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CASE NO.: Appeal (crl.)  702 of 2006

PETITIONER: A.N. Roy,Commissioner of Police & Anr.

RESPONDENT: Suresh Sham Singh

DATE OF JUDGMENT: 04/07/2006

BENCH: H.K. SEMA & A.K. MATHUR

JUDGMENT: J U D G M E N T

(Arising out of S.L.P.(Crl.) No. 150 of 2006) WITH CRIMINAL APPEAL NO.   708 OF 2006 CRIMINAL APPEAL NO.   714 OF 2006 CRIMINAL APPEAL NO.   711 OF 2006 CRIMINAL APPEAL NO.   703 OF 2006 CRIMINAL APPEAL NO.   704 OF 2006 CRIMINAL APPEAL NO.   705 OF 2006 CRIMINAL APPEAL NO.   706 OF 2006 CRIMINAL APPEAL NO.   712 OF 2006 CRIMINAL APPEAL NO.   713 OF 2006 CRIMINAL APPEAL NO.   710 OF 2006 CRIMINAL APPEAL NO.   707 OF 2006 CRIMINAL APPEAL NO.   709 OF 2006 (Arising out of S.L.P.(Crl.) Nos.133, 134, 135, 136, 137, 138,  139, 147, 148, 151, 164 and  165 of 2006)

H.K.SEMA,J.

               Leave granted.

               The challenge in these batches of appeals is to the  order dated 6.5.2005 passed by the High Court of Judicature  at Bombay in Criminal Writ Petition No.1333 of 2004 whereby  the High Court quashed the Notification dated 1.10.1999  issued by the State of Maharashtra.                 The Background facts:-

               The Parliament enacted the Immoral Traffic  (Prevention) Act, 1956 (hereinafter referred to as the Act).  Statement of objects and reasons is as follows:- (1)     In 1950 the Government of India ratified  an International Convention for the  Suppression of Immoral Traffic in Persons  and the Exploitation of the Prostitution of  Others.  Under Article 23 of the  Convention, traffic in human beings is  prohibited and any contravention of the  prohibition is an offence punishable by  law.  Under Article 35 such a law has to be  passed by Parliament as soon as may be  after the commencement of the  Constitution.

(2)     Legislation on the subject of suppression

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of immoral traffic does exist in a few States  but the laws are neither uniform nor do  they go far enough.  In the remaining  States there is no bar on the subject at all.

(3)     In the circumstances it is necessary and  desirable that a Central Law should be  passed which will not only secure  uniformity but also would be sufficiently  deterrent for the purpose.  But a special  feature of the Bill as that it provides that  no person or authority other than the  State Government shall establish or  maintain any protective home except  under a licence issued by the State  Government.  This will check the  establishment of homes which are really  dens for prostitution.   

               As the problem of trafficking of minor girls and  women in the metropolitan city of Bombay was on the increase  in an epidemic form, the State of Maharashtra issued a  Notification NO.PPA-0199/778/CR-10/POL-8 dated 1.10.1999  conferring on the Commissioner of Police, Brihan Bombay, the  powers of District Magistrate within the metropolitan area of  Brihan Bombay, for the purposes of Sections 18 and 20 of the  Act. The Notification was issued in exercise of powers  conferred by sub-section (5) read with sub-sections (1) and (2)  of Section 20 of the Code of Criminal Procedure, 1973  (hereinafter referred to as the Code) and of all other powers  enabling it in that behalf.                        The powers so conferred on the Commissioner of  Police, Brihan Bombay, was with a laudable object to check  the alarming rise in the incidences of trafficking of minor girls  and women to the cities, luring of young girls to the cities who  ended up in brothels, back log of cases piling up and resultant  alarming increase in AIDS and other venereal diseases in  cities.                   Pursuant to the aforesaid Notification, the Police  Commissioner constituted the task force, which conducted an  effective raid and ordered eviction or closure of the brothels as  preventive steps to curb the menace, which has achieved  desired results.             On 1.4.2004 the show cause notice under Section 18  clause (1) of the Act was issued.  On 15.4.2004 the respondent  herein replied to the show cause notice.  After examining the  reply to the show cause notice an eviction order was passed  against the respondent by an order dated 28.6.2004.  Being  aggrieved by the order of eviction the respondents herein filed  a Writ Petition No. 1333 of 2004 challenging the order dated  28.6.2004 as bad in law.  The High Court by its impugned  order dated 6.5.2005 set aside the order dated 28.6.2004 of  the Commissioner of Police and held that the Notification  dated 1.10.1999 pursuant to which the order of eviction was  passed was ab initio bad in law.   According to the High Court,  aforesaid Notification does not empower the Police  Commissioner, Bombay to assume the jurisdiction of the  District Magistrate for the purposes of Sections 18 and 20 of  the Act.                 We have heard the parties at length.                 The whole controversy boils down to this issue, as  to whether the Notification dated 1.10.1999 issued by the

