Holding

The State Government may appoint the Commissioner of Police as an Executive Magistrate under Section 20(1) and subsequently as an Additional District Magistrate under Section 20(2), thereby lawfully conferring the powers of a District Magistrate for the purposes of sections 18 and 20 of the Immoral Traffic (Prevention) Act, 1956.

Summary

The State of Maharashtra issued a 1999 notification conferring on the Commissioner of Police, Brihan Bombay, the powers of a District Magistrate for purposes of sections 18 and 20 of the Immoral Traffic (Prevention) Act, 1956, to enable raids and evictions of brothels. The High Court struck down the notification as ultra vires, quashing an eviction order against the respondent. On appeal, the Supreme Court examined Section 20 of the Code of Criminal Procedure, which allows a State to appoint any person as an Executive Magistrate and, subsequently, as an Additional District Magistrate with the powers of a District Magistrate. The Court held that the phrase "as many persons" includes the Police Commissioner, and that sub‑section (5) does not preclude his appointment as an Executive Magistrate. Consequently, the State may first appoint the Commissioner as an Executive Magistrate and then as an Additional District Magistrate, thereby validly conferring the required powers. The Court directed the State to make the appointments and restored the status quo ante pending such appointment, partially allowing the appeals.

Issues considered

Whether the State Government, under Section 20 of the CrPC, can appoint the Commissioner of Police as an Executive Magistrate and thereafter as an Additional District Magistrate with the powers of a District Magistrate for the purposes of sections 18 and 20 of the Immoral Traffic (Prevention) Act, 1956.
Whether the 1999 notification conferring such powers on the Commissioner of Police is constitutionally and statutorily valid.

Legislation cited

Code of Criminal Procedure, 1973s. 20(1), s. 20(2), s. 20(5)
Immoral Traffic (Prevention) Act, 1956s. 18, s. 20

Subjects

Immoral Traffic (Prevention) ActCrPC Section 20Executive MagistrateAdditional District MagistratePolice CommissionerStatutory interpretationLiteral constructionBrothel evictionHuman trafficking

Judgment

A.N. ROY, COMMISSIONER OF POLICE AND ANR. A
V.

SURESH SHAM SINGH

JULY 4, 2006

[H.K. SEMA AND A.K. MATHUR, JJ.] B

Immoral Traffic (Prevention) Act, 1956-Sections 18 and 20-Prevention
of immoral traffic-Dispute regarding power of State Government to confer
on Police Commissioner of a metropolitan area the powers of District C
Magistrate for purposes ofss. 18 and 20-Held: Person appointed as Executive
Magistrate can only be appointed as Additional District Magistrate or District
Magistrate-State Government directed to first appoint the Police Commissioner
as Executive Magistrate and then further appoint him as Additional District
Magistrate having powers of the District Magistrate for purposes of ss. 18 and
20-Code of Criminal Procedure, 1973-Section 20. D
Interpretation of Statutes-Literal construction-Plain meaning-Held:
Courts not to enlarge the scope of legislation or intention when language of
the statute is plain and unambiguous.

With a view to check the alarming rise in trafficking of minor girls E
and women in the Metropolitan city of Bombay, the State of Maharashtra
in exercise of powers conferred by sub-section (5) read with sub-sections
(1) and (2) of Section 20 CrPC, issued a Notification in 1999 conferring
on the Police Commissioner of the metropolitan area of Brihan Bombay,
the powers of District Magistrate for the purposes of Sections 18 and 20
of the Immoral Traffic (Prevention) Act, 1956. Pursuant thereto, the Police F
Commissioner conducted raids and ordered eviction or closure of brothels.
On 28-06-2004, an eviction order was passed against the Respondent who
filed writ petition challenging the same. High Court set aside the said
eviction order holding that the Notification was ab initio bad in law and
did not empower the Police Commissioner to assume the jurisdiction of G
District Magistrate for the purposes of Sections 18 and 20 of the 1956 Act.
Hence the present appeals.

Partly allowing the appeals, the Court

HELD: 1.1. Sub-section (1) of Section 20 CrPC deals with the power
1~ H
166 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A 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
B Magistrate under the CrPC or under any other law for the time being in
force as may be directed by the State Government. Thus, unless a person
is appointed as an Executive Ma1:istrate he cannot be appointed as either
an Additional District Magistrat1e or the District Magistrate.
(173-H; 174-A, BJ

C 1.2. The words, "as many persons" employed in sub-section (I) 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. Once the
Commissioner of Police is appointed as an Executive Magistrate in the
metropolitan area of Brihan Bombay, he can be appointed as an Additional
D District Magistrate, who shall have the powers of the District Magistrate
for the purposes of Sections 18 and! 20 of the 1956 Act. This view 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
E of the powers of an Executive Magistrate in relation to a metropolitan
area. (174-D, E]

2. 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
p 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
G constructions. (174-F, GI

Anwar Hasan Khan v. Mohd. Shafi and Ors., (2001 [ 8 SCC 540,
referred to.

3. Reading sub-sections (1), (2) and (5) of Section 20 in conjunction,
H it is clear that the State has power to appoint the Commissioner of Police
A.N. ROY, COMMR. OF POLICE v. SURESH SHAM SINGH [HK SEMA, J.J 167

of Brihan Bombay as an Executive Magistrate and further appoint him A
as an Additional District Magistrate, who shall have the powers of District
Magistrate for the purposes of Sections 18 and 20 of the 1956 Act.
(175-B, C(

4.1. The State Government shall now appoint the Commissioner of
Police as an Executive Magistrate in Brihan Bombay and shall further B
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 1956 Act. (175-C, DJ

4.2. 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 C
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.
(175-D, E)
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 702
of 2006.

