seeking  compensation   from   the
insurance company of Rs. 6 lakhs with 24%  interest.    By  an  order  dated
28th March 2002 the State Commission rejected Subba  Rao’s  claim  and  this
led to his filing an appeal before the National Consumer Disputes  Redressal
Commission being First Appeal No.397  of  2002.   By  an  order  dated  10th
January 2005 (under challenge) the National Commission rejected  the  appeal
filed by Subba Rao.

6.    The State Commission noted that the only point for  consideration  was
whether there was any deficiency on the part of insurance company and if  so
to what extent.  While answering this question on the basis of the  evidence
adduced, the State  Commission  concluded  that  the  vessel  was  used  for
fishing in the high seas and eventually sank in the  Orissa  coastal  waters
and therefore there was no material to hold  that  the  repudiation  of  the
claim by the insurance company  was  illegal.   Accordingly,  the  complaint
filed by the appellant before the State  Commission  being  C.D.  No.94/1995
was dismissed.

7.    Feeling aggrieved, the appellant filed First Appeal No.  397  of  2002
before the National Consumer Disputes Redressal  Commission.   The  National
Commission held that the fishing vessel  was  used  in  the  high  seas  for
fishing and that it sank in the Orissa sea coast.   Accordingly,  the  claim
made by the appellant was not covered by the policy issued by the  insurance
company.  The view expressed by the State Commission was upheld.

8.    Before us, learned counsel for the appellant argued that  in  view  of
the Section 64 UM(3) of the Insurance Act, 1938 the insurance company  could
not have called for a second survey report. We are  afraid  this  contention
is not open to the appellant at this stage. This contention was  not  raised
before the State Commission or before the National Commission.  Before  both
the fora the only question raised was whether the  fishing  vessel  capsized
in the Orissa sea coast or in the Andhra sea coast and it  was  found  as  a
matter of fact that the  vessel  sank  in  the  Orissa  sea  coast  and  was
utilized for fishing in the high seas  contrary  to  the  insurance  policy.
Therefore the insurance company was entitled to repudiate the claim made  by
Subba Rao.

9.    We see no reason to disturb  the finding of fact  arrived  at  by  the
State Commission as well as by the National Commission nor  do  we  see  any
reason to entertain a fresh argument raised in  this  court  for  the  first
time without its having been agitated before any of the earlier  fora.   The
contention urged by learned counsel involves some factual determination  and
in the absence of any evidence having been led by either of the  parties  on
this issue, we are not inclined to entertain the submission.

10.   Under the circumstances, there is no merit in this appeal  and  it  is
accordingly dismissed.



                                              ………………………………J
                                             (Gyan Sudha Misra)



                                                             ………………………………..J
  (Madan B. Lokur)
New Delhi;
April 16, 2014


ITEM NO.1A               COURT NO.14             SECTION XVII

            S U P R E M E   C O U R T   O F   I N D I A

                         RECORD OF PROCEEDINGS

                    CIVIL APPEAL NO(s). 5822 OF 2006

KOKKILAGADDA SUBBA RAO                         Appellant (s)

                 VERSUS

DIV.MNG.UNITED INDIA ASSURA.CO.LTD.&ORS.       Respondent(s)

[HEARD BY HON'BLE GYAN SUDHA MISRA AND HON'BLE MADAN B. LOKUR, JJ.]



Date:16/04/2014 This Appeal was called on for judgment today.



For Appellant(s) Mr. Mukesh K. Giri,AOR

For Respondent(s)            Mr. Rajesh Dwivedi, Adv.
                       Mr. Zahid Ali, Adv.
                    for Mr. Debasis Misra,AOR


            Hon'ble Mr. Justice Madan B. Lokur pronounced  the  judgment  of
      the Bench comprising Hon'ble Mrs. Justice Gyan  Sudha  Misra  and  His
      Lordship.

            For the reasons given in the Non-Reportable judgment,  which  is
      placed on the file, the appeal is dismissed.




      |(Parveen Kr.Chawla)                    | |(Phoolan Wati Arora)                  |
|Court Master                           | |Assistant Registrar                   |
|                                       | |                                      |

Delegatus Non Potest Delegare: A delegate has no power to delegate, is a well-settled principle. - Powers of Land Manger of the Port trust - lessee did unauthorised constructions and also sublet the same with out permission - Eject notice was issued - Challenged on the ground the land manger has no authority to issue - single judge allowed the writ - D.B. reversed the order of single judge and allowed the writ appeal - Apex court held that We do not find any legal infirmity in the impugned notices issued by the Land Manager of the Kolkata Port Trust, as noted by the Division Bench of the Calcutta High Court, in the impugned judgment. The power is exercised only as duly authorized by the Chairman. The Land Manager is also otherwise competent to issue notices after due decision has been taken in that regard by the competent authority since he is the one who executed the lease deed. There is no merit in these Petitions.= SIDHARTHA SARAWGI … PETITIONER (S) VERSUS BOARD OF TRUSTEES FOR THE PORT OF KOLKATA AND OTHERS … RESPONDENT (S) = 2014 ( April. Part ) http://judis.nic.in/supremecourt/filename=41420

Delegatus Non Potest Delegare: A delegate has no  power  to  delegate,
is a well-settled principle. - Powers of Land Manger of the Port trust - lessee did unauthorised constructions and also sublet the same with out permission - Eject notice was issued - Challenged on the ground the land manger has no authority to issue - single judge allowed the writ - D.B. reversed the order of single judge and allowed the writ appeal - Apex court held that We do not find any legal infirmity in the impugned notices  issued  by the Land Manager of the Kolkata Port Trust, as noted by the  Division  Bench of the  Calcutta  High  Court,  in  the  impugned  judgment.  The  power  is exercised only as duly authorized by the Chairman. The Land Manager is  also otherwise competent to issue notices after due decision has  been  taken  in that regard by the competent authority since he is the one who executed  the lease deed. There is no merit in these Petitions.=

 Delegatus Non Potest Delegare: A delegate has no  power  to  delegate,
is a well-settled principle.
In  P.  Ramanatha  Aiyar’s,  The  Law
Lexicon, “delegation is the act  of  making  or  commissioning  a  delegate.
Delegation generally means parting of powers by the person  who  grants  the
delegation, but it also means conferring of an authority to do things  which
otherwise that person would have to do himself”.
The  main
contention is that the ejectment  notice  issued  by  the  Land  Manager  is
illegal and without jurisdiction as  he  is  not  competent  to  issue  such
ejectment notices. In the  case  of  Siddhartha  Sarawgi,  the  leases  were
terminated during the subsistence of the renewed period of 30 years, on  the
ground of sub-letting without consent of the  Kolkata  Port  Trust.  In  his
case also, the ejectment notices  were  issued  by  the  Land  Manager  and,
hence, it is contended that there  can  be  no  eviction  on  the  basis  of
ejectment notice issued by a person who is not competent to do so, the  same
being without jurisdiction. The said ejectment notices  were  challenged  by
both the petitioners  before  the  Calcutta  High  Court.  In  the  case  of
Universal Autocrafts Private Limited, the learned Single Judge  of  Calcutta
High Court allowed the writ petition holding that the Land Manager  was  not
competent to issue the ejectment notice.  In  the  writ  petition  filed  by
Sidhartha Sarawgi, the learned Single  Judge  of  the  Calcutta  High  Court
found a conflict between two earlier decisions and referred the matter to  a
Division Bench. The Division Bench vide  common  judgment  dated  28.01.2003
held in  favour  of  the  Kolkata  Port  Trust  in  the  case  of  both  the
petitioners, which is challenged in these Special Leave Petitions.=

