The State of Maharashtra Vs. Vishnu
Ramchandra [1960] INSC 173 (18 October 1960)
18/10/1960 HIDAYATULLAH, M.
HIDAYATULLAH, M.
SHAH, J.C.
CITATION: 1961 AIR 307 1961 SCR (2) 26
CITATOR INFO :
RF 1964 SC 464 (13) RF 1973 SC1227 (54)
ACT:
Internment--Order, if can relate to
antecedents of convicted offenders--Statute, if Prospective or
retrospective--Bombay Police Act, 1951 (22 of 1951), SS. 57(1), 142--Indian
Penal Code, SS. 114, 380, 411.
HEADNOTE:
On November 16, 1949, the respondent was
convicted under ss. 38o and II4 of the Indian Penal Code. On October 5, 1957,
the Deputy Commissioner of Police, Bombay, acting under s. 57(1) of the Bombay
Police Act passed an order extending him from the limits of Greater Bombay.
Later he was prosecuted and convicted under s. 142 of the Bombay Police Act by
the Presidency Magistrate for returning to the area from which he was external.
On an application for revision the High Court acquitted the respondent
upholding his contention that S. 57 of the Bombay Police Act was not
retrospective and was not applicable unless the conviction on which the internment
was based took place after the Act came into force. On appeal by the appellant
with the special leave of this Court it was 27 Held, that though statutes must
ordinarily be interpreted prospectively unless the language makes them
retrospective, either expressly or by necessary implication, and penal statutes
creating new offences are always prospective, penal statutes creating
disabilities though ordinarily interpreted prospectively are sometimes
interpreted retrospectively when the intention is not to punish but to protect
the public from undesirable persons whose past conduct is made the basis of
future action.
Midland Ry. Co. v. Pye, IO C.B. (N.S.) 179,
Rex v. Birthwhistle, (1889) 58 L.J. (N.S.) M.C. 158, Queen v. Vine, [1875] IO
Q.B. 195, Ex Parte Pratt, [1884] 12 Q.B. 334, Bourke v. Nutt, [1898] I Q.B.
725, Ganesan v. A.K. Joscelyne, A.I.R. 1957 Cal. 33, Taher Saifuddin v.
Tyebbhai Moosaji, A.I.R. 1953 Bom. 183, The Queen v. Inhabitants of St. Mary
Whitechapel, [1848] 12 Q.B. 120 (E) : 116 E.R. 811 and Rex v. Austin, [1913] 1
K.B. 551, considered and applied.
Section 57 of the Bombay Police Act did not
create a new offence but was designed to protect the public from the activities
of undesirable persons convicted of particular offences and enabled the
authorities to take note of their activities in order to put them outside the
areas of their activities for preventing any repetition of such activities in
the future.
The verb " has been " as used in S.
57 meant " shall have been Legislation which takes note of a convicted
offender's antecedents for restraining him from his acts cannot be said to be
applied retrospectively as long as the action taken against him is after the
Act comes into force. The Act in question was thus not applied retrospectively
but prospectively.
An internment order must be bona fide and
must relate to a conviction which is sufficiently proximate in time.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 78 of 1959.
Appeal by special leave from the judgment and
order dated November 25, 1958, of the former Bombay High Court in Criminal
Revision Application No. 1393 of 1958 arising out of the judgment and order
dated September 18, 1958, of the Presidency Magistrate 11 Class, Mazagaon at
Bombay in Case No. 1101/P of 1958.
R. H. Dhebar, for the appellant.
The respondent did not appear.
1960. October 18. The Judgment of the Court
was delivered by 28 HIDAYATULLAH J.-This is an appeal by the State of Bombay,
with the special leave of this Court, against the order of acquittal by the
High Court of Bombay of the respondent, Vishnu Ramchandra, who was prosecuted
under s. 142 of the Bombay Police Act and sentenced to six months' rigorous imprisonment
by the Presidency Magistrate, 2nd Court, Mazagaon, Bombay.