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State of Maharashtra empowering the Commissioner of Police,  Brihan Bombay, the powers of District Magistrate for the  purposes of Sections 18 and 20 of the Act, has been validly  made?                         

       The important questions of law involved in these  appeals are common and they are being disposed by this  common order.               To answer the aforesaid question it will be necessary  to notice the Notification itself.  The Notification dated  1.10.1999 reads:-

"In exercise of the powers conferred by sub- section (5) read with sub-sections (1) and (2) of  section 20 of the Code of Criminal Procedure,  1973(2 of 1974), and of all other powers  enabling it in that behalf, the Government of  Maharashtra hereby confers on the  Commissioner of Police, Brihan Mumbai, the  powers of the District Magistrate, within the  metropolitan area of Brihan Mumbai, for the  purposes of sections 18 and 20 of the Immoral  Traffic (Prevention) Act, 1956 (104 of 1956)."  

       From the Notification, it clearly appears that the  State of Maharashtra invoked the power conferred upon the  State by sub-section 5 read with sub-section (1) and (2) of  Section 20 of the Code of Criminal Procedure.                  Section 20 of the Code is extracted in extenso: 20. Executive Magistrates.-(1)In every district  and in every metropolitan area.  The State  Government may appoint as many persons as  it thinks fit to be Executive Magistrates and  shall appoint one of them to be the District  Magistrate.

(2) The State Government may appoint any  Executive Magistrate to be an Additional  District Magistrate, and such Magistrate shall  have (such) of the powers of a District  Magistrate under this Code or under any other  law for the time being in force (as may be  directed by the State Government).

(3) Whenever, in consequence of the office of a  District Magistrate becoming Vacant, any  officer succeeds temporarily to the executive  administration of the district, such officer  shall, pending the orders of the State  Government, exercise all the powers and  perform all the duties respectively conferred  and imposed by this Code on the District  Magistrate.  

(4) The State Government may place an  Executive Magistrate in charge of a sub- division and may relieve him of the charge as  occasion requires; and the Magistrate so  placed in charge of a sub-division shall be  called the Sub-divisional Magistrate.

(5)  Nothing in this section shall preclude the  State Government from conferring.  Under any

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law for the time being in force, on a  Commissioner of Police, all or any of the  powers of an Executive Magistrate in relation  to a metropolitan area.

               Section 20 as quoted above plainly consists of three  parts.  The first part deals with the power of the State  Government to appoint as many persons as it thinks fit to be  Executive Magistrates and to appoint one of them to be the  District Magistrate.  The second part empowers the State  Government to appoint any Executive Magistrate to be an  Additional District Magistrate and such Magistrate shall have  the powers of a District Magistrate under the Code or under  any other law for the time being in force as may be directed by  the Government.  The third part is sub-section (5) of Section  20 which empowers the State Government for conferring  under any law for the time being in force, on a Commissioner  of Police, all or any of the powers of an Executive Magistrate in  relation to a metropolitan area.                 We may at this stage clarify that the admitted  position is that Brihan Bombay is a metropolitan area.                         The main thrust of arguments of Mr. UU Lalit,  learned senior counsel for the appellants, is that the State  Government issued a Notification in exercise of Powers under  sub-section (5) read with sub-sections (1) and (2) of Section  20.  Therefore, the provisions of sub-sections (1) and (2) of the  Code shall be deemed to have been complied with and the  High Court has erred in law in setting aside the Notification for  non compliance of sub-sections (1) and (2) of Section 20.                 Per contra learned counsel for the respondents  contended that unless a person is appointed as an Executive  Magistrate by virtue of sub-section (1) of Section 20 he cannot  be conferred powers of Additional District Magistrate under  sub-Section (2) of Section 20. It is further contended by the  counsel that the powers of State Government conferred by  sub-section (5) of the Code only speak about conferring on  Commissioner of Police powers of the Executive Magistrate  and not the District Magistrate and, therefore, the  Commissioner of Police cannot act as a District Magistrate for  the purposes of Sections 18 and 20 of the Act and therefore,  the High Court has rightly set aside the Notification as ab initio  bad in law.  It is further contended that the Commissioner of  Police cannot be appointed as an Executive Magistrate under  sub-sections (1) and (2) of the Code in view of specific  provision made in sub-section (5) of the Code.                  We may at this stage notice the view taken by the  High Court while setting aside the Notification.  In paragraph  11 the High Court has stated as under:-

