TMI Blog2019 (9) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... areas. For instance, the High Court of Bombay (Aurangabad Bench) in INDUSIND BANK LTD., (FORMERLY KNOWN AS ASHOK LEYLAND FINANCE LTD.) THROUGH ITS LEGAL EXECUTIVE, RAVINDRAKUMAR PRAKASH BHARGODEV VERSUS THE STATE OF MAHARASHTRA THROUGH POLICE STATION [ 2008 (4) TMI 791 - BOMBAY HIGH COURT] , had taken a diametrically opposite view. It had held that it is not open to substitute the word, CMM for CJM . For, there is no indication in the 2002 Act that the legislature had intended to empower the CJM outside the metropolitan areas, although the judicial officer (CMM) was entrusted with the power to deal with such request in the metropolitan areas - however, the High Court of Karnataka in M/S KAVERI MARKETING VERSUS THE SARASWAT CO OPERATIVE BANK LTD [ 2013 (1) TMI 993 - KARNATAKA HIGH COURT] took the same view as taken by the High Court of Kerala that the CJM can also exercise powers under Section 14 of the 2002 Act. Section 14 of the 2002 Act is not a provision dealing with the jurisdiction of the Court as such. It is a remedial measure available to the secured creditor, who intends to take assistance of the authorised officer for taking possession of the secured asset in fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral Clauses Act, 1886, which is pari materia to Section 17 of the General Clauses Act, 1897. The Court opined that though Section 6 of the Gambling Act specified the office of Commissioner of Police as the authorised officer, however, considering the sweep of Section 2(6) of the Bombay Police Act, 1951, which mentions that the term Commissioner of Police would include an Assistant Commissioner, went on to hold that the search warrant issued by the Assistant Commissioner was valid - A perusal of Section 11 of the Police Act leads to the inescapable conclusion that an Assistant Commissioner appointed under subsection (1) is to perform such duties and functions as can be exercised under the Act or any other law for the time being in force, which undoubtedly includes the Gambling Act which was a law in force at the time when the Police Act was passed. Apart from this the Assistant Commissioner could also perform those functions which could be assigned to him by the Commissioner under the general or special orders of the State Government. The substitution of functionaries (CMM as CJM) qua the administrative and executive or so to say nonjudicial functions discharged by them in lig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of 2019) Criminal Appeal No(s).945 of 2019 Civil Appeal No(s) 75607561 of 2019 (Arising out of SLP (C) No(s).1372213723 of 2019) Criminal Appeal No(s) 1476 of 2019 (Arising out of SLP (Crl.) No(s).5346 of 2019) Criminal Appeal No(s) 1477 of 2019 (Arising out of SLP (Crl.) No(s).5351 of 2019) A. M. Khanwilkar And Dinesh Maheshwari, JJ. JUDGMENT A.M. Khanwilkar, J. Delay condoned. Leave granted in Special Leave Petitions. 2. The seminal question involved in these appeals is: whether the Chief Judicial Magistrate (for short, CJM ) is competent to process the request of the secured creditor to take possession of the secured asset under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 2002 Act )? There are conflicting views of different High Courts on this question. The High Courts of Bombay, Calcutta, Madras, Madhya Pradesh and Uttarakhand have interpreted the said provision to mean that only the Chief Metropolitan Magistrate (for short, CMM ) in metropolitan areas and the District Magistrate (for short, DM ) in nonm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the metropolitan areas. Again in Arjun Urban Cooperative Bank Ltd., Solapur Vs. Chief Judicial Magistrate, Solapur and Ors. 2009 (5) Mh. L.J. 380, another Division Bench of the High Court of Bombay opined that Section 14 of the 2002 Act, in no univocal terms, constricts the exercise of powers only by the CMM or DM, as the case may be. 6. However, in 2013, the High Court of Karnataka in Kaveri Marketing Vs. The Saraswathi Coop. Bank Ltd. 111 (2013) BC 582 took the same view as taken by the High Court of Kerala that the CJM can also exercise powers under Section 14 of the 2002 Act. But the Single Judge of the High Court of Calcutta in Dinesh Kumar Agarwal Vs. State of West Bengal 2013 (1) CHN 671 and the full bench of Madras High Court in K. Arockiyaraj Vs. The Chief Judicial Magistrate, Srivilliputhur Virudhunagar District and The Housing Development Finance Corporation Limited AIR (2013) Mad. 206 took a different view as taken by the High Court of Bombay and held that the CMM or DM, as the case may be, alone can exercise powers under Section 14 of the 2002 Act. Later, the High Court of Madras in T.C. Ramadoss and Ors. Vs. The Chief Manager Authorised Officer S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoking the doctrine of Casus Omissus in light of the unambiguous provision in the form of Section 14 of the 2002 Act. Thus, the similarity of functions discharged by the CMM and CJM under the Cr.P.C. would be of no avail. Rather, the Court must follow the