  Admittedly, in the case of the petitioners, the lease  deed  has  been
executed by the Land Manager. 
The execution of the lease deed is as per  the decision by the competent authority.  
If  that  be  so,  the  lease  can  be
terminated by the same authority  who  executed  the  lease  deed,  after  a
decision has been made in that regard by  the  competent  authority.  
In  P.Saibaba Rao S/o Amruth Rao v. Dr. Dugyala Srinivasa Rao S/o  Swami  Rao  and
Dr. N. Sudhakar Rao S/o. Late N. Yethiraja Rao v. Dr. Dugyala Srinivasa  Rao
S/o Swami Rao and Ors.[6]  
High  Court  of  Andhra  Pradesh  considered  the situation of  termination  of  a  contract.  
The  contention  was  that  the
Superintendent Engineer was not  competent  to  terminate  the  contract  in
terms of the guidelines. 
His authority was only  to  execute  the  contract.
Negating the same, it was held as follows:

           “It is very  interesting  to  notice  that  entry  5(b)  of  the
      Government order as above speaks of instruments relating to  execution
      of works including Highways. The officer authorized to  execute  these
      instruments among others is SE. Chapter II of  PWD  Code  deals  with,
      "Works". It contains paragraphs 88 to 224. Nowhere  has  it  mentioned
      any authority, who is conferred with  power  to  terminate/cancel  the
      contract entered into by SE as per Paragraph 159 of PWD Code read with
      executive instructions. Petitioners have failed to bring any  evidence
      in this regard. Furthermore, in G.O.Ms. No. 2209, dated 24.9.1965,  it
      was clarified that SE is competent to execute contracts and piece work
      agreements upto  the  limit  of  tenders  accepted  by  the  competent
      authority  regardless  of  whether  they  were  accepted  by  SE   and
      irrespective of restrictions imposed on the powers of SE in the matter
      of acceptance of contract. This means that SE is  competent  to  enter
      into  contract  and  also  for  terminating/  closing/cancelling   the
      contract. The power to enter into contracts or  the  authorisation  to
      execute instruments also includes the power to  execute  contracts  or
      instruments cancelling a contract. It may also be noticed  that  under
      preliminary specification Nos. 7 and 8 of APSS,  SE  is  competent  to
      alter the standard specifications  for  a  particular  contract.  Thus
      authorization given to SE under G.O.Ms. No. 1632, dated 24.10.1958, is
      all pervasive and the same cannot  be  interpreted  in  a  restrictive
      manner.”



      We respectfully endorse the legal principle.



19.   We do not find any legal infirmity in the impugned notices  issued  by
the Land Manager of the Kolkata Port Trust, as noted by the  Division  Bench
of the  Calcutta  High  Court,  in  the  impugned  judgment.  The  power  is
exercised only as duly authorized by the Chairman. The Land Manager is  also
otherwise competent to issue notices after due decision has  been  taken  in
that regard by the competent authority since he is the one who executed  the
lease deed. There is no merit in these Petitions.

20.   The Special Leave Petitions are hence dismissed.  There  is  no  order
as to costs.              
2014 ( April. Part ) http://judis.nic.in/supremecourt/filename=41420
GYAN SUDHA MISRA, KURIAN JOSEPH
    IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                SPECIAL LEAVE PETITION (CIVIL) NO.18347/2013

SIDHARTHA SARAWGI                       …  PETITIONER (S)

                                   VERSUS

BOARD OF TRUSTEES FOR THE
PORT OF KOLKATA AND OTHERS        … RESPONDENT (S)

                                    WITH

             SPECIAL LEAVE PETITION (CIVIL) NOS.19458-19459/2013

UNIVERSAL AUTOCRAFTS PRIVATE
LIMITED AND ANOTHER                     …  PETITIONER (S)

                                   VERSUS

BOARD OF TRUSTEES FOR THE
PORT OF KOLKATA AND OTHERS        … RESPONDENT (S)

                                    WITH

                SPECIAL LEAVE PETITION (CIVIL) NO.19600/2013

SIDHARTHA SARAWGI                       …  PETITIONER (S)

                                   VERSUS

BOARD OF TRUSTEES FOR THE
PORT OF KOLKATA AND OTHERS        … RESPONDENT (S)

                                    WITH

                SPECIAL LEAVE PETITION (CIVIL) NO.19652/2013

SIDHARTHA SARAWGI                       …  PETITIONER (S)

                                   VERSUS

BOARD OF TRUSTEES FOR THE
PORT OF KOLKATA AND OTHERS        … RESPONDENT (S)


                               J U D G M E N T

KURIAN, J.:


1.    Delegatus Non Potest Delegare: A delegate has no  power  to  delegate,
is a well-settled principle.  Is  there  any  exception  and  is  there  any
distinction between delegation of legislative  and  non-legislative  powers,
are the moot issues arising for consideration in these cases.
2.    Delegation is the act  of  making  or  commissioning  a  delegate.  It
generally means parting of powers by the person who  grants  the  delegation
and conferring of an authority to do  things  which  otherwise  that  person
would have to do himself. Delegation is defined in  Black’s  Law  Dictionary
as “the act of entrusting another with authority by  empowering  another  to
act as an agent  or  representative”.  In  P.  Ramanatha  Aiyar’s,  The  Law
Lexicon, “delegation is the act  of  making  or  commissioning  a  delegate.
Delegation generally means parting of powers by the person  who  grants  the
delegation, but it also means conferring of an authority to do things  which
otherwise that person would have to do himself”. Justice Mathew  in  Gwalior
Rayon Silk Manufacturing (Wvg.) Co. Ltd. v. The  Assistant  Commissioner  of
Sales  Tax  and  Others[1],  has  succinctly  discussed   the   concept   of
delegation. Paragraph 37 reads as follows:

      “37. … Delegation is not the complete handing over or transference  of
      a power from one person or body of persons to another. Delegation  may
      be defined as the entrusting, by a person or body of persons,  of  the
      exercise of a power residing in that person or  body  of  persons,  to
      another person or body of persons, with complete power  of  revocation
      or amendment remaining in the grantor or delegator. It is important to
      grasp the implications of this, for, much  confusion  of  thought  has
      unfortunately resulted from assuming that delegation involves  or  may
      involve, the complete abdication or abrogation of  a  power.  This  is
      precluded by the definition. Delegation often involves the granting of
      discretionary authority to  another,  but  such  authority  is  purely
      derivative. The ultimate power always remains in the delegator and  is
      never renounced.”




