1. In this case the accused was convicted of failing to produce a license on demand by a police officer under Clause (c) of subs. 2 of Section 26 of Bombay Act VII of 1920. The District Magistrate refers the case to us on the ground that the reason for this failure was the fact that the Assistant Superintendent of Police, Poona, had suspended the accused's license, and that he had no authority to make this suspension under Sub-section (2) of the Act, read with the Commissioner C. D.'s Notification of December 18, 1920, which says that the duties assigned by the Act to the Commissioner of Police shall be performed by the District Superintendent of Police. He says that he has made inquiries with the District Superintendent of Police whether the Assistant Superintendent of Police had authority to suspend a license under Section 12(2) of the Act; and that the District Superintendent of Police reported that the Assistant Superintendent 'has no lawful authority to suspend a license,' but he considers the Commissioner 0. D 's Notification is a sufficient authority for that act. The District Magistrate is of opinion that, unless this power has been delegated to the Assistant Superintendent specifically, the action taken by him is illegal and the sentence of fine inflicted on the accused is consequently illegal.
2. It is not quite clear whether the District Superintendent of Police means that he has not in fact delegated authority to the Assistant Superintendent of Police to suspend a license under Section 12, or whether he means that in spite of such delegation there is no lawful authority in view of the Commissioner C. D.'s notification. If there has in fact been a delegation of authority by the District Superintendent of Police to the Assistant Superintendent, then it seems to me that the Assistant Superintendent's act would not be unlawful merely because the Commissioner's notification refers to the District Superintendent of Police and not to any of his subordinates. Section 19 of the Bombay General Clauses Act I of 1904, lays down that 'it shall be sufficient, for the purpose of expressing that a law relative to the chief or superior of an office shall apply to the deputies or subordinates lawfully performing the duties of that office in the place of their superior, to prescribe the duty of the superior.' A power to delegate may be express or implied in an Act: thus in Dharam Chand Lal v. Queen-Empress 1. L. R.(1893) Cal. 596 it was held that a nazir had implied authority to delegate the execution of a warrant to his peon, The rank of an assistant to an officer necessarily implies that that assistant may ordinarily exercise the powers of that officer, when and as duly delegated to him. Many instances can be cited where this power is expressly provided for. Thus under Section 6 of the Land Revenue Code, an assistant to a Commissioner shall perform such duties as the Commissioner to whom he is subordinate may from time to time direct. Again under Section 10 of the same Code an Assistant Collector is to perform such particular duties as the Collector may from time to time see fit to assign to him. In the General Police Act V of 1861 it is enacted by Section 1 that the words 'District Superintendent' or 'District Superintendent of Police' shall include any Assistant District Superintendent or other person appointed by general or special order of the Local Government, to perform all or any of the duties of a District Superintendent of Police under that Act in any District. Paragraph 23 of the Bombay District Police Manual, Vol. I, page 8, shows that under that particular section a Deputy Superintendent of Police has been empowered to perform such of the duties of the District Superintendent as the latter may from time to time authorise him to perform on his behalf. Again Sub-section (2) of Section 6 of the Bombay City Police Act, 1902, says, an Assistant Commissioner shall exercise such powers and perform such duties as may from time to time be delegated or assigned to him by the Commissioner of Police. The Bombay District Police Act, 1890, does not contain any express provision on the subject but in view of what is implied in the word 'assistant' itself, it may, I think, be legitimately taken that a similar power of delegation is implied. 'Under Section 27 Clause (1) of that Act the Inspector General of Police may make regulations in regard to the particular duties to be done by different police officers, and accordingly the implied power of delegation can be regulated in that manner, Subject to any rule preventing the District Superintendent of Police from delegating his power to suspend a license under Section 12 of the Bombay Public Conveyances Act VII of 1920, there is, in my opinion, no legal impediment to such a power being delegated to the Assistant Superintendent. The Commissioner's notification is one that in framed with reference to Section 36 of the Act VII of 1920, which requires him to appoint Borne to perform the functions assigned by that Act to the Commissioner of Police. It, therefore, naturally refers only to the District Superintendent of Police, but in view of Section 19 of the Bombay Genera] Clauses Act and the considerations I have mentioned, that notification in itself does not necessarily make the Assistant Superintendent's act unlawful. Accordingly, I think that, before we decide to interfere, we should have a report from the District Magistrate as to exactly how matters stand in regard to any actual delegation of authority by the District Superintendent of Police to the Assistant Superintendent. It may further be pointed out that, if the accused's license has been suspended, it Would have been more appropriate to prosecute the accused under Sub-section (1) of Section 26 for driving a public conveyance without a license for the time being in force rather than for failure to produce a license, which is not an offence really affected by the question of suspension of the license except on the principle of lex non cogit ad impossibilia.
3. THE District Superintendent of Police accordingly submitted a report as follows :-
I have riot actually issued written orders delegating the authority empowered in me by the Commissioner C. D.'s No. P. O. L 3-89 A of December 1920, but under my verbal orders, all the duties involved in the working of the Public Conveyances Act in Poona have been carried out by the Assistant Superintendent of Police or Deputy in charge of City Sub-Division since 1915.
Looking to the definition of the Act, Section 2 (a) states that the ' Commissioner of Police ' includes any person authorised by him to perform any duty imposed or conferred on the Commissioner by the Act.
4.The reference was again considered by the High Court.
5. No appearance on either side.
6. The District Superintendent of Police has now reported that no written orders delegating the authority vested in him by the Notification of the Commissioner, 0. D., of December 1920 have been issued by him, but under verbal orders all the duties involved in the working of the Public Conveyances Act in Poona have been carried out by the Assistant Superintendent of Police or the Deputy in charge of City Sub-Division since 1015.
7. As already mentioned in my previous judgment the delegation of powers under the Act of 1920 can be effected, and the definition of ' Commissioner of Police' in Section 2 of the Act supports this view. But in a case where there has been an exercise of a power under alleged delegated authority, it is clearly necessary for a conviction in a case like the present that the delegation should be clearly shown. No doubt, the District Superintendent of Police means not only that there was a delegation of authority to perform the duties imposed by the Act on the District Superintendent of Police in place of the Commissioner of Police, but also of authority to exercise any powers conferred by the Act on the District Superintendent of Police, in the same manner; and, therefore, it is possible to say that the Assistant Superintendent of Police, who suspended the accused's license in this case, had authority to do so under Sub-section (2) of Section 12 of the Act. But, on the other hand, it is, in our opinion, desirable that the question of such authority should not depend on a general verbal order of the kind in question, and the District Superintendent of Police ought to pass written orders, giving references to the various sections of the Act, and specifying particular powers and duties which he delegates to an Assistant or Deputy Superintendent of Police. The power to refuse to grant a license, or to refuse to renew it, or to suspend or cancel it, is one which is of some importance and, before delegating such a power, the District Superintendent of Police ought to consider whether it can properly be so delegated. Having regard to these considerations, we do not think that the conviction should be allowed to stand, The omission of the accused to produce his license was in consequence of the order of the Assistant Superintendent of Police suspending it; and as it is not clear that the Assistant Superintendent of Police had proper authority to deprive the accused of his license for a time, the conviction does not rest on a sufficient basis.
8. We, accordingly, reverse the conviction under Section 26, Sub-section (2) (e) of Bombay Act VII of 1920, and direct that the fine of Rs. 10, if paid, should be refunded to the accused.