From the Judgment and Order dated 6.5.2005 of the High Court of
Judicature at Bombay in Cr!. W.P. No. 1333/2004.
E
WITH

Criminal Appeal Nos. 703, 704, 705, 706, 707, 708, 709, 710, 711,
712, 713, 714 of2006.

U.U. Lalit, A.P. Mayee, Sanjeev Kumar Choudhary and V.N. F
Raghupathy for the Appellants.

S.K. Dubey, Shakil Ahmed Syed, Sushi! Karanjkar, K.N. Rai, Shrish
Kumar Misra, Ashok R. Pandey, V.P. Singh, Niraj Shanna, D. Lima, Chandra
Mohan Anisetty, Vikrant Singh Bais, Samrat Nigam and Siddhartha
Chowdhary for the Respondent. G
The Judgment of the Court was delivered by

H.K. SEMA, J. Leave granted.

The challenge in these batches of appeals is to the order dated 6.5.2005 H
168 SUPREME COURT REPORTS (2006) SUPP. 3 S.C.R.

A 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:-

B The Parliament enacted the Immoral Traffic (Prevention) Act, 1956
(hereinafter referred to as the A.ct). Statement of objects and reasons is as
follows:-

(I) Jn 1950 the Government of India ratified an International
Convention for the Suppression of Immoral Traffic in Persons
c 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.

D (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
E 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
F 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
G 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 (I) and (2) of Section 20 of the Code of Criminal Procedure, 1973
(hereinafter referred to as the Cod,e) and of all other powers enabling it in
H that behalf.
AN. ROY, COMMR OF POLICh. SURESH SHAM SINGH [HK SEMA, l.l J69

The powers so conferred on the Commissioner of Police, Brihan A
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 B
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 C
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 D
28.6.2004 of the Commissioner of Police and held that the Notification dated
I.I 0.1999 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.
E
We have heard the parties at length.

The whole controversy boils down to this issue, as to whether the
Notification dated I. I 0.1999 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? F
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:- G
"In exercise of the powers conferred by sub-section (5) read with
sub-sections (I) 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 H
170 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A 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 (I 04 of 1956)."

From the Notification, it clearly appears that the State of Maharashtra
B 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.-(!) In every district and in every
c 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
D (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
E 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
F 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 law for the time being in force, on a
G 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
H it thinks fit to be Executive Magistrates and to appoint one of them to be the
A.N. ROY, COMMR. OF POLICE v. SURESH SHAM SINGH [H.K. SEMA, J.] 171

District Magistrate. The second part empowers the State Government to appoint A
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 B
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
c
for the appellants, is that the State Government issued a Notification in exercise
of Powers under sub-section (5) read with sub-sections (I) and (2) of Section
20. Therefore, the provisions of sub-sections (I) 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 (I) and (2) D
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 (I)
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 E
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
C~mmissioner 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 F
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 (I) 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 G
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 H
172 SUPREME COURT REPORTS [2006) SUPP. 3 S.C.R.

A (I) 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 (I). Otherwise, there was
absolutely no need of incorporating a specific provision under sub-
B section (5) in relation to Commissioner of Police. Otherwise, even in
the absence of sub-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 (I) while reserving the power to the State
c 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
D Executive Magistrate. The appointment of a person in an office is
different from the confennent 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.
E 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 (I) and (2) of Section 20 of the Code to confer
upon the Commissioner of !Police the powers of the District Magistrate
F
within the metropolitan arna 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
G metropolitan area or otherwise. On the contrary, sub-section (I)
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 am Executive Magistrate. The Notification
H
A.N. ROY, COMMR. OF POLICE v. SURESH SHAM SINGH [H.K. SEMA, J ] J73
no where discloses either conferment of the powers of the Executive A
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, B
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 District Magistrate can C
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.
D
(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. E
(v) The State Government's power to appoint any person as an
Executive Magistrate in terms of the provisions of law under sub-
section (I) of Section 20 of the Code does not include the power to
appoint the Commissioner of Police as an Executive Magistrate.
F
(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 (I) of
Section 20 of the Code.
G
(vii) The District Magistrate, Additional District Magistrate and the
Executive Magistrate are three different offices.

We have already noticed the provisions of sub-section (I) and (2) of
Section 20 of the Code. Sub-section (I) deals with the power of the State
Government to appoint Executive Magistrates as many persons as it thinks fit H
174 SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A 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 Additionail 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 forcie as may be directed by the State Government.
We agree with the view of th•: High Court that unless a person is appointed
B 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.
.~

C Under sub-section (I) 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 (I) are adequately 1:lastic to include the Commissioner of Police.
In other words, the State Gove:rnment is not precluded from appointing the
D 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
E 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:
F
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
G 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
H
AN. ROY, COMMR OF POLICE r. SURESH SHAM SINGH [H.K. SEMA, l] 175
Court held: (SCC p. 543 para 8) A
"8 .... .lt 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 whQle and one provision should be
construed with reference to the other provision to mak~ the provision B
consistent with the object sought to be achieved ...."

Reading sub-sections(!), (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 C
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 D
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 E
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 F
of the order.

B.B.B. Appeals partly allowed.