3.    There is  a  subtle  distinction  between  delegation  of  legislative
powers                  and                  delegation                   of
   non-legislative/administrative powers. As far as delegation of  power  to
legislate is concerned, the law is well-settled: the said  power  cannot  be
sub-delegated.  The  Legislature  cannot  delegate   essential   legislative
functions which consist in the determination or choosing of the  legislative
policy and formally enacting that policy into a binding rule of  conduct[2].
Subordinate legislation which  is  generally  in  the  realm  of  Rules  and
Regulations  dealing  with  the  procedure  on  implementation  of   plenary
legislation is generally a task entrusted to a  specified  authority.  Since
the Legislature need not spend its time  for  working  out  the  details  on
implementation of the law, it has thought it fit to entrust  the  said  task
to an agency. That agency cannot entrust such task to its  subordinates;  it
would be a breach of the confidence reposed on the delegate.

4.    Regarding delegation of  non-legislative/administrative  powers  on  a
person or a body to do certain things, whether the delegate  himself  is  to
perform such functions or whether after taking decision as per the terms  of
the delegation, the said agency can  authorize  the  implementation  of  the
same on somebody else, is the question to be considered. Once the  power  is
conferred, after exercising the said power, how to  implement  the  decision
taken in the process, is a matter of procedure. The Legislature  may,  after
laying down the legislative policy, confer discretion on  an  administrative
agency as to the execution of the policy and leave it to the agency to  work
out the details within the framework of  that  policy[3].  So  long  as  the
essential functions of decision making is performed  by  the  delegate,  the
burden of performing the ancillary and clerical task need not be  shouldered
by the primary delegate. It is  not  necessary  that  the  primary  delegate
himself should perform the ministerial acts as well. In furtherance  of  the
implementation of the decision already taken by the primary delegate as  per
the  delegation,  ministerial  or  clerical  tasks  may  be   performed   by
authorized officers. The complexity of modern  day  administration  and  the
expansion of functions of the State to the economic and social spheres  have
made it  necessary  that  the  Legislature  gives  wide  powers  to  various
authorities when the situation requires it. Today’s  governmental  functions
are a lot more complex and the need for  delegation  of  powers  has  become
more compelling. It cannot be expected that the head of  the  administrative
body performs each and every task himself.

5.    The issue was considered by this Court in Jamal  Uddin  Ahmad  v.  Abu
Saleh Najmuddin and Another[4] in the context of the  procedure  for  filing
of the election petitions under Section 81 of the Representation of  Peoples
Act, 1951. It was held that the ministerial or administrative  functions  of
the authority on whom the  powers  are  conferred  by  the  statute  can  be
exercised by the authorized officers. It was held that:

      “13. The functions discharged by a High Court can be  divided  broadly
      into judicial and administrative functions. The judicial functions are
      to be discharged essentially by the Judges as per  the  Rules  of  the
      Court and cannot be delegated. However, administrative functions  need
      not necessarily be discharged by the  Judges  by  themselves,  whether
      individually or collectively or in a group of two or more, and may  be
      delegated or entrusted by authorization to subordinates  unless  there
      be some rule of law  restraining  such  delegation  or  authorisation.
      Every High Court consists of some administrative and ministerial staff
      which is as much a part of the High Court as  an  institution  and  is
      meant  to  be  entrusted  with  the  responsibility   of   discharging
      administrative and ministerial functions. There can be “delegation” as
      also there can be “authorization” in favour of the  Registry  and  the
      officials therein by empowering or entrusting them with  authority  or
      by permitting a few things to be done by them for and on behalf of the
      Court so  as  to  aid  the  Judges  in  discharge  of  their  judicial
      functioning. Authorization may take the form of  formal  conferral  or
      sanction or may be by way of approval or countenance. Such  delegation
      or authorization is not a matter of mere convenience but  a  necessity
      at times. The  Judges  are  already  overburdened  with  the  task  of
      performing judicial functions and the constraints on  their  time  and
      energy are so demanding that it is in public interest to allow them to
      devote time and energy  as  much  as  possible  in  discharging  their
      judicial functions, relieving them of the  need  for  diverting  their
      limited resources  of  time  and  energy  to  such  administrative  or
      ministerial functions, which, on any principle of propriety, logic, or
      necessity are not required necessarily to be performed by the  Judges.
      Receiving a cause or a document and making it presentable to  a  Judge
      for the purpose of  hearing  or  trial  and  many  a  functions  post-
      decision,  which  functions  are  administrative  and  ministerial  in
      nature, can be  and  are  generally  entrusted  or  made  over  to  be
      discharged by the staff of the High Court, often by making a provision
      in the Rules or under the orders of the Chief Justice  or  by  issuing
      practice directions, and at times, in the absence of rules,  by  sheer
      practice. The practice gathers the strength of law and the  older  the
      practice the greater is the strength…”



6.    Practical necessities or exigencies  of  administration  require  that
the decision making authority who has been conferred with  statutory  power,
be able to delegate tasks when the situation so requires.  Thus,  the  maxim
delegatus  non  potest  delegare,  gives   way   in   the   performance   of
administrative  or  ministerial  tasks   by   subordinate   authorities   in
furtherance of the exercise of the delegated power by an authority.

7. It would also be useful in this context to refer to the decision of  this
Court in Barium Chemicals Limited and Another v. The Company Law  Board  and
Another[5] wherein it is held at paragraph 36 as follows:

      “…the maxim delegatus non potest delegare must not be pushed too  far.
      The maxim does not embody a rule  of  law.  It  indicates  a  rule  of
      construction of a statute or other instrument conferring an authority.
      Prima facie, a discretion conferred by a statute on any  authority  is
      intended to be exercised by that authority and by no  other.  But  the
      intention  may  be  negatived  by  any  contrary  indications  in  the
      language, scope or object of the statute. The construction that  would
      best achieve the purpose and object of the statute should be adopted.”





8.    The Constitution confers power and imposes duty on the Legislature  to
make laws and the said functions cannot be delegated by the  Legislature  to
the executive. The Legislature is constitutionally required to keep  in  its
own  hands  the  essential  legislative  functions  which  consist  of   the
determination of legislative policy and its formulation as  a  binding  rule
of conduct. After the performance of the essential legislative  function  by
the Legislature and laying the guiding policy, the Legislature may  delegate
to the executive or administrative authority, any ancillary  or  subordinate
powers that are necessary for giving effect to the policy  and  purposes  of
the enactment. In construing the scope and extent of  delegated  power,  the
difference  between  the  essential  and  non-essential  functions  of   the
delegate should also be borne in mind. While there cannot be  sub-delegation
of any essential functions, in order to achieve the intended object  of  the
delegation,  the  non-essential  functions  can  be  sub-delegated   to   be
performed under the authority and supervision of the delegate.
9.    Sometimes, in  the  plenary  legislation  itself,  the  lawmakers  may
provide for such sub-delegation. That is what we see under  Section  21  and
34 of the Major Port Trusts Act, 1963, which we shall be discussing in  more
detail at a later part of this judgment.

