The State Of Maharashtra vs Vishnu Ramchandra

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 78 of 1959

Decision Date: 18 October, 1960

Coram: M. Hidayatullah, J.C. Shah

In this matter, the Supreme Court recorded that the appeal titled The State of Maharashtra versus Vishnu Ramchandra was decided on 18 October 1960, with the judgment authored by Justice M Hidayatullah and the bench comprising Justice M Hidayatullah, Justice J C Shah, and Justice M Shah, the case being cited as 1961 AIR 307 and 1961 SCR (2) 26, with further references to RF 1964 SC 464, RF 1973 SC 1227, and the statutes under consideration including the Bombay Police Act 1951 (sections 57(1) and 142) and the Indian Penal Code (sections 114, 380, 411). The Headnote set out that on 16 November 1949 the respondent was convicted under sections 380 and 114 of the Indian Penal Code; subsequently, on 5 October 1957 the Deputy Commissioner of Police, Bombay, exercised power under section 57(1) of the Bombay Police Act to issue an externment order removing the respondent from the limits of Greater Bombay, and later the respondent was prosecuted and convicted under section 142 of the same Act for returning to the area from which he had been externed. The High Court, on revision, acquitted the respondent on the ground that section 57 of the Bombay Police Act was not retrospective and could apply only when the conviction forming the basis of externment occurred after the enactment of the Act. The State, with special leave, appealed this acquittal. The Court held that statutes are ordinarily to be interpreted as applying prospectively unless the language expressly or by necessary implication makes them retrospective; penal statutes that create new offences are always prospective, whereas penal statutes that impose disabilities, although generally interpreted prospectively, may be given retrospective effect when the legislative intention is protective rather than punitive. The Court relied upon authorities including Midland Railway Co. v. Pye, Rex v. Birth‑whistle, Queen v. Vine, Ex Parte Pratt, Bourke v. Nutt, Ganesan v. A K Joscelyne, Taher Saifuddin v. Tyebbhai Moosaji, The Queen v. Inhabitants of St Mary Whitechapel, and Rex v. Austin. It explained that section 57 did not create a new offence but was intended to protect the public from persons previously convicted of certain offences, enabling authorities to note their antecedents and to prevent recurrence of undesirable conduct by placing the offender outside the areas of his activity. The Court interpreted the phrase “has been” in section 57 to mean “shall have been,” indicating that legislation which records a convicted offender’s past conduct for the purpose of restraining future acts is not applied retrospectively provided that the action is taken after the statute comes into force. Accordingly, the Act was held to have been applied prospectively, not retrospectively, and the Court emphasized that an externment order must be bona‑fide and must relate to a conviction that is sufficiently proximate in time to justify the restriction.

In this case the Court observed that the action taken against the accused occurred after the relevant statute had come into force; consequently the provision was applied prospectively rather than retrospectively. The Court further explained that an externment order must be made in good faith and must be based on a conviction that is sufficiently close in time to the order. The judgment concerns a criminal appeal identified as Criminal Appeal No. 78 of 1959, which was entertained by special leave of this Court. The appeal challenged the judgment and order dated 25 November 1958 of the former Bombay High Court in Criminal Revision Application No. 1393 of 1958, which itself arose from the judgment and order dated 18 September 1958 of the Presidency Magistrate, First Class, Mazagaon, Bombay in Case No. 1101/P of 1958. Counsel for the appellant, identified as R. H. Dhebar, represented the State, while the respondent did not appear before the Court. The judgment was delivered on 18 October 1960 by Justice Hidayatullah.

The appeal was lodged by the State of Bombay with special leave, contesting the High Court’s order of acquittal of the respondent, Vishnu Ramchandra. The respondent had earlier been prosecuted under section 142 of the Bombay Police Act and sentenced by the Presidency Magistrate, Second Court, Mazagaon, Bombay, to six months of rigorous imprisonment. Earlier, on 16 November 1949, Vishnu Ramchandra had been convicted under sections 380 and 114 of the Indian Penal Code and sentenced to one month of rigorous imprisonment. Subsequently, on 15 October 1957, the Deputy Commissioner of Police, Bombay, acting under section 57(a) of the Bombay Police Act (22 of 1951), issued an externment order against Vishnu Ramchandra that was to remain in effect for one year, barring him from the limits of Greater Bombay. At that time a prosecution under section 411 of the Indian Penal Code was pending against him, and the order was not immediately enforced so that he could attend the trial. That prosecution concluded on 10 July 1958 with his acquittal. Immediately after the acquittal a constable escorted him out of the Greater Bombay limits and left him there. The State then alleged that he returned to Greater Bombay and was arrested at Pydhonie on 24 August 1958, leading to a prosecution under section 142 of the Bombay Police Act. His defence that he had been forcibly returned to Pydhonie and arrested was rejected by the Presidency Magistrate, resulting in his conviction. He subsequently filed a revision application, which was heard by a single judge of the High Court. Before the High Court three contentions were raised: first, that the Deputy Commissioner of Police had not properly considered the facts before issuing the externment order; second, that section 57 of the Bombay Police Act was prospective and could not be applied unless the conviction on which the externment was based occurred after the Act’s commencement; and third, that the Deputy Commissioner’s belief that Vishnu Ramchandra was likely to commit an offence similar to the pending prosecution was based on that prosecution, a belief that vanished after his acquittal. The High Court declined to examine the first and third contentions, holding that the second contention was decisive.

