[1] IN THE IN THE IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO.1333 OF 2004 CRIMINAL WRIT PETITION NO.1333 OF 2004 CRIMINAL WRIT PETITION NO.1333 OF 2004 Suresh Sham Singh, aged 35 years, Indian Inhabitant, residing at Simplex Building, 2nd Floor, Room No.C 110, Pawalla Street, Mumbai-400 004. .... Petitioner - Versus - 1. Shri A.N. Roy, Commissioner of Police, Brihan Mumbai. 2. The Sr. Inspector of Police, Dr. D.B. Marg Police Station. .... Respondents Ms Anjali Patil for the Petitioner. Shri D.S. Mhaispurkar, Addl. Public Prosecutor, for the Respondents. WITH WITH WITH CRIMINAL WRIT PETITION NO.1334 OF 2004 CRIMINAL WRIT PETITION NO.1334 OF 2004 CRIMINAL WRIT PETITION NO.1334 OF 2004 Malika Khan aged 35 years, Indian Inhabitant, residing at Simplex Building, 2nd Floor, Room No.C/25, Mumbai-400 004. .... Petitioner - Versus - 1. Shri A.N. Roy, Commissioner of Police, Brihan Mumbai. 2. The Sr. Inspector of Police, Dr. D.B. Marg Police Station. 3. State of Maharashtra .... Respondents [2] Ms Anjali Patil for the Petitioner. Shri D.S. Mhaispurkar, Addl. Public Prosecutor, for the Respondents. CRIMINAL WRIT PETITION NO.1335 OF 2004 CRIMINAL WRIT PETITION NO.1335 OF 2004 CRIMINAL WRIT PETITION NO.1335 OF 2004 A.A.R. Malik, aged 35 years, Indian Inhabitant, residing at Simplex Building, 2nd Floor, Room No.C/11, Mumbai-400 004. .... Petitioner - Versus - 1. Shri A.N. Roy, Commissioner of Police, Brihan Mumbai. 2. The Sr. Inspector of Police, Dr. D.B. Marg Police Station. .... Respondents Ms Anjali Patil for the Petitioner. Shri D.S. Mhaispurkar, Addl. Public Prosecutor, for the Respondents. CRIMINAL WRIT PETITION NO.1344 OF 2004 CRIMINAL WRIT PETITION NO.1344 OF 2004 CRIMINAL WRIT PETITION NO.1344 OF 2004 Smt. Rajanigandha alias Rita Singh, an Indian Inhabitant of Mumbai, aged about 45 years, occupation housewife, residing at Flat No.103, 1st floor, Mulitola Building, Opp: McDonald’s Restaurant, Linking Road, Khar (W), Mumbai-400 052. .... Petitioner - Versus - 1. State of Maharashtra 2. Commissioner of Police, Greater Bombay, Police Headquarters, Crawford Market, Mumbai-400 002. .... Respondents [3] Shri A.R. Pande for the Petitioner. Shri D.S. Mhaispurkar, Addl. Public Prosecutor, for the Respondents. CRIMINAL WRIT PETITION NO.1350 OF 2004 CRIMINAL WRIT PETITION NO.1350 OF 2004 CRIMINAL WRIT PETITION NO.1350 OF 2004 A. Nayak, aged 60 years, Indian Inhabitant, residing at Simplex Bldg., 3rd Floor, R.No.D/9, Mumbai-400 004. .... Petitioner - Versus - 1. The State of Maharashtra 2. Shri A.N. Roy, Commissioner of Police, Brihan Mumbai. 3. The Sr. P.I., Dr. D.B. Marg P.Stn. .... Respondents Ms Anjali Patil for the Petitioner. Shri Bharat Mehta, Addl. Public Prosecutor, for the Respondents. CRIMINAL WRIT PETITION NO.1619 OF 2004 CRIMINAL WRIT PETITION NO.1619 OF 2004 CRIMINAL WRIT PETITION NO.1619 OF 2004 1. Smt. Raji Swamy Shetty, aged 40 years 2. Smt. Latarani Babu Nadawala, aged 35 years Both House Hold ladies Hindu Adult Indian Inhabitant of Mumbai residing at Room No.C/1, Simplex Building, 2nd Floor, Pavwala Road, Mumbai-400 004. .... Petitioners - Versus - 1. The State of Maharashtra [4] 2. Commissioner of Police, Gr. Bombay, District Magistrate appointed under PITA, Opp: M.G. Phule Market, Fort, Mumbai-400 001. 3. Sr. Inspector of Police, D.B. Marg Police, Mumbai-400 007. .... Respondents Shri O.R. Tiwari for the Petitioners. Shri Bharat Mehta, Addl. Public Prosecutor, for the Respondents. CRIMINAL WRIT PETITION NO.1638 OF 2004 CRIMINAL WRIT PETITION NO.1638 OF 2004 CRIMINAL WRIT PETITION NO.1638 OF 2004 Nagi Gaurangi Gauda, an Indian Inhabitant of Mumbai, aged about 40 years, residing at Damodar Building, oom No.3, 1st Floor, Navalkar Lane, Mumbai-400 004. .... Petitioner - Versus - 1. State of Maharashtra 2. Commissioner of Police, Greater Bombay, Police Headquarters, Crawford Market, Mumbai-400 002. .... Respondents Shri A.R. Pande for the Petitioner. Shri Bharat Mehta, Addl. Public Prosecutor, for the Respondents. CRIMINAL WRIT PETITION NO.1716 OF 2004 CRIMINAL WRIT PETITION NO.1716 OF 2004 CRIMINAL WRIT PETITION NO.1716 OF 2004 Sessappa M. Pujary an Indian Adult, residing at Kembuda Palke House, Shirtady Village, Mangalore Tq. Age: 45 years. .... Petitioner [5] - Versus - 1. State of Maharashtra 2. Commissioner of Police, Greater Bombay, Police Headquarters, Crawford Market, Mumbai-400 002. .... Respondents