10.   Having analysed the legal position as above, we shall  now  deal  with
the factual position in these cases.   The  challenge  is  on  the  judgment
dated 28.01.2013 of the Division Bench  of  the  Calcutta  High  Court.  The
issue pertains to the determination of leases granted by  the  Kolkata  Port
Trust to the petitioners.  In  the  case  of  Universal  Autocrafts  Private
Limited, they were granted lease  of  a  plot  of  land  for  30  years,  on
19.08.1990. The lease deed was executed by the Land Manager of  the  Kolkata
Port Trust. On 05.02.2008, a letter was issued to  the  said  petitioner  to
demolish an alleged unauthorized  construction  and  eject  the  sub-tenants
from the premises. The petitioner submitted its  reply  on  02.05.2008.  Not
satisfied with the reply, on 30.01.2009, a notice terminating the lease  was
issued. The ejectment notice was  signed  by  the  Land  Manager.  The  main
contention is that the ejectment  notice  issued  by  the  Land  Manager  is
illegal and without jurisdiction as  he  is  not  competent  to  issue  such
ejectment notices. In the  case  of  Siddhartha  Sarawgi,  the  leases  were
terminated during the subsistence of the renewed period of 30 years, on  the
ground of sub-letting without consent of the  Kolkata  Port  Trust.  In  his
case also, the ejectment notices  were  issued  by  the  Land  Manager  and,
hence, it is contended that there  can  be  no  eviction  on  the  basis  of
ejectment notice issued by a person who is not competent to do so, the  same
being without jurisdiction. The said ejectment notices  were  challenged  by
both the petitioners  before  the  Calcutta  High  Court.  In  the  case  of
Universal Autocrafts Private Limited, the learned Single Judge  of  Calcutta
High Court allowed the writ petition holding that the Land Manager  was  not
competent to issue the ejectment notice.  In  the  writ  petition  filed  by
Sidhartha Sarawgi, the learned Single  Judge  of  the  Calcutta  High  Court
found a conflict between two earlier decisions and referred the matter to  a
Division Bench. The Division Bench vide  common  judgment  dated  28.01.2003
held in  favour  of  the  Kolkata  Port  Trust  in  the  case  of  both  the
petitioners, which is challenged in these Special Leave Petitions.

11.   The Major Port Trusts Act, 1963  (hereinafter  referred  to  as,  ‘the
Act’) is an Act intended “to make provision for  the  constitution  of  port
authorities  for  certain  major  ports   in   India   and   to   vest   the
administration, control and management of such  ports  in  such  authorities
and for matters connected therewith”. Section 3 of the Act provides for  the
constitution of a  Board  of  Trustees  (hereinafter  referred  to  as  ‘the
Board’). Section 5 provides that:

      “5. Board to be body corporate.-Every Board constituted under this Act
      shall be a body corporate having perpetual  succession  and  a  common
      seal with power, subject to the provisions of this  Act,  to  acquire,
      hold or dispose of property and  may  by  the  name  by  which  it  is
      constituted, sue or be sued.”



12.   Section 21 of the Act provides for delegation of powers of  the  Board
with  the  approval  of  the  Central  Government  on   the   Chairman   and
specification of exercise of such powers conferred on the  Chairman  by  the
Deputy Chairman or any other officer of the Board. The  provision  reads  as
follows:
      “21. Delegation of powers.-A Board  may,  with  the  approval  of  the
      Central Government, specify-
           a) the powers and duties conferred or imposed upon the Board  by
              or under this Act, which may also be exercised  or  performed
              by the Chairman; and
           b) the powers and duties conferred or imposed on the Chairman by
              or under this Act, which may also be exercised  or  performed
              by the Deputy Chairman or any officer of the  Board  and  the
              conditions and restrictions, if any, subject  to  which  such
              powers and duties may be exercised and performed:
        Provided that any powers and duties conferred or imposed  upon  the
      Deputy Chairman or any officer of the Board under clause (b) shall  be
      exercised and performed by him subject to the supervision and  control
      of the Chairman.”



13.   Section 34 of the Act provides for the mode of executing contracts  on
behalf of Board. It is provided therein that every contract is  to  be  made
by the Chairman or any other officer of the Board not below the rank of  the
Head of a Department as authorized by the Chairman, on behalf of the  Board.
The provision reads as follows:
      “34.  Mode  of  executing  contracts  on  behalf  of  Board.-(1) Every
      contract shall, on behalf of a Board, be made by the  Chairman  or  by
      any such officer of the Board not below the rank  of  the  Head  of  a
      Department as the Chairman may, by general or special order, authorise
      in this behalf and shall be sealed with the common seal of the Board:
           Provided that no contract whereof the value  or  amount  exceeds
      such value or amount as the Central Government may from time  to  time
      fix in this behalf  shall  be  made  unless  it  has  been  previously
      approved by the Board:
           Provided further that no contract for the acquisition or sale of
      immovable property or for the lease of any such property  for  a  term
      exceeding thirty years, and no other contract  whereof  the  value  or
      amount exceeds such value or amount as the Central Government may from
      time to time fix in this behalf, shall be  made  unless  it  has  been
      previously approved by the Central Government.
      (2) Subject to the provisions of sub- section (1), the form and manner
      in which any contract shall be made under this Act shall  be  such  as
      may be prescribed by regulations made in this behalf.
      (3) No contract which is not made in accordance with the provisions of
      this Act and the regulations made thereunder shall be binding  on  the
      Board.”



14.   In exercise of the power under Section 21  on  delegation  of  powers,
the Board  of  the  Kolkata  Port  Trust  passed  Resolution  No.  82  dated
26.05.1988 delegating the power to terminate any lease on the Chairman.  The
Chairman was also authorized by  the  said  Resolution  to  issue  ejectment
notices. The text of the Resolution reads as follows:

      “..  Resolution  No.  82-  Resolved  to  sanction  the  proposal   for
      delegation of powers to the Chairman by invocation of section 21(a) of
      the Major  Port  Trust  Act,  1963,  the  power  to  terminate  leases
      sanctioned by the Trustees and to authorizing him to  issue  ejectment
      notices, subject to the sanction of the Government.”




15.   It is the contention of the petitioners that the  power  to  terminate
the lease having been specifically conferred on the Chairman, the steps  now
taken by the Land Manager by issuing the impugned notices for eviction,  are
clearly without jurisdiction and, hence, illegal and inoperative. On  behalf
of the Board of Kolkata Port Trust, it is contended  that  the  decision  to
terminate the lease  has  actually  been  taken  by  the  Chairman  and  the
issuance of notice of termination in furtherance of the  decision  taken  by
the Chairman alone, has been delegated to the Land  Manager.  Our  attention
is also invited to Office Order No. 6480/3/0 dated 22.01.1990,  which  reads
as under: -


                            “CALCUTTA PORT TRUST
      No. 6480/3/0                                 January 22, 1990
                                OFFICE ORDER


      Henceforth ejectment (sic) notices in  respect  of  leases  determined
      with my approval may be signed by any one of the undernoted officers:


      Calcutta
              1) Deputy Chairman (Calcutta)
              2) Land Manager






      Haldia
              1) Deputy Chairman (Haldia)
              2) General Manager (Mas)
              3) Manager (I&C.F)”





16.   The power that is delegated to the Chairman as per Resolution  No.  82
is the power to terminate a lease. The decision to terminate has been  taken
by  the  Chairman  only  and  there  is  no  dispute  in  that  regard.   In
implementation of the decision thus taken by the Chairman to  terminate  the
leases, the Chairman has authorized the Land Manager to issue the  ejectment
notices. The issuance of such notices is a  mere  ministerial  act  for  the
implementation of a decision already taken by the Chairman as  delegated  by
the Board. The Chairman having duly authorized  the  Land  Manager  in  that
regard, it cannot be said that the  ejectment  notice  issued  by  the  Land
Manager is without jurisdiction. It is not a case of sub-delegation.  It  is
merely a ministerial exercise of issuance of a notice in  implementation  of
the decision, as per the specific authorization in that regard.