maxim cum inverbis nulla ambiguitas est, non debet admitti voluntatis quaestio and prefer the plain language of the statute. To demonstrate the distinction between the hierarchy of the judicial officers, reliance has been placed on a chart which clearly distinguishes them on the basis of their functions as non Judicial Magistrate and Judicial Magistrate in the concerned area. The office of DM essentially discharges executive functions and comes within the non Judicial Magistrate category. On the other hand, the office of CMM or CJM would involve both executive and judicial functions. This distinction is crucial and it must be presumed that the Parliament was conscious about this distinction. It is also urged that the Parliament in various Acts, including the Sick Industrial Companies (Special Provision) Act, 1985 Section 29, Banking Regulation Act, 1949 Section 45S, Industrial Reconstruction Bank of India, 1984 Section 51 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inquiry envisaged under Section 14 of the 2002 Act, to be undertaken by the CMM or DM, is minimal and basic in nature. It is only to satisfy itself about the factual position stated by the secured creditor in the concerned application including the appended affidavit filed therewith. It is not an adjudicatory process muchless to decide about the rights and liabilities of the contesting parties. The nature of inquiry is essentially one of exercise of administrative or executive powers. SubSection (1A) enables the DM or CMM to authorise any officer subordinate to him to take possession. 13. The CMM and CJM are clothed with powers as per the scheme of Cr.P.C.. The office of CMM and CJM are interchangeable and they discharge similar functions in their respective jurisdictions namely, metropolitan and nonmetropolitan areas, as the case may be. The recent enunciation of this Court expounds that the inquiry requires judicious approach. Therefore, it could be effectively exercised by CJM in a nonmetropolitan area. There is no express provision in the 2002 Act, so as to disregard the dispensation under the Cr.P.C., concerning the exercise of powers by the CMM and CJM respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e achieved. A purposive interpretation of Section 14 as including the office of CJM in a nonmetropolitan area would further the legislative intent as it would enable the secured creditor to approach the CJM to take possession of the secured assets thereat. 16. It is urged that the borrowers or the persons claiming through borrowers, cannot be heard to make any grievance, if the application filed under Section 14 is dealt with by a judicial mind; and moreso because the nature of inquiry to be undertaken is circumscribed. In that, it is merely verification of compliances by the secured creditor. In any case, the aggrieved borrower has a statutory remedy of appeal against the order passed by the CJM as would be available against the order passed by CMM/DM. Similarly, all contentious issues available to the borrowers or the persons claiming through them could be raised by them even before the CJM, who would be equally competent to deal with the same as would be done by the CMM/DM, as per law. Considering the fact that the CMM and CJM both discharge similar functions and are treated equivalent for all purposes in the respective territorial jurisdictions, it is not a case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing possession or control of any such secured asset, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him- (a) take possession of such asset and documents relating thereto; and (b) forward such assets and documents to the secured creditor: 1[Provided that any application by the secured creditor shall be accompanied by an affidavit duly affirmed by the authorised officer of the secured creditor, declaring that- (i) the aggregate amount of financial assistance granted and the total claim of the Bank as on the date of filing the application; (ii) the borrower has created security interest over various properties and that the Bank or Financial Institution is holding a valid and subsisting security interest over such properties and the claim of the Bank or Financial Institution is within the limitation period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay authorise any officer subordinate to him, (i) to take possession of such assets and documents relating thereto; and (ii) to forward such assets and documents to the secured creditor.] (2) For the purpose of securing compliance with the provisions of subsection (1), the Chief Metropolitan Magistrate of the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate 6[any officer authorised by the Chief Metropolitan Magistrate or District Magistrate] done in pursuance of this section shall be called in question in any court or before any authority. 1. Ins. By Act 1 of 2013, sec. 6(a) (w.e.f. 1512013, vide S.O. 171 (E), dated 1512013). 2. Subs. By Act 44 of 2016, sec. 12(i) (w.e.f. 192016, vide S.O. 2831(E), dated 1st September, 2016). 3. Ins. By Act 44 of 2016, sec. 12(ii) (w.e.f. 192016, vide S.O. 2831(E), dated 1st September, 2016). 