Shri A.S. Jondhale for the Petitioner. Shri D.S. Mhaispurkar, Addl. Public Prosecutor, for the Respondents. CRIMINAL WRIT PETITION NO.1800 OF 2004 CRIMINAL WRIT PETITION NO.1800 OF 2004 CRIMINAL WRIT PETITION NO.1800 OF 2004 Smt. Reshma Ravindra Dolas, Adult, Indian Inhabitant, aged about 42 years, having her address of residence at Adarsh Nagar Tenements, Room No.1076, New Link Road, Behind Mastakar Petrol Pump, Oshiwara, Mumbai-400 102. .... Petitioner - Versus - 1. State of Maharashtra 2. A.N. Roy, Commissioner of Police, City of Mumbai. .... Respondents Sarvasri S. Shrimani with M.G. Gawde for the Petitioner. Shri Bharat Mehta, Addl. Public Prosecutor, for the Respondents. CRIMINAL WRIT PETITION NO.2681 OF 2004 CRIMINAL WRIT PETITION NO.2681 OF 2004 CRIMINAL WRIT PETITION NO.2681 OF 2004 Smt. Bhagirathi V. Shetty, Aged 67 years, Indian Inhabitant, residing at Room No.C/6, 2nd Floor, Simplex Building, Pavwala Street, Grant Road, [6] Mumbai-400 004. .... Petitioner - Versus - 1. Shri A.N. Roy, Commissioner of Police, Greater Mumbai, Opp: Crawford Market, Mumbai-400 001. 2. The Senior Inspector of Police, D.B. Marg Police Station, Mumbai-400 007. 3. State of Maharashtra .... Respondents Shri B.A. D’Lima i/b M/s. D’Lima & Associates for the Petitioner. Shri Bharat Mehta, Addl. Public Prosecutor, for the Respondents. CRIMINAL WRIT PETITION NO.2682 OF 2004 CRIMINAL WRIT PETITION NO.2682 OF 2004 CRIMINAL WRIT PETITION NO.2682 OF 2004 1. Baby Bangera, Aged 55 years, Indian Inhabitant residing at Jamna Mansion, 2nd Floor, Room No.B/16, Khetwadi, 14th Lane, Khetwadi, Mumbai-400 004. 2. Sunita N. Pujari, Aged 50 years, Indian Inhabitant residing at Jamna Mansion, 2nd Floor, Room No.B/16, Khetwadi, 14th Lane, Khetwadi, Mumbai-400 004. .... Petitioners - Versus - 1. Shri A.N. Roy, Commissioner of Police, Greater Mumbai, Opp: Crawford Market, Mumbai-400 001. 2. The Senior Inspector of Police, D.B. Marg Police Station, Mumbai-400 007. [7] 3. State of Maharashtra .... Respondents Shri B.A. D’Lima i/b M/s. D’Lima & Associates for the Petitioners. Shri Bharat Mehta, Addl. Public Prosecutor, for the Respondents. CRIMINAL WRIT PETITION NO.2683 OF 2004 CRIMINAL WRIT PETITION NO.2683 OF 2004 CRIMINAL WRIT PETITION NO.2683 OF 2004 1. Ganga M. Pujari @ Nayak Aged 50 years, Indian Inhabitant residing at Jamna Mansion, 3rd Floor, Room No.A/20, Khetwadi, 14th Lane, Khetwadi, Mumbai-400 004. 2. R.D. Kamble nee Pujari, Aged 35 years, Indian Inhabitant residing at Jamna Mansion, 3rd Floor, Room No.A/20, Khetwadi, 14th Lane, Khetwadi, Mumbai-400 004. .... Petitioners - Versus - 1. Shri A.N. Roy, Commissioner of Police, Greater Mumbai, Opp: Crawford Market, Mumbai-400 001. 2. The Senior Inspector of Police, D.B. Marg Police Station, Mumbai-400 007. 3. State of Maharashtra .... Respondents Shri B.A. D’Lima i/b M/s. D’Lima & Associates for the Petitioners. Shri Bharat Mehta, Addl. Public Prosecutor, for the Respondents. AND AND AND [8] CRIMINAL WRIT PETITION NO.2685 OF 2004 CRIMINAL WRIT PETITION NO.2685 OF 2004 CRIMINAL WRIT PETITION NO.2685 OF 2004 Ammani Gopal Poojari Adult, 40 years, R.No.B/9, Khetwadi 14th Lane, Jamna Mension Bulding, Grant Road (E), Mumbai-400 004. .... Petitioner - Versus - 1. The State of Maharashtra 2. Shri A.N. Roy, Commissioner of Police, Greater Bombay. 3. Sr. Inspector of Police (D.B.Marg Police Station) .... Respondents Shri Sandeep C. Kekane for the Petitioner. Shri Bharat Mehta, Addl. Public Prosecutor, for the Respondents. CORAM: CORAM: CORAM: R.M.S. KHANDEPARKAR & P.V. KAKADE, JJ. DATED: DATED: DATED: MAY 06, 2005 JUDGMENT (Per R.M.S.Khandeparkar, J.): JUDGMENT (Per R.M.S.Khandeparkar, J.): JUDGMENT (Per R.M.S.Khandeparkar, J.): 1. In all these petitions, common questions of law and facts arise and therefore they were heard together and are being disposed of by this common judgment. Upon hearing at length the learned Advocates for the parties, rule in all the petitions and by consent, the rule is made returnable forthwith. 2. Though the orders issued under Section 18 of the [9] Immoral Traffic (Prevention) Act, 1956, hereinafter called as "the said Act" are sought to be challenged on various grounds, it is not necessary to refer to all those grounds and suffice to refer to only one ground which relates to absence of power to the Commissioner of Police to issue orders under Section 18 of the said Act in the capacity as the District Magistrate. 