17.   The situation can be viewed from another angle as well. Section 21  of
The General Clauses Act, 1897 provides that power  to  issue  would  include
power to add, amend, vary or rescind. The provision reads as follows:

      “21.  Power to issue, to include power  to  add  to,  amend,  vary  or
      rescind  notifications,  orders,  rules  or  bye-laws.-Where,  by  any
      Central Act or Regulations a power  to  issue  notifications,  orders,
      rules or bye-laws is conferred, then  that  power  includes  a  power,
      exercisable in the like manner and subject to the  like  sanction  and
      conditions  (if  any),  to  add  to,  amend,  vary  or   rescind   any
      notifications, orders, rules or bye-laws so issued.”




18.   Admittedly, in the case of the petitioners, the lease  deed  has  been
executed by the Land Manager. The execution of the lease deed is as per  the
decision by the competent authority.  If  that  be  so,  the  lease  can  be
terminated by the same authority  who  executed  the  lease  deed,  after  a
decision has been made in that regard by  the  competent  authority.  In  P.
Saibaba Rao S/o Amruth Rao v. Dr. Dugyala Srinivasa Rao S/o  Swami  Rao  and
Dr. N. Sudhakar Rao S/o. Late N. Yethiraja Rao v. Dr. Dugyala Srinivasa  Rao
S/o Swami Rao and Ors.[6]  High  Court  of  Andhra  Pradesh  considered  the
situation of  termination  of  a  contract.  The  contention  was  that  the
Superintendent Engineer was not  competent  to  terminate  the  contract  in
terms of the guidelines. His authority was only  to  execute  the  contract.
Negating the same, it was held as follows:

           “It is very  interesting  to  notice  that  entry  5(b)  of  the
      Government order as above speaks of instruments relating to  execution
      of works including Highways. The officer authorized to  execute  these
      instruments among others is SE. Chapter II of  PWD  Code  deals  with,
      "Works". It contains paragraphs 88 to 224. Nowhere  has  it  mentioned
      any authority, who is conferred with  power  to  terminate/cancel  the
      contract entered into by SE as per Paragraph 159 of PWD Code read with
      executive instructions. Petitioners have failed to bring any  evidence
      in this regard. Furthermore, in G.O.Ms. No. 2209, dated 24.9.1965,  it
      was clarified that SE is competent to execute contracts and piece work
      agreements upto  the  limit  of  tenders  accepted  by  the  competent
      authority  regardless  of  whether  they  were  accepted  by  SE   and
      irrespective of restrictions imposed on the powers of SE in the matter
      of acceptance of contract. This means that SE is  competent  to  enter
      into  contract  and  also  for  terminating/  closing/cancelling   the
      contract. The power to enter into contracts or  the  authorisation  to
      execute instruments also includes the power to  execute  contracts  or
      instruments cancelling a contract. It may also be noticed  that  under
      preliminary specification Nos. 7 and 8 of APSS,  SE  is  competent  to
      alter the standard specifications  for  a  particular  contract.  Thus
      authorization given to SE under G.O.Ms. No. 1632, dated 24.10.1958, is
      all pervasive and the same cannot  be  interpreted  in  a  restrictive
      manner.”



      We respectfully endorse the legal principle.



19.   We do not find any legal infirmity in the impugned notices  issued  by
the Land Manager of the Kolkata Port Trust, as noted by the  Division  Bench
of the  Calcutta  High  Court,  in  the  impugned  judgment.  The  power  is
exercised only as duly authorized by the Chairman. The Land Manager is  also
otherwise competent to issue notices after due decision has  been  taken  in
that regard by the competent authority since he is the one who executed  the
lease deed. There is no merit in these Petitions.

20.   The Special Leave Petitions are hence dismissed.  There  is  no  order
as to costs.


                                                             …………….…..…………J.
                                              (GYAN SUDHA MISRA)


                                                             .……..……………………J.
                                              (KURIAN JOSEPH)
New Delhi;
April 16, 2014.
-----------------------
[1]    (1974) 4 SCC 98
[2]    Harishanker Bagla v. State of M.P. –  (1955) 1 SCR 380 (Page 388)
        Agricultural Market Committee v. Shalimar Chemical Works  Limited  –

        (1997) 5 SCC 516 (Paragraph 24)
[3]    Khambalia Municipality v. State of Gujarat – AIR 1967 SC 1048
(P.1051)
[4]    (2003) 4 SCC 257
[5]    AIR 1967 SC 295
[6]    Election Petition Nos. 1 and 3 of 2004, Judgment dated 30.08.2007.


-----------------------

REPORTABLE


-----------------------
16

Sec.149 I.P.C. - common object - consideration of each role does not arise -Apex court held that The eye witnesses who are natural witnesses, being brothers, have deposed in an unequivocal manner about the assault by all the accused persons. The common object is clearly evident. In such a situation, attribution of specific individual overt act has no role to play. All the requisite tests to attract Section 149 IPC have been established by the prosecution.=Om Prakash … Appellant Versus State of Haryana …Respondent = 2014 ( April. Part ) http://judis.nic.in/supremecourt/filename=41419

       Sec.149 I.P.C. - common object - consideration of each role does not arise -Apex court held that The eye witnesses who  are  natural  witnesses,  being  brothers,  have deposed in an unequivocal manner  about  the  assault  by  all  the accused persons.   The common object is clearly evident.  In such  a situation, attribution of specific individual overt act has no role to play.  All the requisite tests to attract Section 149  IPC  have been established by the prosecution.=

Common object of an unlawful assembly can also be gathered from the
        nature of the assembly, the weapons used by  its  members  and  the
        behavior of the assembly at or before the scene of occurrence.   
It
        cannot be stated as a general proposition of  law  that  unless  an
        overt act is proven against the person  who  is  alleged  to  be  a
        member of the unlawful assembly, it cannot be held  that  he  is  a
        member of the assembly.  
What is really required to be seen is that
        the member of the unlawful assembly should have understood that the
        assembly was unlawful and was likely to  commit  any  of  the  acts
        which fall within the purview of Section 141 IPC.  
The core of  the
        offence is the word “object” which means the purpose or design  and
        in order to make it common, it should be shared by  all.   Needless
        to say, the burden is  on  the  prosecution.   
It  is  required  to
        establish whether the accused persons were present and whether they
        shared the common object. 
 It is also an  accepted  principle  that
        number and nature of injuries is a relevant fact to deduce that the
        common object has developed at the time of incident.  (See Lalji v.
        State of U.P.[8], Bhargavan  and  others  v.  State  of  Kerala[9],
        Debashis  Daw  and  others  v.  State  of   West   Bengal[10]   and
        Ramachandran and others v. State of Kerala[11]).

