Report No. 60
4.12A. Section 5(3)-time of commencement.-
We now come to section 5(3) which deals with the time of commencement. This sub-section has a history. It had been held in England1 that an Act which comes into operation on a given day becomes law as soon as the day commences, and every event which occurred during the day would be an event which took place after the passing of the Act. If the Act received the Royal assent on the 10th August, the passing of the Act would, in contemplation of law, take place immediately on the beginning of the day. That is what the court held, and, to emphasise the point, it stated that the Act commenced as soon as the clock had struck twelve on the night of the 9th August.2 This later proposition was adopted in England in the Interpretation Act, and is to be found in section 5(3) of our Act.
In a Madras case3, the question to be considered was whether an arrest made at 4.30 or 5 A.M. in the morning of the 23rd January, 1947 in pursuance of Madras Ordinance 1 of 1947, was legal, and it was held that although the Ordinance was published in the Official Gazette late in the day on the 23rd January, it must be deemed to have had effect from mid-night of the night between 22nd and 23rd January. This, in substance, is an explanation of section 5(3).
1. Tomilson v. Bullock, (1878) 4 QB 230 (232).
2. Tomilson v. Bullock, (1878) 4 QB 230 (233).
3. Chenchiah v. Commissioner of Police, ALR 1948 Mad 258.
4.12B. Section 5 and time of commencement-Article 20(1) considered.-
In one of the comments received on. the draft Report circulated by the previous Commission, a point has been made1 that the clause as to the time of commencement of an Act may offend Article 20(1) of the Constitution, so far as penal Acts are concerned. The point made is as follows: Suppose an act which is otherwise lawful is made an offence by a particular statute of the legislature, and that statute comes into force say, at 10 A.M. Under the clause, it is deemed to have come into force from the midnight of the previous day. Suppose the act, which has now become an offence, was committed at, say, 6 A.M. on that day.
Then, by virtue of the proposed clause, that act will become an offence, though Article 20(1) of the Constitution prohibits retrospective penal legislation. This is the point made in the comment. It is emphasised that in Article 20(1), the words used are "at the time of the commission of the Act," and not "at the date of the commission". The suggestion is that in the proposed clause, it may be made clear that it does not apply to statutes or statutory provisions relating to the creation of offences for the first crime.
1. Comment of Shri R.L. Narasimham, as Chief Justice of the Orissa High Court.
4.12BB. We have considered the suggestion carefully. While we appreciate that Article 20(1) of the Constitution has to be borne in mind, we do not think that it is necessary, for that reason, to exclude, from the proposed clause, statutory provisions creating an offence for the first time. The clause has the advantage of laying down a general rule as to the time of commencement, and it would be a convenient rule. In so far as a particular statute creates an offence, it will be read as subject to Article 20(1) of the Constitution. The constitutional provision is paramount to the statutory provision in section 5(1). An express exception is not required. From the point of view of drafting, a specific exception will make the provision very cumbersome.
4.12C. Some difficulty may arise where an Act is to have extra-territorial application, in a place where the standard time is different from the time of the country where the Act is passed. The crucial test is the date prevailing in such place.1 Such extra-ordinary and rare situations also need not come in the way of the proposed provision as to the time of commencement.
1. Rex. v. Legan, 1957 All ER 688 (Court Martial Appeal Court).