3. In all these petitions, notices have been issued under Section 18 of the said Act either for eviction of the occupiers or for imposing conditions for letting out the premises wherein the brothel was alleged to have been run and all those notices have been, admittedly, issued by the Police Commissioner of Mumbai purportedly in exercise of powers of the District Magistrate under the said Act r/w the provisions of Section 20 of the Code of Criminal Procedure, 1973, hereinafter called as "the Code". The contention of the petitioners is that though the Police Commissioner can be conferred with the powers of the Executive Magistrate in terms of the provisions of Section 20(5) of the Code, he cannot either be appointed as the District Magistrate or conferred with the powers of the District Magistrate and therefore he cannot act as or perform the functions of the District Magistrate under the said Act. Therefore, according to the learned Advocate for the petitioners, the notices issued by the Police Commissioner in [10] purported exercise of the powers of the District Magistrate under the said Act are without jurisdiction and therefore bad in law and cannot be enforced and therefore needs to be quashed and set aside. In other words, the contention of the petitioners is that the Police Commissioner in the purported exercise of the powers of the District Magistrate can neither issue any show cause notice nor can pass any order under Section 18 of the said Act. 4. On the other hand, it is the case of the respondents that the Police Commissioner has been duly conferred with the powers of the District Magistrate as being within the metropolitan area of Brihanmumbai for the purpose of exercising the functions under Section 18 of the said Act and Section 20 of the Code and such powers have been conferred in terms of Section 20(1) and (2) r/w sub-section (5) of the Code vide the Notification dated 1st October, 99. According to the learned A.P.P., no fault can be found with the impugned orders on the alleged ground of absence of jurisdiction to the Commissioner of Police to exercise the powers of the District Magistrate under the said Act. Reliance is sought to be placed in that regard in the decision of the Apex Court in the matter of State of Maharashtra and State of Maharashtra and State of Maharashtra and others v. Mohammed Salim Khan and others, others v. Mohammed Salim Khan and others, others v. Mohammed Salim Khan and others, reported in 1991 SCC (Cri.) 253. [11] 5. The Section 18 of the said Act empowers a Magistrate to order eviction of all the occupiers of a premises used as a brothel or for carrying on prostitution and further to impose conditions of requirement of prior approval of the Magistrate in case the owner desires to let out the premises after the premises having been found to have been used as a brothel or for carrying on prostitution. The term "Magistrate" has been defined in Section 2(c) of the said Act to mean a Magistrate specified in the second column of the Schedule as being competent to exercise the powers conferred by the section in which the expression occurs and which is specified in the first column of the Schedule. The Schedule to the said Act discloses that in relation to Section 18 of the said Act, a Magistrate who is competent to exercise the powers is either the District Magistrate or the Sub-Divisional Magistrate. 6. The Chapter II of the Code relates to constitution of criminal Courts and offices in every State in India. The Section 6 thereof enumerates the classes of criminal Courts and under Clause (iv), it enlists the Court of the Executive Magistrate. The Section 20 thereof deals with the powers of the State Government to appoint Executive Magistrates and District Magistrate. It reads thus:- [12] "(1) In every district and in every metropolitan area, the State Government may appoint as many person 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. [13] (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 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." 