{"id":211182,"date":"1960-10-18T00:00:00","date_gmt":"1960-10-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-state-of-maharashtra-vs-vishnu-ramchandra-on-18-october-1960"},"modified":"2018-09-07T16:36:23","modified_gmt":"2018-09-07T11:06:23","slug":"the-state-of-maharashtra-vs-vishnu-ramchandra-on-18-october-1960","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-state-of-maharashtra-vs-vishnu-ramchandra-on-18-october-1960","title":{"rendered":"The State Of Maharashtra vs Vishnu Ramchandra on 18 October, 1960"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The State Of Maharashtra vs Vishnu Ramchandra on 18 October, 1960<\/div>\n
Equivalent citations: 1961 AIR 307, \t\t 1961 SCR (2)\t 26<\/div>\n
Author: Hidayatullah<\/div>\n
Bench: Hidayatullah, M.<\/div>\n
           PETITIONER:\nTHE STATE OF MAHARASHTRA\n\n\tVs.\n\nRESPONDENT:\nVISHNU RAMCHANDRA\n\nDATE OF JUDGMENT:\n18\/10\/1960\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nSHAH, J.C.\n\nCITATION:\n 1961 AIR  307\t\t  1961 SCR  (2)\t 26\n CITATOR INFO :\n RF\t    1964 SC 464\t (13)\n RF\t    1973 SC1227\t (54)\n\n\nACT:\nExternment--Order, if can relate to antecedents of convicted\noffenders--Statute, if Prospective or  retrospective--Bombay\nPolice Act, 1951 (22 of 1951), SS. 57(1), 142--Indian  Penal\nCode, SS. 114, 380, 411.\n\n\n\nHEADNOTE:\nOn November 16, 1949, the respondent was convicted under ss.\n38o  and II4 of the Indian Penal Code.\tOn October 5,  1957,\nthe  Deputy Commissioner of Police, Bombay, acting under  s.\n57(1) of the Bombay Police Act passed an order externing him\nfrom the limits of Greater Bombay.  Later he was  prosecuted\nand  convicted under s. 142 of the Bombay Police Act by\t the\nPresidency  Magistrate for returning to the area from  which\nhe  was externed.  On an application for revision  the\tHigh\nCourt acquitted the respondent upholding his contention that\nS. 57 of the Bombay Police Act was not retrospective and was\nnot applicable unless the conviction on which the externment\nwas  based  took place after the Act came  into\t force.\t  On\nappeal by the appellant with the special leave of this Court\nit was\n27\nHeld,  that though statutes must ordinarily  be\t interpreted\nprospectively unless the language makes them  retrospective,\neither\texpressly  or by necessary  implication,  and  penal\nstatutes creating new offences are always prospective, penal\nstatutes creating disabilities though ordinarily interpreted\nprospectively are sometimes interpreted retrospectively when\nthe  intention\tis not to punish but to protect\t the  public\nfrom  undesirable  persons whose past conduct  is  made\t the\nbasis of future action.\nMidland\t Ry.  Co. v. Pye, IO C.B. (N.S.) 179, Rex v.  Birth-\nwhistle,  (1889)  58 L.J. (N.S.) M.C. 158,  Queen  v.  Vine,\n[1875]\tIO  Q.B. 195, Ex Parte Pratt, [1884]  12  Q.B.\t334,\nBourke\tv.  Nutt,  [1898]  I  Q.B.  725,  Ganesan  v.\tA.K.\nJoscelyne, A.I.R. 1957 Cal. 33, Taher Saifuddin v.  Tyebbhai\nMoosaji,  A.I.R. 1953 Bom. 183, The Queen v. Inhabitants  of\nSt. Mary Whitechapel, [1848] 12 Q.B. 120 (E) : 116 E.R.\t 811\nand  Rex  v.  Austin,  [1913] 1\t K.B.  551,  considered\t and\napplied.\nSection\t 57  of the Bombay Police Act did not create  a\t new\noffence\t but  was designed to protect the  public  from\t the\nactivities  of undesirable persons convicted  of  particular\noffences  and enabled the authorities to take note of  their\nactivities  in order to put them outside the areas of  their\nactivities for preventing any repetition of such  activities\nin the future.\nThe  verb \" has been \" as used in S. 57 meant \"\t shall\thave\nbeen Legislation which takes note of a convicted  offender's\nantecedents for restraining him from his acts cannot be said\nto  be applied retrospectively as long as the  action  taken\nagainst\t him is after the Act comes into force.\t The Act  in\nquestion   was\t thus  not   applied   retrospectively\t but\nprospectively.\nAn  externment order must be bona fide and must relate to  a\nconviction which is sufficiently proximate in time.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 78  of
\n1959.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nNovember  25,  1958,  of the former  Bombay  High  Court  in
\nCriminal  Revision Application No. 1393 of 1958 arising\t out
\nof  the judgment and order dated September 18, 1958, of\t the
\nPresidency  Magistrate 11 Class, Mazagaon at Bombay in\tCase
\nNo. 1101\/P of 1958.\n<\/p>\n
R. H. Dhebar, for the appellant.\n<\/p>\n
The respondent did not appear.\n<\/p>\n
1960.  October 18.  The Judgment of the Court was  delivered
\nby
\n28<\/span>