"Very fact that in case of Commissioner of  Police and that too restricted in the  metropolitan area, a specific provision has  been made in sub-section (5) inspite of a  general provision being there in sub-section (1)  empowering the State Government to appoint  any person as an Executive Magistrate, that  itself discloses the intention of the Legislature  to classify the Commissioner of Police to be  different from the person who can be  appointed as an Executive Magistrate in  exercise of the powers under sub-section (1).   Otherwise, there was absolutely no need of  incorporating a specific provision under sub- section (5) in relation to Commissioner of  Police.  Otherwise, even in the absence of sub-

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section (5) a Commissioner of Police could  have been appointed as an Executive  Magistrate.  The Legislature in its wisdom,  however, has excluded the office of the  Commissioner of Police under sub-section (1)  while reserving the power to the State  Government to confer the powers of an  Executive Magistrate upon the Commissioner  of Police in relation to a metropolitan area.  In  other words, it discloses that in case of the  office of the Commissioner of Police only all or  any of the powers of an Executive Magistrate  can be conferred upon him and that too in  relation to a metropolitan area but the  Commissioner of Police cannot be appointed as  an Executive Magistrate.  The appointment of  a person in an office is different from the  conferment of powers attached to an office  upon the person.  In fact the decision sought  to be relied up by the learned A.P.P., rather  than assisting the contention on the part of  the respondents, justifies the view that we are  taking in the matter.  

In paragraph 17 it is stated as under:-

"Plain reading of the said Notification discloses  that undoubtedly the Government was seeking  to exercise the powers under sub-section (5) r/w  sub-section (1) and (2) of Section 20 of the Code  to confer upon the Commissioner of Police the  powers of the District Magistrate within the  metropolitan area of Brihan Mumbai for the  purpose of Section 18 of the said Act.  However,  as already seen above, the provisions of law  comprised under Section 20 of the Code no  where speak of the Government being  empowered to confer the powers of the District  Magistrate upon the Police Commissioner either  in any metropolitan area or otherwise.  On the  contrary, sub-section (1) specifically restricts  the appointment of District Magistrate from  amongst the Executive Magistrates.  The sub- section (2) relates to the appointment of an  Additional District Magistrate and that too any  one of the Executive Magistrates and the sub- section (5) merely speaks of conferment of  powers of an Executive Magistrate.  The  Notification no where discloses either  conferment of the powers of the Executive  Magistrate or even the appointment of the Police  Commissioner as the Executive Magistrate.  As  already stated, there cannot be appointment of  District Magistrate unless the person is  primarily an Executive Magistrate.  It is settled  law that when the statute defines the limits of  the power that can be conferred upon a specific  officer, the conferment of power has to be within  the parameters prescribed under the statute.  

            The High Court after expressing its views in  paragraphs 11 and 17 as quoted above came to the following  findings:

"i)  The District Magistrate or the Additional

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District Magistrate can be appointed out of the  Executive Magistrate so appointed under  Section 20(1) of the Code.

ii) The Additional District Magistrate can  exercise the powers of the District Magistrate  to the extent directed by the State  Government.

iii) Unless a person is appointed as an  Executive Magistrate, he can neither be  appointed as a District Magistrate nor an  Additional District Magistrate.  

iv) In relation to a metropolitan area the  powers of an Executive Magistrate can be  conferred upon the Commissioner of Police.  

v) The State Government’s power to appoint  any person as an Executive Magistrate in  terms of the provisions of law under sub- section (1) of Section 20 of the Code does not  include the power to appoint the  Commissioner of Police as an Executive  Magistrate.  

vi) As far as the Commissioner of Police is  concerned, he can only be conferred with the  powers of the Executive Magistrate in terms of  sub-section (5) of Section 20 of the Code but is  not entitled to be appointed even as an  Executive Magistrate under sub-section (1) of  Section 20 of the Code.  

vii) The District Magistrate, Additional District  Magistrate and the Executive Magistrate are  three different offices.  