7. As already stated above, Section 18 of the said Act r/w Section 2(c) and the Schedule to the said Act would reveal that the powers under Section 18 are essentially to be exercised either by the District Magistrate or the Sub-Divisional Magistrate. It is pertinent to note that the said Act nowhere speaks of creation of office of the District Magistrate or the Sub-Divisional Magistrate under the said Act. Obviously, therefore, reference to the office of the District Magistrate under the said Act is to the District Magistrate appointed under the Code. [14] 8. The Section 20 of the Code evidently discloses that the State Government is empowered to appoint any person as it deems fit to be the Executive Magistrate. The State Government is further empowered under sub-section (1) itself to appoint any one of the Executive Magistrates so appointed in exercise of the powers under sub-Section (1) of Section 20 to be the District Magistrate. The State Government is also empowered to appoint any of the Executive Magistrate to be the Additional District Magistrate and the Magistrate so appointed is empowered to have such powers of the District Magistrate under the Code or under any other law as may be directed by the State Government. The sub-section (2) is very clear in that regard. Three conclusions follow from sub-section (1) and sub-section (2) of Section 20 of the Code and they are (i) the Government may appoint any one person as it deems fit to be the Executive Magistrate; (ii) any one of the Executive Magistrates can be appointed as a District Magistrate and any other Executive Magistrate to be the Additional District Magistrate, and (iii) the Additional District Magistrate can exercise the powers of the District Magistrate to the extent he is conferred with those powers by the State Government. It is therefore evident that merely because an Executive Magistrate is appointed as an Additional District Magistrate, he does [15] not acquire the powers of the District Magistrate. On the contrary, his powers are restricted to the extent they are conferred upon him by the Government. He cannot by virtue of his office as an Additional District Magistrate assume the powers of the District Magistrate. 9. Under the sub-section (5) of Section 20 of the Code, the State Government is empowered to confer upon the Commissioner of Police in a metropolitan area all or any of the powers of an Executive Magistrate. Plain reading of sub-section (5) of Section 20 of the Code, therefore, would reveal that as far as the Police Commissioner in the metropolitan area is concerned, the Government is undoubtedly empowered to confer upon him all or any of the powers of an Executive Magistrate. It is pertinent to note that while sub-section (1) of Section 20 speaks of the Government’s powers to appoint any person of its choice to be an Executive Magistrate, under the sub-section (5) thereof the Government is empowered merely to confer the powers of an Executive Magistrate upon the Commissioner of Police when it relates to a metropolitan area. In other words, the sub-section (5) would come into play or would be applicable only to metropolitan areas. In such areas the Government would be entitled to confer upon the Commissioner of Police all or any of the powers of an Executive Magistrate. But the provisions of law comprised under Section 20 [16] nowhere speaks of appointment of a Commissioner of Police either in the metropolitan area or otherwise to be an Executive Magistrate. 10. The contention on behalf of the respondents is that the sub-section (1) itself gives wide powers to the Government to appoint any person as an Executive Magistrate and therefore even the Commissioner of Police can be appointed as the Executive Magistrate while sub-section (5) would relate only to metropolitan areas wherein it is specifically stated that the Government can confer the powers of an Executive Magistrate upon the Commissioner of Police, but that would not put an embargo on the powers of the Government to appoint a Commissioner of Police as an Executive Magistrate by taking recourse to sub-section (1) of Section 20 of the Code. It is difficult to accept this contention. 11. 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 [17] 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-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 upon 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. 