\nHIDAYATULLAH  J.-This is an appeal by the State of  Bombay,
\nwith  the special leave of this Court, against the order  of
\nacquittal  by  the High Court of Bombay of  the\t respondent,
\nVishnu\tRamchandra, who was prosecuted under s. 142  of\t the
\nBombay Police Act and sentenced to six months’ rigorous\t im-
\nprisonment   by\t the  Presidency  Magistrate,\t2nd   Court,
\nMazagaon, Bombay.\n<\/p>\n
On November 16, 1949, Vishnu Ramehandra was convicted  under
\ns.  380 and 114 of the Indian Penal Code, and  sentenced  to
\none month’s rigorous imprisonment.  On October 15, 1957, the
\nDeputy\t‘Commissioner  of Police, Bombay,  acting  under  s.
\n57(a) of the Bombay Police Act (22 of 1951), passed an order
\nagainst Vishnu Ramchandra which was to operate for one year,
\nexterning  him from the limits of Greater Bombay.   At\tthat
\ntime,  a prosecution under s. 411 of the Indian\t Penal\tCode
\nwas  pending  against  Vishnu Ramchandra,  and\the  was\t not
\nimmediately  externed,\tto enable him to  attend  the  case.
\nThis  prosecution  came\t to an end on  July  10,  1958,\t and
\nresulted  in  his  acquittal.\tImmediately  afterwards,   a
\nconstable took him outside the limits of Greater Bombay, and
\nleft  him there.  The prosecution case was that he  returned
\nto  Greater Bombay, and was arrested at Pydhonie  on  August
\n24,  1958.   He was prosecuted under s. 142  of\t the  Bombay
\nPolice\tAct.  His plea that he was forcibly brought back  to
\nPydhonie  and  arrested was not accepted by  the  Presidency
\nMagistrate, and he was convicted.\n<\/p>\n
He  filed  a  revision application, which  was\theard  by  a
\nlearned\t single\t Judge of the High Court of  Bombay.   Three
\ncontentions  were raised before the High Court.\t  The  first
\nwas  that the Deputy Commissioner of Police had not  applied
\nhis mind to the facts of the case before making the order of
\nexternment.  The second was that s. 57 of the Bombay  Police
\nAct  was  prospective,\tand could not  be  made\t applicable,
\nunless the conviction on which the action of externment\t was
\nbased,\ttook place after the coming into force of that\tAct.
\nThe  third  was that the belief entertained  by\t the  Deputy
\nCommissioner that Vishnu Ramchandra was
\n29<\/span>
\nlikely\tto  engage himself in the commission of\t an  offence
\nsimilar to that for which he was prosecuted was based on the
\nprosecution  which  was then pending, and that\tthat  ground
\ndisappeared  after  his acquittal.  The High Court  did\t not
\nconsider  the first and the third grounds, because  it\theld
\nthat the second ground was good.\n<\/p>\n
Section 57 of the Bombay Police Act reads as follows:
\n” Removal of persons convicted of certain offences-
\nIf a person has been convicted-\n<\/p>\n
(a)  of\t an  offence under Chapter XII, XVI or XVII  of\t the
\nIndian Penal Code (XLV of 1860), or\n<\/p>\n
(b)  twice of an offence under section 9 or 23 of the Bombay
\nBeggars Act, 1945 (Bom.\t XXIII of 1945,) or under the Bombay
\nPrevention of Prostitution Act, 1923 (Bom.  XI of 1923), or\n<\/p>\n
(c)  thrice  of\t an offence within a period of\tthree  years
\nunder section 4 or 12A of the Bombay Prevention of  Gambling
\nAct,   1887  (Bom.   IV\t of  1887),  or\t under\tthe   Bombay
\nProhibition Act, 1949 (Bom.  XXV of 1949) the  Commissioner,
\nthe  District  Magistrate or the  Sub-Divisional  Magistrate
\nspecially empowered by the State Government in this  behalf,
\nif  he\thas reason too believe that such  person  is  likely
\nagain  to  engage himself in the commission  of\t an  offence
\nsimilar to that for which he was convicted, may direct\tsuch
\nperson\tto remove himself outside the area within the  local
\nlimits\tof his jurisdiction, by such route and\twithin\tsuch
\ntime  as the said officer may prescribe and not to enter  or
\nreturn\tto  the area from which he was\tdirected  to  remove
\nhimself “.\n<\/p>\n
In reaching his conclusion the learned single Judge observed
\nthat  the legislature had used the present participle ”\t has
\nbeen ” and not the past participle in the opening portion of
\nthe  section, and that this indicated that the\tsection\t was
\nintended  to  be  used only where  a  person  was  convicted
\nsubsequent to the coming into force of the Act.\t He  further
\nobserved   that\t being\ta  penal  section,  it\thad  to\t  be
\ninterpreted  prospectively.  He repelled an argument of\t the
\nAssistant
\n30<\/span>
\nGovernment   Pleader  that  s.\t57  merely  re-enacted\t the
\nprovisions of s. 27 of the City of Bombay Police Act,  1902,
\nand  that  a  liability incurred under\tthe  older  Act\t was
\npreserved  by  s.  167 of the Bombay  Police  Act  of  1951.