    17. In the case at hand, as the evidence would clearly  show,  all  the
        accused persons had come together armed with lathis.  
Het Ram,  who
        died during the pendency of the appeal, was armed with a gun.   
The
        eye witnesses who  are  natural  witnesses,  being  brothers,  have
        deposed in an unequivocal manner  about  the  assault  by  all  the
        accused persons.  
The common object is clearly evident.  In such  a
        situation, attribution of specific individual overt act has no role
        to play.  All the requisite tests to attract Section 149  IPC  have
        been established by the prosecution.

    18. In view of our aforesaid analysis, as all the contentions raised by
        the learned counsel for the appellants  are  sans  substratum,  the
        appeals, being devoid of merit, stand dismissed.
       2014 ( April. Part ) http://judis.nic.in/supremecourt/filename=41419     
K.S. RADHAKRISHNAN, DIPAK MISRA

 IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1102 OF 2006


      Om Prakash                                … Appellant


                                   Versus


      State of Haryana                                  …Respondent


                                    WITH


                      CRIMINAL APPEAL NO. 1103 OF 2006


      Radhey Shyam and others                   … Appellants


                                   Versus


      State of Haryana                                  …Respondent


                                    WITH


                      CRIMINAL APPEAL NO. 1104 OF 2006


      Mange Ram and others                              … Appellants


                                   Versus


      State of Haryana                                  …Respondent




                               J U D G M E N T




      Dipak Misra, J.





           The present appeals,  by  special  leave,  have  been  preferred
      against the common judgment and order dated 18.03.2005 passed  by  the
      High Court of Punjab and Haryana at Chandigarh in Criminal Appeal Nos.
      78-DB & 146-DB of 1997 with Criminal Revision No. 219 of 1997  whereby
      the court has declined to interfere with the  judgment  of  conviction
      and order of sentence passed by  the  learned  Addl.  Sessions  Judge,
      Hisar in Sessions Case No. 40 of 1993 for the offences under  Sections
      148 and 302 read with Section 149 of IPC and affirmed the sentences of
      imprisonment for life and payment of fine of Rs. 1000/- by  each  with
      the default clause under Section 302 read with Section 149 of IPC  and
      rigorous imprisonment of two years under  Section  148  IPC  with  the
      stipulation that both the sentences shall be concurrent.

     2. Shorn of unnecessary details, the prosecution version  is  that  on
        28.06.1993 the informant, Satbir Singh, PW 3, along  with  his  two
        brothers, namely, Mahinder Singh, PW 7 and Prabhu Dayal  (deceased)
        had gone to Hisar to enroll themselves in the Border Security Force
        for which interviews were being held at Hisar.  About 3.00 p.m. all
        of them returned from Hisar in a Machanised Cart (Pater Rehra)  and
        alighted at the bus stand of  their  village,  Sadalpur.   At  that
        time, the accused-appellants, namely, Man Singh, Radhey Sham,  Bhal
        Singh, Ram Kanwar, Raja Ram, Mange Ram, Kirpa Ram  and  Prem  Singh
        emerged from the rear of Kotha (chamber), located nearby,  Het  Ram
        armed with a gun and all others armed with  lathis.   All  of  them
        raised a lalkara with the intention to assault  the  informant  and
        his two brothers, Mahinder Singh and Prabhu Dayal, as the later had
        earlier caused injuries to them.   Forming  an  unlawful  assembly,
        with the common object they inflicted injuries on Prabhu Dayal with
        their lathis and butt of the gun.  Prabhu Dayal fell  down  on  the
        road.  Being scared, the informant and his brother  Mahinder  Singh
        ran  away  and  stood  near  the  wall  of  the  water   reservoir.
        Thereafter, Om Prakash came on a tractor bearing  registration  No.
        HR-20A-8022, ran over Prabhu Dayal and fled away from the scene  of
        occurrence along with their weapons in the tractor.  The  informant
        and his brother Mahinder Singh went to see the condition of  Prabhu
        Dayal who had sustained injuries on his arms, legs, waist and  head
        and bleeding profusely.  He was taken to the  Government  Hospital,
        Adampur in a Machanised Cart  and  first  aid  was  given  to  him.
        During his examination by the medical officer he succumbed  to  his
        injuries at 5.50 p.m. and the hospital staff  informed  the  nearby
        police station about his death. The Investigating Officer,  Ronaski
        Ram, PW-8, recorded the statement of Satbir  Singh,  PW-3,  and  on
        that base registered an  FIR  No.  100/93  at  7.45  p.m.  and  the
        criminal law was set in motion.

     3. In course of investigation, the investigating agency  prepared  the
        inquest report, got the post mortem  conducted  and  collected  the
        blood stained earth vide seizure memo Ext. PM.   On  2.07.1993  the
        Investigating Officer arrested Man Singh, Radhey Shyam, Ram  Kumar,
        Raja Ram and Om Prakash. All  of  them  led  to  discovery  of  the
        weapons used in the alleged commission of crime.  After  completing
        the   investigation   charge-sheet   was   placed    against    the
        aforementioned accused persons.

     4. The accused persons pleaded innocence and false implication due  to
        animosity.  Be it noted, in course of trial after some evidence was
        recorded, the learned trial Judge, on the basis of  an  application
        preferred by the public prosecutor under Section 319  of  the  Code
        summoned the other accused persons, namely, Bhal Singh, Mange  Ram,
        Kirpa Ram, Het Ram and Prem Singh to face trial.

     5. In order  to  prove  its  case,  the  prosecution,  examined  eight
        witnesses, namely, Dr. Pratap Singh, PW-1, Om Prakash, Patwari, PW-
        2, Satbir Singh, PW-3, Dr. P.L. Jindal, PW-4, Basant  Kumar,  PW-5,
        Ram Kumar, Asst. Sub Inspector,  PW-6,  Mahinder  Singh,  PW-7  and
        Ronaski Ram, Investigating officer, PW-8.  No evidence  in  defence
        was adduced by  the  accused.  However,  a  copy  of  the  judgment
        relating to land dispute between the parties and copy of FIR No.  6
        dated 9.1.1993 and copy of Election Petition,  Ext.  DC  titled  as
        Sohan Lal v. Nardwari and  others  were  tendered  in  evidence  to
        substantiate the plea  of  enmity.   The  learned  trial  Judge  on
        appreciation of evidence brought on record came to  hold  that  the
        prosecution had brought home  the  charges  beyond  any  reasonable
        doubt and, accordingly,  convicted  all  the  accused  persons  and
        sentenced each of them as has been stated hereinbefore.