On November 16, 1949, Vishnu Ramehandra was
convicted under s. 380 and 114 of the Indian Penal Code, and sentenced to one
month's rigorous imprisonment. On October 15, 1957, the Deputy 'Commissioner of
Police, Bombay, acting under s. 57(a) of the Bombay Police Act (22 of 1951),
passed an order against Vishnu Ramchandra which was to operate for one year,
externing him from the limits of Greater Bombay. At that time, a prosecution
under s. 411 of the Indian Penal Code was pending against Vishnu Ramchandra,
and he was not immediately externed, to enable him to attend the case.
This prosecution came to an end on July 10,
1958, and resulted in his acquittal. Immediately afterwards, a constable took
him outside the limits of Greater Bombay, and left him there. The prosecution
case was that he returned to Greater Bombay, and was arrested at Pydhonie on
August 24, 1958. He was prosecuted under s. 142 of the Bombay Police Act. His
plea that he was forcibly brought back to Pydhonie and arrested was not
accepted by the Presidency Magistrate, and he was convicted.
He filed a revision application, which was
heard by a learned single Judge of the High Court of Bombay. Three contentions
were raised before the High Court. The first was that the Deputy Commissioner
of Police had not applied his mind to the facts of the case before making the
order of externment. The second was that s. 57 of the Bombay Police Act was
prospective, and could not be made applicable, unless the conviction on which
the action of externment was based, took place after the coming into force of
that Act.
The third was that the belief entertained by
the Deputy Commissioner that Vishnu Ramchandra was 29 likely to engage himself
in the commission of an offence similar to that for which he was prosecuted was
based on the prosecution which was then pending, and that that ground
disappeared after his acquittal. The High Court did not consider the first and
the third grounds, because it held that the second ground was good.
Section 57 of the Bombay Police Act reads as
follows:
" Removal of persons convicted of
certain offencesIf a person has been convicted(a) of an offence under Chapter
XII, XVI or XVII of the Indian Penal Code (XLV of 1860), or (b) twice of an
offence under section 9 or 23 of the Bombay Beggars Act, 1945 (Bom. XXIII of
1945,) or under the Bombay Prevention of Prostitution Act, 1923 (Bom. XI of
1923), or (c) thrice of an offence within a period of three years under section
4 or 12A of the Bombay Prevention of Gambling Act, 1887 (Bom. IV of 1887), or
under the Bombay Prohibition Act, 1949 (Bom. XXV of 1949) the Commissioner, the
District Magistrate or the Sub-Divisional Magistrate specially empowered by the
State Government in this behalf, if he has reason too believe that such person
is likely again to engage himself in the commission of an offence similar to
that for which he was convicted, may direct such person to remove himself
outside the area within the local limits of his jurisdiction, by such route and
within such time as the said officer may prescribe and not to enter or return
to the area from which he was directed to remove himself ".
In reaching his conclusion the learned single
Judge observed that the legislature had used the present participle " has
been " and not the past participle in the opening portion of the section,
and that this indicated that the section was intended to be used only where a
person was convicted subsequent to the coming into force of the Act. He further
observed that being a penal section, it had to be interpreted prospectively. He
repelled an argument of the Assistant 30 Government Pleader that s. 57 merely
re-enacted the provisions of s. 27 of the City of Bombay Police Act, 1902, and
that a liability incurred under the older Act was preserved by s. 167 of the
Bombay Police Act of 1951.
Observing further that the Deputy
Commissioner of Police at the time of the passing of the order could not be
said to have entertained a belief about the activities of Vishnu Ramchandra
based upon his conviction in the year 1949, he held that the order of
externment must be regarded as invalid for that reason and also on the ground
that the conviction was not after the coming into force of the Act.
At the hearing before us, the respondent was
not represented. We have heard Mr. Dhebar in support of the appeal, and, in our
opinion, the High Court was not right in the view it had taken of s. 57 of the
Act. The question whether an enactment is meant to operate prospectively or
retrospectively has to be decided in accordance with wellsettled principles.