\nObserving further that the Deputy Commissioner of Police  at
\nthe  time of the passing of the order could not be  said  to
\nhave  entertained  a belief about the activities  of  Vishnu
\nRamchandra  based upon his conviction in the year  1949,  he
\nheld  that  the\t order of externment  must  be\tregarded  as
\ninvalid\t for  that reason and also on the  ground  that\t the
\nconviction was not after the coming into force of the Act.
\nAt   the   hearing  before  us,\t the  respondent   was\t not
\nrepresented.   We  have heard Mr. Dhebar in support  of\t the
\nappeal, and, in our opinion, the High Court was not right in
\nthe  view  it had taken of s. 57 of the Act.   The  question
\nwhether\t an enactment is meant to operate  prospectively  or
\nretrospectively\t has to be decided in accordance with  well-
\nsettled principles.  The cardinal principle is that statutes
\nmust   always  be  interpreted\tprospectively,\tunless\t the
\nlanguage  of the statutes makes them  retrospective,  either
\nexpressly or by necessary implication.\tPenal statutes which
\ncreate\tnew  offences  are  always  prospective,  but  penal
\nstatutes   which  create  disabilities,\t though\t  ordinarily
\ninterpreted   prospectively,   are   sometimes\t interpreted
\nretrospectively\t when there is a clear intendment that\tthey
\nare  to\t be applied to past events.  The reason\t why  penal
\nstatutes  are  so construed was stated by Erle,\t C.  J.,  in
\nMidland Rly.  Co. v. Pye (1) in the following words:
\n“Those whose duty it is to administer the law very  properly
\nguard against giving to an Act of Parliament a retrospective
\noperation,  unless the intention of the legislature that  it
\nshould\tbe  so construed is expressed in  clear,  plain\t and
\nunambiguous  language;\tbecause it manifestly  shocks  one’s
\nsense of justice that an act, legal at the time of doing it,
\nshould be made unlawful by some new enactment “.
\nThis  principle has now been recognised by our\tConstitution
\nand   established   as\ta  Constitutional   restriction\t  on
\nlegislative power.\n<\/p>\n
(1)  10 C.B. (N.S.) 179, 191.\n<\/p>\n
31<\/span><\/p>\n
There are, however, statutes which create Do new punishment,
\nbut  authorise some action based on past conduct.   To\tsuch
\nstatutes,  if  expressed in language  showing  retrospective
\noperation, the principle is not applied.  As Lord Coleridge,
\nC.  J.,\t observed during the course of arguments in  Rex  v.
\nBirthwhistle (1):\n<\/p>\n
” Scores of Acts are retrospective, and may without  express
\nwords be taken to be retrospective, since they are passed to
\nsupply\ta  cure to an existing evil.” Indeed, in  that\tcase
\nwhich arose under the Married Women (Maintenance in Case  of
\nDesertion) Act, 1886, the Act was held retrospective without
\nexpress words.\tIt was said:\n<\/p>\n
” It was intended to cure an existing evil and to afford  to
\nmarried women a remedy for desertion, whether such desertion
\ntook place before the passing of the Act or not.”
