TMI Blog2006 (7) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 commence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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