     6. Being dissatisfied with the judgment of  conviction  and  order  of
        sentence the accused persons preferred appeal before the High Court
        raising many a stand and stance.  The High Court repelled  all  the
        contentions by holding that there was no delay in  lodging  of  the
        FIR;  that  there  was  enmity  between  the  parties  inasmuch  as
        litigations were pending; that the two eye witnesses Satbir  Singh,
        PW-3, and Mahinder Singh, PW-7, are  natural  witnesses  and  their
        testimony  could  not  be  discarded  solely   because   of   their
        relationship  with   the   deceased;   that   their   evidence   is
        unimpeachable and the contradictions being minor do not create  any
        dent  in  their  version;  that  the  medical  evidence   assuredly
        corroborates the ocular testimony of the eye  witnesses;  that  the
        defective and tilted investigation would not corrode  the  evidence
        brought on record which prove the case of the  prosecution  to  the
        hilt and, eventually, gave the stamp of approval to the verdict  of
        the trial court.

     7.  Mr. Ram Niwas Kush, learned counsel appearing for the  appellants,
        has urged that there is delay in lodging of the FIR inasmuch though
        the occurrence took place about 3.00 p.m.,  yet  the  FIR  was  not
        lodged till 7.45 p.m. and in the backdrop of enmity there was ample
        time to think, add and embellish the versions, apart from roping in
        number of persons, which creates a grave  suspicion  in  the  whole
        case put forth by the prosecution.  Learned counsel  would  contend
        that the evidence brought on record do not remotely  prove  that  a
        tractor has made to run over certain  parts  of  the  body  of  the
        deceased as alleged by the prosecution  and,  therefore,  both  the
        courts have fallen into error by  recording  the  conviction.   The
        last plank of submission is that all the accused persons could  not
        have been convicted under Section 302 IPC in  aid  of  Section  149
        IPC.

     8. Mr. Ramesh Kumar, learned counsel  for  the  State,  supported  the
        conviction and the sentences recorded by the trial court which  has
        been concurred with by the High Court, on the ground that  the  FIR
        was lodged in quite promptitude and the appreciation of evidence by
        both the courts is absolutely flawless.

     9. First, we shall deal with the contention  pertaining  to  delay  in
        lodging of the FIR.  It is not in dispute that the occurrence  took
        place about 3.00 p.m. and thereafter, the deceased was carried by a
        merchandised cart  to  the  primary  health  centre  where  he  was
        administered some treatment but he succumbed to his  injuries.   On
        being informed by the hospital staff, the  police  arrived  at  the
        hospital and recorded the statement of the informant, Satbir Singh,
        PW-3, and thereafter an FIR was registered at 7.45 p.m.   From  the
        sequence of  the  events  which  include  consumption  of  time  in
        carrying the injured to  the  hospital,  treatment  availed  of  by
        Prabhu Dayal, information given by the concerned authority  of  the
        primary health centre and arrival of police and also taking note of
        the distance, i.e., 24 kilometers from the place of occurrence,  we
        do not think that there is any delay in lodging of the  FIR.   That
        apart, it is settled in law that mere delay in  lodging  the  first
        information report cannot by itself be regarded  as  fatal  to  the
        prosecution case.  True it is, the court has a duty to take  notice
        of the delay and examine the same in the backdrop  of  the  factual
        score, whether there has been any acceptable explanation offered by
        the prosecution and whether the  same  deserves  acceptation  being
        satisfactory,  but  when  delay  is  satisfactorily  explained,  no
        adverse inference is to be drawn.  It is to be seen  whether  there
        has been possibility of embellishment in the prosecution version on
        account of such  delay.   These  principles  have  been  stated  in
        Meharaj Singh v. State of U.P.[1], State of H.P. v. Gian  Chand[2],
        Ramdas and others v. State of Maharashtra[3], Kilakkatha  Parambath
        Sasi and others v. State of Kerala[4] and Kanhaiya Lal  and  others
        v. State of Rajasthan[5].

    10. In the present case, as we find,  there  is,  in  fact,  no  delay.
        Learned counsel for the appellants would emphasise on  the  concept
        that effort has to be made to lodge the report at the earliest, but
        the “earliest”, according to us, cannot be put in  the  compartment
        of absolute precision.  Apart from what we have stated, the  impact
        of the crime on the relations who are eye witnesses, the shock  and
        panic which would rule supreme  at  the  relevant  time  and  other
        ancillary aspects are also to be kept in mind.  That apart,  as  we
        notice, the FIR is not the result of any  embellishment  which  has
        the roots in any kind of afterthought.  Considering the totality of
        facts and circumstances the submission of learned counsel  for  the
        appellants pertaining to delay in lodging of the FIR being  totally
        unacceptable is hereby rejected.

    11. The next limb of submission is that the evidence brought on  record
        do not establish beyond doubt that the accused Om Prakash had run a
        tractor on the deceased.  In this context, Satbir Singh, PW-3,  and
        Mahinder Singh, PW-7, the elder  brothers  of  the  deceased,  have
        categorically deposed that the accused persons had given blows with
        lathis and Om Prakash had run the tractor over the  deceased.   Dr.
        Jindal, PW-4, who had examined the deceased  prior  to  death,  had
        found 11 injuries on his body.  He had not expressed any opinion on
        injury Nos. 1, 2, 4, 5 and 8 and observed that final opinion  would
        be expressed after x-ray had been done.   In  examination-in-chief,
        referring to his opinion, Ex. PK/1, he has stated that injuries  on
        both legs and arms on the person of the deceased could be caused by
        tractor wheels and the other injuries  could  be  caused  by  lathi
        blows.  In the cross-examination barring that he had not found  the
        tyre mark on the pyjama of the injured nothing substantial has been
        elicited.

    12. Dr. Partap Singh, PW-1, who conducted the autopsy,  had  found  the
        following injuries: -

           “1.  A stitched wound 1 ¼ long on the  right  side  of  parental
                 region one inch above the hair line.  On exploration, there
                 was extra vacation of blood in layers scalp.  The wound was
                 superficial.

           2.   A scabbed abrasion 1” x 1” on the right cheek.  It was  red
                 in colour.

           3.   Multiple contusions of various sizes  and  shape,  covering
                 the back of chest and abdomen.  Reddish in colour.

           4.   A stitched wound ½” long on the back of upper arm on  right
                 thigh.  Wound was bone deep.

           5.   Multiple contusions covering the upper half of right  fore-
                 arm, right elbow and lower half of right upper, reddish  in
                 colour.   On  exploration,  the   underlying   bones   were
                 fractured (right humorous and upper part  of  right  radius
                 and ulna.)

           6.   A lacerated wound ½ inch long and ¼” wide,  and  bone  deep
                 present on the upper part of left fore-arm.

           7.   A stitched wound 1” long on the  back  of  middle  of  left
                 upper arm.  Clotted blood was present.

           8.   Multiple contusions covering the lower part of  left  upper
                 arm, elbow and upper part  of  left  fore-arm,  reddish  in
                 colour.  The underlying bones (upper part of  left  radius,
                 ulna and lower part of left humorous) were fractured.

           9.   A lacerated and stitched wound 1” long present on the  left
                 of leg on its middle.   Clotted  blood  was  present.   The
                 underlying bones were fractured.