4. Corrected by Corrigendum Notification, published ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he possession was taken. The Court reiterated that in absence of any adjudicatory power vested in the authority referred to in Section 14 of the 2002 Act, it had no powers to exercise the powers vested in the Tribunal. Whereas, it can only facilitate the secured creditor in taking possession of the secured assets after verification of the basic facts regarding the entitlement of the secured creditor to get such possession. The Court then adverted to the exposition of this Court in Transcore Vs. Union of India and Another (2008) 1 SCC 125(paragraph No.74), which had analysed the provisions of the 2002 Act. It then adverted to the Gujarat High Court decision in Bank of India Vs. Pankaj Dilipbhai Hemnani and Others AIR 2007 Guj. 201 and agreed with the dictum therein that the authority referred to under Section 14 of the 2002 Act can only verify whether 60 days notice as prescribed under Section 13(2) was issued or not and whether secured asset is identifiable. It then noted that after such inquiry the authority before taking action is obliged to satisfy itself in that regard. At the same time, it cannot enter upon adjudication or trial of a dispute while exercising power under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Others (2002) 255ITR 147 (SC), a Constitution Bench of this Court had held that a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself . Lastly, the Court adverted to the decision in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut 2007 (2) KLT 470 (SC) (paragraph Nos.34 and 35) which had considered the dictum in Reserve Bank of India and Others Vs. Peerless General Finance and Investment Company Ltd. and Another (1996) 1 SCC 642; and Kehar Singh and Others Vs. State (Delhi Admn.) (1988) 3 SCC 609 to hold that if the statutory provision is open to more than one interpretation, then the Court must adopt the one which represents the true intent of the legislature. However, the function of the Court is only to expound and not to legislate. At the same time, the process of construction combines both literal and purposive approaches. Finally, the Court went on to observe that in the present case there was no casus omissus. In that, CJM in metropolitan areas are designated as CMM and vice versa mutatismutandis by implication and reference by the areas of jurisdiction both stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication of the provisions of the Cr.P.C., would be in addition to and not in derogation of the provisions of 2002 Act and the provisions of the Code cannot be excluded from consideration while dealing with the 2002 Act. It disagreed with the Full Bench of the Madras High Court that Section 35 of the 2002 Act would override the provisions of Cr.P.C.. After analysing the other decisions, it went on to hold that in terms of Section 14 of the 2002 Act, the CJM can authorise any officer subordinate to him to take possession of such assets after examining the correctness of the assertion made in the affidavit. Thus, it is only a procedural step without any adjudication of any dispute whatsoever. The action is therefore, only an administrative order made for taking possession of the secured assets, if all other conditions are fulfilled. Having already noted that the powers exercised by the CMM and DM in terms of Section 14 of the 2002 Act are synonymous to each other and that they are not adjudicatory in nature, it answered the question under consideration in the affirmative. The Court then noted that there was no casus omissus nor it was reading something into the provision which the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature never intended to, nor the interpretation given by us, in any way, defeats the intention of the Legislature. It is a purposive interpretation to advance the true intention of the legislature for enacting the Act, viz. speedy recovery of bad debts of the banks and financial institutions declared as NPAs. On the contrary, adopting the principles of literal construction in interpretation of the word 'Chief Metropolitan Magistrate' would not only defeat the object and purpose of legislation but would lead to manifestly anomalous result which could not have been intended by the legislature. As per Lord Reid in the case of Luke Vs. IRC, 1966 AC 557, where to apply words would literally defeat the obvious intention of the legislation and produce a wholly unreasonable result, we must do some violence to the words and so achieve that obvious intention and produce a rational construction. 35. The view taken by us finds support from the Full Bench decision of Andhra Pradesh High Court in the case of T.R. Jewellery Ors. Vs. State Bank of India Ors. (supra) and a Division Bench of High Court of Kerala in the case of Muhammed Ashraf, C. Arifa Vs. Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is inclusive of 'Chief Judicial Magistrate' functioning in a nonmetropolitan area and shall have jurisdiction to entertain an application made by a secured creditor under Section 14 of Act, 2002. 