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2006(5) Supreme 171
SUPREME COURT OF INDIA
(From Bombay High Court)
H.K. Sema and A.K. Mathur, JJ.
A.N. Roy, Commissioner of Police & Anr. — Appellants
versus
Suresh Sham Singh — Respondent
Criminal Appeal No. 702 of 2006
(Arising out of S.L.P. (Crl.) No. 150 of 2006)
With
Criminal Appeal Nos. 703-714 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)
Decided on 4-7-2006
Counsel for the Parties :
For the Appellants : U.U. Lalit, Sr. Advocate, A.P. Mayee, Sanjeev Kumar Choudhary, V.N. Raghupathy, Advocates.
For the Respondent : S.K. Dubey, Sr. Advocate, Shakil Ahmed Syed, Sushil Karanjkar, K.N. Rai, Shrish Kumar Misra, Ashok R. Pandey, V.P. Singh, Niraj Sharma, D. Lima, Chandra Mohan Anisetty, Vikrant Singh Bais, Samrat Nigam, Siddhartha Chowdhary, Advocates.
Held : 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 Courts 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 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. (Paras 19 & 20)
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. (Paras 23 to 26)
JUDGMENT
H.K. Sema, J. — Leave granted.
2. 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.
3. 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 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. The whole controversy boils down to this issue, as to whether the Notification dated 1.10.1999 issued by the State of Maharashtra empowering the Comm
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