\nAnother principle which also applies is that an Act designed
\nto  protect the public against acts of a  harmful  character
\nmay  be\t construed retrospectively, if the  language  admits
\nsuch  an interpretation, even though it may equally  have  a
\nprospective meaning.  In Queen v. Vine (2), which dealt with
\nthe disqualification of persons selling spirits by retail if
\nconvicted of felony, the Act was applied retrospectively  to
\npersons\t who  were  convicted  before  the  Act\t came\tinto
\noperation.  Cock burn, C. J., observed:-\n<\/p>\n
“If  one  could\t see  some  reason  for\t thinking  that\t the
\nintention  of  this enactment was merely  to  aggravate\t the
\npunishment  for felony by imposing this disqualification  in
\naddition, I should feel the force of Mr. Poland’s  argument,
\nfounded\t on  the  rule\twhich  has  obtained  in  putting  a
\nconstruction upon statutes that when they are penal in their
\nnature they are not to be construed retrospectively, if\t the
\nlanguage is capable of having a prospective effect given  to
\nit  and’  is not necessarily retrospective.   But  here\t the
\nobject\tof the enactment is not to punish offenders, but  to
\nprotect\t the public against public houses in  which  spirits
\nare retailed being kept by persons of doubtful character …
\nOn looking at the Act, the words used seem
\n (1) (1889) 58 L.J. (N.S.) M.C. 158.\n<\/p>\n
  (2) [1875] 10 Q.B. 195.\n<\/p>\n
32<\/span><\/p>\n
to  import  the\t intention to  protect\tthe  public  against
\npersons\t convicted  in the past as well as  in\tfuture;\t the
\nwords are in effect equivalent to ‘every convicted felon’.”
\nIn   the  same\tcase,  Archibald,  J.,\t expressed   himself
\nforcefully when he observed:-\n<\/p>\n
”  I quite agree, if it were simply a penal enactment,\tthat
\nwe  ought not to give it a retrospective operation ; but  it
\nis an enactment with regard to public and social order,\t and
\ninfliction of penalties is merely collateral.”
\nSimilarly, in Ex Parte Pratt (1), which dealt with the words
\n”  a  debtor commits an act of bankruptcy ”  to\t enable\t the
\nCourt  to  make a receiving order, Cotton, L. J.,  gave\t the
\nwords a retrospective operation, observing:–
\n”  I  think that no reliance can be placed on  the  words  I
\ncommits’  as showing that only acts of bankruptcy  committed
\nafter the Act came into operation are intended.”
\nIn the same case, the observations of Bowen, L. J., were:-
\n” I think that the more the Act is studied the more it\twill
\nbe found that it is framed in a very peculiar way.  I do not
\nmean to say that it is inartistically framed.  I think it is
\nframed\ton  the\t idea  that  a\tbankruptcy  code  is   being
\nconstructed, and when the present tense is used, it is used,
\nnot in relation to time, but as the present tense of logic.”
\nFry, L. J., added :-\n<\/p>\n
”  I entirely agree with Bowen, L. J., as to the meaning  of
\nthe  present tense in the section ; it is used, I think,  to
\nexpress a hypothesis, without regard to time.”
\nIn Bourke v. Nutt (2), Lord Esher, M. R., speaking of  these
\nobservations of Bowen and Fry, LL.  J., observed :-
\n” … the case seems to show that when the present tense  is
\nused in this statute (s. 32 of the Bankruptcy Act, 1883) the
\ntime to be considered is the time at
\n(1) [1884] 112 Q.B. 334.\n<\/p>\n
(2) [1894] I Q.B. 725.\n<\/p>\n
33<\/span><\/p>\n
which  the Court has to act, and not the time at  which\t the
\ncondition  of  things  on  which it has\t to  act  came\tinto
\nexistence.”\n<\/p>\n
Applying the above principles, Lord Esher, M. R., held\tthat
\nthe  section was not retrospective but prospective,  because
\nthe important time was that at which it had to be considered
\nwhether the person was disqualified and it related to a time
\nafter  the  passing of the Act.\t He, however, added  that  ”
\neven  if  it  could be said that  it  is  retrospective\t its
\nenactments  are solely for the public benefit, and the\trule
\nthat  restricts\t the  operation\t of  a\tpenal  retrospective
\nstatute does not apply, because this statute is not penal.”
\n These\tprinciples, though not unanimously  expressed,\thave
\nbeen  accepted in later cases both in England and in  India.
\nIn  Ganesan  v.\t A. K. Joscelyne (1),  Chakravarti,  C.\t J.,
\nobserved, Sarkar, J. (as he then was), concurring:-
\n” I may state, however, that in spite of the ordinary and  I
\nmight\talmost\tsay  cardinal  rule  of\t construction\tthat
\nstatutes, particularly statutes creating liabilities,  ought
\nnot  to\t be so construed as to given  them  a  retrospective
\noperation  unless there is a clear provision to that  effect
\nor  a necessary intendment implied in the provisions,  there
\nis  another principle on which Courts have sometimes  acted.