25. We shall now turn to the other decisions taking the view that only DM in a nonmetropolitan area is competent to deal with the application filed by the secured creditor under Section 14 of the 2002 Act. The Division Bench of the High Court of Bombay in IndusInd Bank Ltd. (supra) after adverting to the statement of objects and reasons of the 2002 Act, opined that the secured creditor is not required to obtain a decree from a competent Court/DRT before being entitled to take steps for the purpose of enforcement of recovery in relation to the secured assets. While dealing with the specific issue as to whether, the CJM is competent to deal with the application filed by the secured creditor under Section 14 of the 2002 Act, the Court went by the plain text of Section 14 of the 2002 Act to hold that the CJM was not competent to do so; and that only the CMM in metropolitan areas and DM in nonmetropolitan areas is competent to assist the secured creditor in taking poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and concluded that only CMM in metropolitan areas and DM in nonmetropolitan areas would be competent to deal with the application moved by the secured creditor under Section 14 of the 2002 Act for taking possession of the secured assets. 27. The Single Judge of High Court of Calcutta in Dinesh Kumar Agarwal (supra), while dealing with the question under consideration relied on his previous decision in Ronit Nirman Pvt. Ltd. Vs. State Bank of India and Others A.S.T. 1337 of 2011 (dated 18th October, 2011), wherein he had agreed with the principle expounded by the High Court of Bombay in IndusInd Bank Ltd. (supra). The Court opined that once an authority has been named for the purpose of rendering assistance, the Court cannot confer jurisdiction on any other authority, who has not been named in the statutory provision for exercising such powers. That would amount to usurping legislative function. It, thus, disagreed with the view taken by the High Court of Kerala, which had held to the contrary that the CJM is equally competent to entertain application filed by the secured creditor under Section 14 of the 2002 Act. This decision of the Single Judge was carried in ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; the Securities and Exchange Board of India Act, 1992; and which are not inconsistent with the definition given in the 2002 Act. It also noted that the authority referred to in Section 14 is not expected to undertake adjudication of rights of the concerned parties. It then noted Section 34 and 35 of the 2002 Act and went on to observe as follows: 20. From the perusal of the above Section 35, it is evident that the provisions of SARFAESI Act, 2002, shall have the effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Thus, the SARFAESI Act will override other laws including the provisions of Crl. P.C. Section 36 of the Act deals with limitation. The limitation question can be raised after passing an order under Section 13(4), if the claim in respect of the financial asset is not made within the period of limitation prescribed under the Limitation Act. Thus, the applicability of Limitation Act, 1963, is permitted under Section 36, however, as per Section 35, the application of Crl. P.C. is not permitted. In this backdrop the Full Bench examined the decision of the Division Bench of the same H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Magistrate will automatically get the powers to assist the Secured Creditors. If such an interpretation is accepted, the phraseology used in Section 14 that Chief Metropolitan Magistrate or District Magistrate will have no meaning. 29. To buttress the above view, the Full Bench agreed with the decisions of the High Court of Bombay in IndusInd Bank Ltd. (supra), Arjun Urban Cooperative Bank Ltd. (supra). It also relied on the decision of the High Court of Calcutta, which took similar view as commended to the Full Bench. The Full Bench then noted the decisions of this Court in Official Liquidator Uttar Pradesh and Uttarakhand Vs. Allahabad Bank and Others (2013) 4 SCC 381, Sri Nasiruddin (supra), Bhudan Singh and Another (supra), K.P. Varghese (supra), Atma Ram Mittal (supra), Indian Administrative Service (S.C.S.) Association, U.P. and Others Vs. Union of India (1993) Supp. 1 SCC 730, Nasiruddin and Others Vs. Sita Ram Agarwal (2003) 2 SCC 577, High Court of Gujarat and Another Vs. Gujarat Kishan Mazdoor Panchayat and Others (2003) 4 SCC 712, Prakash Kumar Alias Prakash Bhutto Vs. State of Gujarat (2005) 2 SCC 409 and New India Assurance Company Ltd. Vs. Nusli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is void and non est and as such, any consequential action taken on the basis of the said order falls to the ground. (See Chief Justice of A.P. Vs L.V.A. Dixitulu MANU/SC/0416/1978 : (1979) 2 SCC 34, A. Jithendernath Vs Jubilee Hills Cooperative House Building Society MANU/SC/8138/2006 : (2006) 10 SCC 96, Ashok Leyland Ltd. Vs State of Tamil Nadu MANU/SC/0020/2004 : (2004) 3 SCC 1, Union of India Vs Pramod Gupta MANU/SC/0549/2005 : (2005) 12 SCC 1, National Institute of Technology Vs Niraj Kumar Singh MANU/SC/0687/2007 : (2007) 2 SCC 481, Hasham Abbas Sayyad Vs Usman Abbas Sayyad MANU/SC/5541/2006 : (2007) 2 SCC 355, Deepak Agro Foods Vs State of Rajasthan MANU/SC/7812/2008 : (2008) 7 SCC 748, Chandrabhai K. Bhoir Vs Krishna Arjun Bhoir MANU/SC/8230/2008 : (2009) 2 SCC 315 and Union of India Vs Association of Unified Telecom Service Providers of India MANU/SC/1252/2011 : (2011) 10 SCC 543. 