The cardinal principle is that statutes must always be interpreted
prospectively, unless the language of the statutes makes them retrospective,
either expressly or by necessary implication. Penal statutes which create new
offences are always prospective, but penal statutes which create disabilities,
though ordinarily interpreted prospectively, are sometimes interpreted
retrospectively when there is a clear intendment that they are to be applied to
past events. The reason why penal statutes are so construed was stated by Erle,
C. J., in Midland Rly. Co. v. Pye (1) in the following words:
"Those whose duty it is to administer
the law very properly guard against giving to an Act of Parliament a
retrospective operation, unless the intention of the legislature that it should
be so construed is expressed in clear, plain and unambiguous language; because
it manifestly shocks one's sense of justice that an act, legal at the time of
doing it, should be made unlawful by some new enactment ".
This principle has now been recognised by our
Constitution and established as a Constitutional restriction on legislative
power.
(1) 10 C.B. (N.S.) 179, 191.
31 There are, however, statutes which create
Do new punishment, but authorise some action based on past conduct. To such
statutes, if expressed in language showing retrospective operation, the
principle is not applied. As Lord Coleridge, C. J., observed during the course
of arguments in Rex v. Birthwhistle (1):
" Scores of Acts are retrospective, and
may without express words be taken to be retrospective, since they are passed
to supply a cure to an existing evil." Indeed, in that case which arose
under the Married Women (Maintenance in Case of Desertion) Act, 1886, the Act
was held retrospective without express words. It was said:
" It was intended to cure an existing
evil and to afford to married women a remedy for desertion, whether such
desertion took place before the passing of the Act or not." Another
principle which also applies is that an Act designed to protect the public
against acts of a harmful character may be construed retrospectively, if the
language admits such an interpretation, even though it may equally have a
prospective meaning. In Queen v. Vine (2), which dealt with the
disqualification of persons selling spirits by retail if convicted of felony,
the Act was applied retrospectively to persons who were convicted before the
Act came into operation. Cock burn, C. J., observed:"If one could see some
reason for thinking that the intention of this enactment was merely to
aggravate the punishment for felony by imposing this disqualification in
addition, I should feel the force of Mr. Poland's argument, founded on the rule
which has obtained in putting a construction upon statutes that when they are
penal in their nature they are not to be construed retrospectively, if the
language is capable of having a prospective effect given to it and' is not
necessarily retrospective. But here the object of the enactment is not to
punish offenders, but to protect the public against public houses in which
spirits are retailed being kept by persons of doubtful character ...
On looking at the Act, the words used seem
(1) (1889) 58 L.J. (N.S.) M.C. 158.
(2) [1875] 10 Q.B. 195.
32 to import the intention to protect the
public against persons convicted in the past as well as in future; the words
are in effect equivalent to 'every convicted felon'." In the same case,
Archibald, J., expressed himself forcefully when he observed:" I quite
agree, if it were simply a penal enactment, that we ought not to give it a
retrospective operation ; but it is an enactment with regard to public and
social order, and infliction of penalties is merely collateral."
Similarly, in Ex Parte Pratt (1), which dealt with the words " a debtor
commits an act of bankruptcy " to enable the Court to make a receiving
order, Cotton, L. J., gave the words a retrospective operation, observing:-"
I think that no reliance can be placed on the words I commits' as showing that
only acts of bankruptcy committed after the Act came into operation are
intended." In the same case, the observations of Bowen, L. J., were:"
I think that the more the Act is studied the more it will be found that it is
framed in a very peculiar way. I do not mean to say that it is inartistically
framed. I think it is framed on the idea that a bankruptcy code is being
constructed, and when the present tense is used, it is used, not in relation to
time, but as the present tense of logic." Fry, L. J., added :" I
entirely agree with Bowen, L. J., as to the meaning of the present tense in the
section ; it is used, I think, to express a hypothesis, without regard to
time." In Bourke v. Nutt (2), Lord Esher, M. R., speaking of these
observations of Bowen and Fry, LL. J., observed :" ... the case seems to
show that when the present tense is used in this statute (s. 32 of the
Bankruptcy Act, 1883) the time to be considered is the time at (1) [1884] 112
Q.B. 334.
