PETITIONER: THE STATE OF MAHARASHTRA Vs. RESPONDENT: VISHNU RAMCHANDRA DATE OF JUDGMENT: 18/10/1960 BENCH: HIDAYATULLAH, M. BENCH: 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: Externment--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 externing 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 externed. 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 externment 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. Birth- whistle, (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 externment order must be bona fide and must relate to a conviction which is sufficiently proximate in time. JUDGMENT:
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
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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 im-
prisonment 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 offences-
If 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 well-
settled 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.
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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 his-
acts 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.B- 334-
35
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.