17. Resultantly, we set aside the impugned order dated 23.07.2012 passed by the CJM, reserving liberty to the respondent bank to take recourse to the appropriate jurisdictional forum under the provisions of law. 30. The Single Judge of the Madras High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garding verification of the affidavit and the relied upon documents filed by the parties. That inquiry is required to be concluded within the stipulated time frame. While undertaking such an inquiry, as is observed by this Court, the authority must display judicious approach, in considering the relevant factual position asserted by the parties. That presupposes that it is a quasijudicial inquiry though, a nonjudicial process. The inquiry does not result in adjudication of inter se rights of the parties in respect of the subject property or of the fact that the transaction is a fraudulent one or otherwise. 34. Notably, the powers and functions of the CMM and the CJM are equivalent and similar, in relation to matters specified in the Cr.P.C.. These expressions (CMM and CJM) are interchangeable and synonymous to each other. Moreover, Section 14 of the 2002 Act does not explicitly exclude the CJM from dealing with the request of the secured creditor made thereunder. The power to be exercised under Section 14 of the 2002 Act by the concerned authority is, by its very nature, nonjudicial or State s coercive power. Furthermore, the borrower or the persons claiming through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the 2002 Act, was not expected to do any further scrutiny of the matter except to verify from the secured creditor whether notice under Section 13(2) of the Act has already been given or not and whether the secured asset is located within his jurisdiction. There is no adjudication of any kind at this stage. The Court also noticed in paragraph 23 of the reported judgment that after amendment of Section 14 of the 2002 Act, by inserting first proviso therein, the designated authority has to satisfy itself only with regard to the matters mentioned in clauses (i) to (ix). In paragraph 25 of this decision, the Court noted as follows: 25. The satisfaction of the Magistrate contemplated under the second proviso to Section 14(1) necessarily requires the Magistrate to examine the factual correctness of the assertions made in such an affidavit but not the legal niceties of the transaction. It is only after recording of his satisfaction the Magistrate can pass appropriate orders regarding taking of possession of the secured asset. The Court then went on to observe in paragraph Nos.33 and 36 of the reported judgment as follows: 33. We ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate may authorise the officer concerned to use such force as may be necessary. After the possession is taken the assets and documents will be forwarded to the secured creditor. 36.3. (iii) The third situation will be one where the secured creditor approaches the Magistrate concerned directly under Section 14 of the Act. The Magistrate will thereafter scrutinise the application as provided in Section 14, and then if satisfied, authorise a subordinate officer to take possession of the assets and documents and forward them to the secured creditor as under clause 36.2.(ii) above. 36.4. In any of the three situations above, after the possession is handed over to the secured creditor, the subsequent specified provisions of Rule 8 concerning the preservation, valuation and sale of the secured assets, and other subsequent rules from the Security Interest (Enforcement) Rules, 2002, shall apply. 37. Concededly, the Court was not called upon to consider the specific issue that arises for our consideration, in this batch of cases. To wit, whether the CJM is competent to deal with the request made by the secured creditor under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration in the present cases. 