12. In Mohammed Salim Khan’s Mohammed Salim Khan’s Mohammed Salim Khan’s case (supra), this Court while considering Section 21 of the Code had held that a Special Executive Magistrate is not entitled to exercise [18] the powers of an Executive Magistrate and cannot also be conferred with the powers of an Executive Magistrate under Section 107 of the Code. When the matter was carried in the appeal, while analysing Section 21, the Apex Court held that the said Section can be conveniently divided into two parts. The first part relates to the power of the State Government to appoint for such term as it may think fit Executive Magistrates to be known as Special Executive Magistrates for particular areas for the performance of particular function. The second part relates to the power of the State Government to confer on the Special Executive Magistrate such powers as are conferable under the Code on the Executive Magistrate as it may deem fit. Thus while the first part provides for powers to the State Government to appoint an Executive Magistrate to be known as Special Executive Magistrate on such terms as it deems fit, the second part speaks of the nature of the power to be conferred on the Special Executive Magistrate. Further, the Apex Court ruled that:- "A careful analysis of the section indicates very clearly that the Special Executive Magistrates are also Executive Magistrates. Under Part I of the section, the State appoints Executive Magistrates to be known as Special [19] Executive Magistrates. ...... Since they are appointed as Executive Magistrates, they are entitled to exercise the powers conferred by the Code much the same way as other Executive Magistrates. ...... But the power to appoint under Part I of Section 21 is not dependent upon or coupled with the power to be conferred under Part II of the section. The appointment of The appointment of The appointment of Special Executive Magistrate is one Special Executive Magistrate is one Special Executive Magistrate is one thing and conferment of power on them is thing and conferment of power on them is thing and conferment of power on them is another. Each is independent of the another. Each is independent of the another. Each is independent of the other. other. other." (emphasis supplied) Once it is apparent that the appointment of a person in the office is different from conferment of the powers of the said office, the distinction between the powers of the State Government under sub-section (1) and those under the sub-section (5) of Section 20 becomes crystal clear. While the sub-section (1) speaks of appointment of a person as an Executive Magistrate, the sub-section (5) speaks of conferment of powers of the office of Executive Magistrate. These are apparently two different things and the decision in Mohammed Salim Khan’s case clearly lends support to this view. [20] 13. The discussion on the point in issue will be incomplete without reference to two earlier decisions of the Apex Court, one in the matter of Ajaib Singh v. Ajaib Singh v. Ajaib Singh v. Gurbachan Singh and others, Gurbachan Singh and others, Gurbachan Singh and others, reported in AIR 1965 SC 1619 and another in Hari Chand Aggarwal v. The Batala Hari Chand Aggarwal v. The Batala Hari Chand Aggarwal v. The Batala Engineering Co. Ltd. and others, Engineering Co. Ltd. and others, Engineering Co. Ltd. and others, reported in AIR 1969 SC 483. 14. In Ajaib Singh’s Ajaib Singh’s Ajaib Singh’s case (supra), the Apex Court while dealing with the question as to whether the powers of the District Magistrate under a statute can be exercised by an Additional District Magistrate or any other Magistrate below the rank of the District Magistrate, and specifically referring to Section 10 of the Criminal Procedure Code, 1898, hereinafter called as "the Old Code" and which section corresponds to Section 20 of the Code, held that:- "even if an Additional District Magistrate has been appointed with all the powers under the Code and also under any other law for the time being in force, he is still not the District Magistrate unless the Government appoints him as such under Section 10(1) of the Code. ...... even if an officer [21] is exercising the powers of the District Magistrate on there being a vacancy in the office of the District Magistrate he is still not the District Magistrate until he is appointed as such under S.10(1) of the Code." Further dealing with the question as to whether an Additional District Magistrate can be said to be of the same rank as the District Magistrate, the Apex Court held that:- "S.10(2) of the Code which shows that an Additional District