                        We have already noticed the provisions of sub- section (1) and (2) of Section 20 of the Code.  Sub-section (1)  deals with the power of the State Government to appoint  Executive Magistrates as many persons as it thinks fit in every  district and in every metropolitan area.  Sub-section (2) of  Section 20 deals with the power of the State Government to  appoint any Executive Magistrate to be an Additional District  Magistrate and such Magistrate shall have the powers of a  District Magistrate under the Code or under any other law for  the time being in force as may be directed by the State  Government.    We agree with the view of the High Court that  unless a person is appointed as an Executive Magistrate he  cannot be appointed as either an Additional District  Magistrate or the District Magistrate.   To this extent, the High  Court’s view is correct.  But the views of the High Court  contained in sub clause V and VI of the findings, in our view,  are not correct.                    Under sub-section (1) of Section 20 the  Government has got the power to appoint as many persons as  it thinks fit to be Executive Magistrates in every district and in  every metropolitan area and shall appoint one of them to be  the District Magistrate.  The words, "as many persons"  employed in sub-section (1) are adequately elastic to include  the Commissioner of Police.  In other words, the State  Government is not precluded from appointing the  Commissioner of Police in metropolitan area as an Executive

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Magistrate.  We have already noted that Brihan Bombay is a  metropolitan area.  Once the Commissioner of Police is  appointed as an Executive Magistrate in Brihan Bombay, he  can be appointed as an Additional District Magistrate, who  shall have the powers of the District Magistrate for the  purposes of Sections 18 and 20 of the Act.  In our opinion, this  would be the correct reading of the statute.  This view of ours  is further clarified by sub-section (5) of Section 20 when it is  stated that nothing in this section shall preclude the State  Government from conferring under any law for the time being  in force, on Commissioner of Police, all or any of the powers of  an Executive Magistrate in relation to a metropolitan area.                   It is now well settled principle of law that the Court  cannot enlarge the scope of legislation or intention when the  language of the statute is plain and unambiguous. Narrow and  pedantic construction may not always be given effect to.  Courts should avoid a construction, which would reduce the  legislation to futility. It is also well settled that every statute is  to be interpreted without any violence to its language. It is also  trite that when an expression is capable of more than one  meaning, the court would attempt to resolve the ambiguity in  a manner consistent with the purpose of the provision, having  regard to the great consequences of the alternative  constructions.             In Anwar Hasan Khan v. Mohd. Shafi and Ors. (2001)  8 SCC 540 this Court held: (SCC p.543 para 8)

"8.....It is a cardinal principle of construction  of a statute that effort should be made in  construing its provisions by avoiding a conflict  and adopting a harmonious construction. The  statute or rules made thereunder should be  read as a whole and one provision should be  construed with reference to the other provision  to make the provision consistent with the  object sought to be achieved...."                  Reading sub-sections (1), (2) and (5) of Section 20 in  conjunction, we are of the view, that the State has power to  appoint the Commissioner of Police of Brihan Bombay as an  Executive Magistrate and further appoint him as an Additional  District Magistrate, who shall have the powers of District  Magistrate for the purposes of Sections 18 and 20 of the Act.            The State Government shall now appoint the  Commissioner of Police as an Executive Magistrate in Brihan  Bombay and shall further appoint him as an Additional  District Magistrate, who shall have the powers of District  Magistrate for the purposes of Sections 18 and 20 of the Act.          In the peculiar facts and circumstances of this case,  the status quo ante as on 28.6.2004 shall be maintained till  the Commissioner of Police is appointed by the State  Government in the above terms.  This would mean the  Commissioner of Police after necessary appointment shall  revive the case from the stage of order of eviction i.e.  28.6.2004.         In the view that we have taken, these appeals are  partly allowed and disposed of in terms of the above order.   Needless to say that necessary orders appointing the  Commissioner of Police as an Executive Magistrate in terms of  the above order shall be made within a month from the date of  the receipt of the order.