39. It is no more res integra that the CJM is equated with the CMM for the purposes referred to in the Cr.P.C.; and those expressions are used interchangeably being synonymous of each other. This Court in All India Judges Association (supra), in paragraph 31, opined as under: 31. As we have already mentioned, the Shetty Commission had recommended that the Chief Metropolitan Magistrates should be in the cadre of District Judges. In our opinion, this is neither proper nor practical. The appeals from orders passed by the Chief Metropolitan Magistrates under the provisions of the Code of Criminal Procedure are required to be heard by the Additional Sessions Judge or the Sessions Judge. If both the Additional Sessions Judge and the Chief Metropolitan Magistrate belong to the same cadre, it will be paradoxical that any appeal from one officer in the cadre should go to another officer in the same cadre. If they belong to the same cadre, as recommended by the Shetty Commission, then it would be possible that the junior officer would be acting as an Additional Sessions Judge while a senior may be holding the post of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by or under the 2002 Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. That has been ordained by Section 34 of the 2002 Act. 42. The borrowers or the persons claiming through borrowers had placed emphasis on Section 35 of the 2002 Act. The same reads thus: 35. The provisions of this Act to override other laws. The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. 43. The construction of this provision plainly indicates that the provisions of the Act will override any other law for the time being in force. The question is: does the provisions of 2002 Act override the provisions of the Cr. P.C., whereunder the functions to be discharged by the CMM are similar to that of the CJM. Further, the expressions CMM and CJM are used interchangeably in Cr.P.C. and are considered as synonymous to each other. Section 14, even if read literally, in no manner denotes that allocation of jurisdictions and powers to CMM and CJM under the Code of Criminal Proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to mention the official title of the officer at present executing the functions, or that of the officer by whom the functions are commonly executed. (2) This section applies also to all [Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the fourteenth day of January, 1887. This Court in Janardhan Vs. State of Maharashtra (1978) 2 SCC 465 was called upon to examine somewhat similar challenge. In that case, the challenge was to the search warrant issued by the Assistant Commissioner of Police in respect of offences punishable under Section 6 of the Bombay Prevention of Gambling Act, 1887. The Court repelled that challenge by relying on Section 17 of the Bombay General Clauses Act, 1886, which is pari materia to Section 17 of the General Clauses Act, 1897. The Court opined that though Section 6 of the Gambling Act specified the office of Commissioner of Police as the authorised officer, however, considering the sweep of Section 2(6) of the Bombay Police Act, 1951, which mentions that the term Commissioner of Police would include an Assistant Commissioner, went on to hold that the search warrant issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functions as can be exercised under the Act or any other law for the time being in force, which undoubtedly includes the Gambling Act which was a law in force at the time when the Police Act was passed. Apart from this the Assistant Commissioner could also perform those functions which could be assigned to him by the Commissioner under the general or special orders of the State Government. The provision for assignment of powers by the Government to the Commissioner are contained in Section 10(2) of the Police Act which runs thus: 10. (2) Every such Deputy Commissioner shall, under the orders of the Commissioner, exercise and perform any of the powers, functions and duties of the Commissioner to be exercised or performed by him under the provisions of this Act or any other law for the time being in force in accordance with the general or special orders of the State Government made in this behalf. 10. The High Court has found as a fact that there was a notification by the State Government dated March 10, 1967 by which all the Assistant Commissioners of Police including that of Nagpur were conferred powers and functions of the Commissioner of Poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 951, which provides as follows: 11. (2) An Assistant Commissioner appointed under subsection (1) shall exercise such powers and perform such duties and functions as can be exercised or performed under the provisions of this Act or any other law for the time being in force or as are assigned to him by the Commissioner under the general or special orders of the State Government. It was therefore permissible for the Assistant Commissioner of Police not only to exercise such powers and perform such duties and functions as he could, in terms, exercise or perform under the provisions of the Bombay Police Act, or any other law for the time being in force, but also the duties and functions assigned to him by the Commissioner of Police under the general or special orders of the State Government. The High Court has taken note in this connection of the State Government Order APO3463C2896( III)( E)V, dated March 10, 1967, which empowered all Commissioners of Police to assign to the Assistant Commissioners of Police working under them any of their powers, duties and functions not only under the provisions of the Bombay Police Act, 1951, but also under any ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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