\nIt  has been held that where the object of an Act is not  to
\ninflict punishment on anyone but to protect the public\tfrom
\nundesirable  persons, bearing the stigma of a conviction  or
\nmisconduct   on\t their\tcharacter,  the\t ordinary  rule\t  of
\nconstruction need not be strictly applied.”
\nIn  Taher  Saifuddin  v.  Tyebbhai  Moosaji  (2),  the\tsame
\nprinciples  were applied by Chagla, C. J. and  Bhagwati,  J.
\n(as  he then was), and reference was made also to The  Queen
\nv.  Inhabitants\t of  St. Mary  Whitechapel  (3)\t where\tLord
\nDenman, C. J., in his judgment observed:-
\n”  …\tit was said that the operation of  the\tstatute\t was
\nconfined to persons who had become widows after
\n (1) A.1 R. 1957 Cal. 33,38.\n<\/p>\n
 (2) A.I.R. 1953 Bom. 183, z86, 187.\n<\/p>\n
(3) [1848) 12 Q.B. 120 (B): 116 E.R. 811.\n<\/p>\n
34<\/span><\/p>\n
the   Act  passed,  and\t that  the  presumption\t against   a
\nretrospective\tstatute\t  being\t intended   supported\tthis
\nconstruction;  but we have before shown that the statute  is
\nin its direct operation prospective, as it relates to future
\nremovals  only,\t and  that  it\tis  not\t properly  called  a
\nretrospective  statute because a part of the requisites\t for
\nits action is drawn from time antecedent to its passing.”
\nNow s. 57 of the Bombay Police Act, 1951, does not create  a
\nnew  offence  nor  makes punishable that which\twas  not  an
\noffence.   It  is designed to protect the  public  from\t the
\nactivities of undesirable persons who have been convicted of
\noffences of a particular kind.\tThe section only enables the
\nauthorities  to\t take note of their convictions and  to\t put
\nthem  outside  the  area of their activities,  so  that\t the
\npublic\tmay  be\t protected  against  a\trepetition  of\tsuch
\nactivities.  As observed by Phillimore, J., in Rex v. Austin
\n(1),
\n“No man has such a vested right in his past crimes and their
\nconsequences  as  would entitle him to insist  that in\tno
\nfuture\tlegislation shall any regard whatever be had to\t his
\nprevious history.”\n<\/p>\n
An offender who has been punished may be restrained in\this-
\nacts  and conduct by some legislation, which takes  note  of
\nhis antecedents; but so long as the action taken against him
\nis  after  the Act comes into force, the statute  cannot  be
\nsaid to be applied retrospectively.  The Act in question was
\nthus not applied retrospectively but prospectively.
\nIt  remains only to consider if the language of the  section
\nbars  an  action based on past actions before  the  Act\t was
\npassed.\t  The  verb  “has been” is in  the  present  perfect
\ntense, and may mean either ” shall have been ” or ” shall be
\n“.  Looking,  however, to the scheme of the enactment  as  a
\nwhole  and  particularly  the other portions of\t it,  it  is
\nmanifest  that the former meaning is intended.\tThe  verb  ”
\nhas  been  ”  describes past actions,  and,  to\t borrow\t the
\nlanguage  of Fry, L.J., in Ex Parte Pratt (2), ” is used  to
\nexpress a hypothesis, without regard to time “.
\nAn externment order, however, to satisfy the
\n(1) [1913] 1 K.B. 551, 556.\n<\/p>\n
(2) [1884] 12 Q.B- 334-\n<\/p>\n
35<\/span><\/p>\n
requirements of s. 57 of the Bombay Police Act, must be made
\nbona  fide,  taking  into  account  a  conviction  which  is
\nsufficiently proximate in time.\t Since no absolute rule\t can
\nbe laid down, each case must depend on its own facts.
\nIn  the\t result, we set aside the acquittal, and  remit\t the
\ncase  to  the High Court for disposal on  the  other  points
\nurged  before it and in the light of observations made\there
\nby us.\n<\/p>\n
Appeal allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The State Of Maharashtra vs Vishnu Ramchandra on 18 October, 1960 Equivalent citations: 1961 AIR 307, 1961 SCR (2) 26 Author: Hidayatullah Bench: Hidayatullah, M. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-211182","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe State Of Maharashtra vs Vishnu Ramchandra on 18 October, 1960 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-state-of-maharashtra-vs-vishnu-ramchandra-on-18-october-1960\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The State Of Maharashtra vs Vishnu Ramchandra on 18 October, 1960 - 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