           10.  A lacerated and stitched wound 1” long present just  medial
                 to injury No. 9, clotted blood was present.

           11.  A lacerated and stitched wound  2”  long,  present  on  the
                 front of lower one third of right leg.

           12.  A stitched wound 1” long, 2 inch lateral to injury  No.  11
                 clotted blood was present.

           13.  A stitched wound 1 ½” long present 1 ½”  medial  to  injury
                 No. 11.  Clotted blood was present.”



    13. In his examination-in-chief he has clearly stated that some of  the
        injuries could have been  caused  by  the  relevant  organ  of  the
        body/struck by a blunt countering by the wheel of a  tractor.   The
        submission of the learned counsel for the appellants is that  there
        is no clear cut opinion by the two doctors and, in fact,  there  is
        an irreconcilable contradiction which would show that no injury was
        caused by running over of a tractor  falsifying  the  case  of  the
        prosecution.  The said submission leaves us unimpressed inasmuch as
        we really do not find that  there  is  any  contradiction  of  that
        nature which  would  cause  a  concavity  in  the  version  of  the
        prosecution.   As  we  find,  the   ocular   testimony   has   been
        corroborated by the medical evidence to  a  major  extent  in  that
        regard  and  hence,  it  would  be  inappropriate  to  discard  the
        prosecution  case.   That  apart,  the  mental  condition  of   the
        witnesses can be well appreciated and, in any case, they  were  not
        expected to state with exactitude how the injuries were  caused  by
        the tractor.   From  the  evidence  of  Dr.  Jindal,  PW-4,  it  is
        evincible that the injuries sustained by the deceased on  his  legs
        and arms could have been caused by the tractor wheels.  Similar  is
        the opinion of Dr. Partap Singh, PW-1 and in the  cross-examination
        he has explained why crush injuries were not  there.   It  is  also
        worthy to mention that nothing has  been  elicited  in  the  cross-
        examination of the eye  witnesses  on  that  score.   In  fact,  no
        suggestion has also been given.  It has come out  in  the  evidence
        that all the accused persons had carried lathis  and  most  of  the
        injuries were caused due to lathi blows and some  by  the  tractor.
        Thus, the ocular testimony  gets  corroboration  from  the  medical
        evidence, and, therefore, the stance that the prosecution witnesses
        have made an effort to exaggerate their version ascribing a serious
        role to Om Prakash, in our considered  opinion,  is  mercurial  and
        deserves to be repelled and we do so.

    14. It is next submitted by learned counsel for the appellants that the
        so called eye witnesses have not ascribed any specific overt act to
        each of the accused and there are only  spacious  allegations  that
        they were armed with lathis and inflicted injuries on the deceased.
         In essence, the submission is that in the absence of any  specific
        ascription or attribution of any particular  role  specifically  to
        each of the accused Section 149 IPC would  not  be  attracted.   In
        this regard, we may refer to a passage from Baladin and  others  v.
        State of Uttar Pradesh[6] wherein a three-Judge  Bench  had  opined
        thus: -

           “It is well settled that mere presence in an assembly  does  not
           make such a person a member of an unlawful assembly unless it is
           shown that he had done something  or  omitted  to  do  something
           which would make him a member of an unlawful assembly, or unless
           the case falls under Section 142, Indian penal Code.”



    15. The aforesaid enunciation of law was  considered  by  a  four-Judge
        Bench  in  Masalti  v.  The  State  of   Uttar   Pradesh[7]   which
        distinguished the observations  made  in  Baladin  (supra)  on  the
        foundation that the said decision should be read in the context  of
        the special facts of the case and may not be treated as laying down
        an unqualified proposition of law.   The  four-Judge  Bench,  after
        enunciating the principle, stated as follows: -

           “It would not be correct to say that before a person is held  to
           be a member of an unlawful assembly, it must be  shown  that  he
           had committed some illegal overt act or had been guilty of  some
           illegal omission in  pursuance  of  the  common  object  of  the
           assembly.  In fact, S. 149 make it clear that if an  offence  is
           committed by any member of an unlawful assembly  in  prosecution
           of the common object of that assembly, or such as the members of
           the assembly knew to be likely to be committed in prosecution of
           that object, every person who, at the time of committing of that
           offence, is a member of the same assembly,  is  guilty  of  that
           offence; and that emphatically brings out the principle that the
           punishment prescribed by S. 149 is in a sense vicarious and does
           not always proceed on  the  basis  that  the  offence  has  been
           actually committed by every member of the unlawful assembly.”



    16. Common object of an unlawful assembly can also be gathered from the
        nature of the assembly, the weapons used by  its  members  and  the
        behavior of the assembly at or before the scene of occurrence.   It
        cannot be stated as a general proposition of  law  that  unless  an
        overt act is proven against the person  who  is  alleged  to  be  a
        member of the unlawful assembly, it cannot be held  that  he  is  a
        member of the assembly.  What is really required to be seen is that
        the member of the unlawful assembly should have understood that the
        assembly was unlawful and was likely to  commit  any  of  the  acts
        which fall within the purview of Section 141 IPC.  The core of  the
        offence is the word “object” which means the purpose or design  and
        in order to make it common, it should be shared by  all.   Needless
        to say, the burden is  on  the  prosecution.   It  is  required  to
        establish whether the accused persons were present and whether they
        shared the common object.  It is also an  accepted  principle  that
        number and nature of injuries is a relevant fact to deduce that the
        common object has developed at the time of incident.  (See Lalji v.
        State of U.P.[8], Bhargavan  and  others  v.  State  of  Kerala[9],
        Debashis  Daw  and  others  v.  State  of   West   Bengal[10]   and
        Ramachandran and others v. State of Kerala[11]).

    17. In the case at hand, as the evidence would clearly  show,  all  the
        accused persons had come together armed with lathis.  Het Ram,  who
        died during the pendency of the appeal, was armed with a gun.   The
        eye witnesses who  are  natural  witnesses,  being  brothers,  have
        deposed in an unequivocal manner  about  the  assault  by  all  the
        accused persons.  The common object is clearly evident.  In such  a
        situation, attribution of specific individual overt act has no role
        to play.  All the requisite tests to attract Section 149  IPC  have
        been established by the prosecution.

    18. In view of our aforesaid analysis, as all the contentions raised by
        the learned counsel for the appellants  are  sans  substratum,  the
        appeals, being devoid of merit, stand dismissed.




                                                             ……………………………..J.
                                                        [K.S. Radhakrishnan]






                                                             ……………………………..J.
                                                               [Dipak Misra]


      New Delhi;
      April 16, 2014.
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[1]      (1994) 5 SCC 188
[2]      (2001) 6 SCC 71
[3]      (2007) 2 SCC 170
[4]      (2011) 4 SCC 552
[5]      (2013) 5 SCC 655
[6]      AIR 1956 SC 181
[7]      AIR 1965 SC 202
[8]      (1989) 1 SCC 437
[9]      (2004) 12 SCC 414
[10]     (2010) 9 SCC 111
[11]     (2011) 9 SCC 257