(2) [1894] I Q.B. 725.
33 which the Court has to act, and not the
time at which the condition of things on which it has to act came into
existence." Applying the above principles, Lord Esher, M. R., held that
the section was not retrospective but prospective, because the important time
was that at which it had to be considered whether the person was disqualified
and it related to a time after the passing of the Act. He, however, added that
" even if it could be said that it is retrospective its enactments are
solely for the public benefit, and the rule that restricts the operation of a
penal retrospective statute does not apply, because this statute is not
penal." These principles, though not unanimously expressed, have been
accepted in later cases both in England and in India.
In Ganesan v. A. K. Joscelyne (1),
Chakravarti, C. J., observed, Sarkar, J. (as he then was), concurring:" I
may state, however, that in spite of the ordinary and I might almost say
cardinal rule of construction that statutes, particularly statutes creating
liabilities, ought not to be so construed as to given them a retrospective
operation unless there is a clear provision to that effect or a necessary
intendment implied in the provisions, there is another principle on which
Courts have sometimes acted.
It has been held that where the object of an
Act is not to inflict punishment on anyone but to protect the public from
undesirable persons, bearing the stigma of a conviction or misconduct on their
character, the ordinary rule of construction need not be strictly
applied." In Taher Saifuddin v. Tyebbhai Moosaji (2), the same principles
were applied by Chagla, C. J. and Bhagwati, J.
(as he then was), and reference was made also
to The Queen v. Inhabitants of St. Mary Whitechapel (3) where Lord Denman, C.
J., in his judgment observed:" ... it was said that the operation of the
statute was confined to persons who had become widows after (1) A.1 R. 1957
Cal. 33,38.
(2) A.I.R. 1953 Bom. 183, z86, 187.
(3) [1848) 12 Q.B. 120 (B): 116 E.R. 811.
34 the Act passed, and that the presumption
against a retrospective statute being intended supported this construction; but
we have before shown that the statute is in its direct operation prospective,
as it relates to future removals only, and that it is not properly called a
retrospective statute because a part of the requisites for its action is drawn
from time antecedent to its passing." Now s. 57 of the Bombay Police Act,
1951, does not create a new offence nor makes punishable that which was not an
offence. It is designed to protect the public from the activities of
undesirable persons who have been convicted of offences of a particular kind.
The section only enables the authorities to take note of their convictions and
to put them outside the area of their activities, so that the public may be
protected against a repetition of such activities. As observed by Phillimore,
J., in Rex v. Austin (1), "No man has such a vested right in his past
crimes and their consequences as would entitle him to insist that in no future
legislation shall any regard whatever be had to his previous history." An
offender who has been punished may be restrained in hisacts and conduct by some
legislation, which takes note of his antecedents; but so long as the action
taken against him is after the Act comes into force, the statute cannot be said
to be applied retrospectively. The Act in question was thus not applied
retrospectively but prospectively.
It remains only to consider if the language
of the section bars an action based on past actions before the Act was passed.
The verb "has been" is in the present perfect tense, and may mean
either " shall have been " or " shall be ". Looking,
however, to the scheme of the enactment as a whole and particularly the other
portions of it, it is manifest that the former meaning is intended. The verb
" has been " describes past actions, and, to borrow the language of
Fry, L.J., in Ex Parte Pratt (2), " is used to express a hypothesis,
without regard to time ".
An externment order, however, to satisfy the
(1) [1913] 1 K.B. 551, 556.
(2) [1884] 12 Q.B33435 requirements of s. 57
of the Bombay Police Act, must be made bona fide, taking into account a
conviction which is sufficiently proximate in time. Since no absolute rule can
be laid down, each case must depend on its own facts.
In the result, we set aside the acquittal,
and remit the case to the High Court for disposal on the other points urged
before it and in the light of observations made here by us.
Appeal allowed.
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