The Court observed that the first and third grounds were not examined by the High Court because the latter had accepted the second ground as valid. Section 57 of the Bombay Police Act provides that a person who has been convicted of certain offences—namely (a) an offence under Chapter XII, XVI or XVII of the Indian Penal Code, (b) twice of an offence under section 9 or 23 of the Bombay Beggars Act, 1945 or under the Bombay Prevention of Prostitution Act, 1923, or (c) thrice of an offence within three years under section 4 or 12 A of the Bombay Prevention of Gambling Act, 1887 or under the Bombay Prohibition Act, 1949—may, if the Commissioner, the District Magistrate or a Sub‑Divisional Magistrate specially empowered by the State Government has reason to believe that the person is likely to commit again a similar offence, be ordered to remove himself from the area within the local limits of his jurisdiction. The order must specify the route, the time for removal, and must prohibit the person from entering or returning to the area from which he was directed to remove himself.

In reaching his conclusion, the learned single Judge noted that the legislature used the present participle “has been” rather than the past participle in the opening clause of the provision. The Judge interpreted this choice of words to indicate that the section was intended to apply only to persons convicted after the enactment of the Act, and that, being a penal provision, it should be construed prospectively. The Judge rejected the argument raised by the Assistant Government Pleader that Section 57 merely restated the provisions of Section 27 of the City of Bombay Police Act, 1902, and that liability incurred under the older Act was preserved by Section 167 of the Bombay Police Act, 1951. Further, the Judge observed that the Deputy Commissioner of Police, at the time the order of externment was issued, could not be said to have entertained a belief regarding the activities of Vishnu Ramchandra based on his 1949 conviction, because the conviction did not occur after the coming into force of the 1951 Act. Accordingly, the Judge held that the order of externment was invalid both on the ground that the conviction pre‑dated the Act and because the belief of future misconduct could not be based on a pre‑existing conviction.

The respondent was not represented at the hearing before this Court. The Court heard counsel for the appellant, Mr. Dhebar, in support of the appeal. In the Court’s opinion, the High Court was not correct in its interpretation of Section 57 of the Act. The Court emphasized that the question of whether a statutory provision is to operate prospectively or retrospectively must be decided in accordance with well‑settled principles of statutory interpretation, a point that will be addressed in the following discussion.

In this case, the Court explained that the established rule for interpreting statutes required that they be read as applying only to future events unless the language of the statute clearly indicated a retrospective effect, either expressly or by necessary implication. The Court stated that penal statutes which create new offences were always to be given prospective operation, while penal statutes that imposed disabilities were ordinarily interpreted prospectively but could be read retrospectively when the statute unmistakably expressed an intention to affect past conduct. The Court cited the observation of Erle, C. J., in Midland Rly. Co. v. Pye, noting that those who administer the law must be very careful not to give a parliamentary act retrospective operation unless the legislature’s intention to do so was expressed in clear, plain, and unambiguous language, because it would be a shock to justice if conduct that was lawful at the time were later declared unlawful by a new enactment. The Court further observed that this principle had been recognised by the Constitution and had become a constitutional limitation on legislative power.

The Court went on to acknowledge that certain statutes, although they created new punishments, also authorised actions based on conduct that had occurred in the past, and that where such statutes were expressed in language showing a retrospective operation, the general rule against retroactivity did not apply. The Court referred to the remarks of Lord Coleridge, C. J., in Rex v. Birthwhistle, where he explained that many Acts are retrospective and may be taken to be retrospective even without explicit wording, because they are passed to remedy an existing evil. The Court illustrated this principle with the Married Women (Maintenance in Case of Desertion) Act, 1886, where the Act was held to be retrospective without express words, because it was intended to cure an existing evil and to provide a remedy for desertion regardless of whether the desertion occurred before the Act was passed.

Another principle, the Court said, allowed a statute designed to protect the public from harmful conduct to be construed retrospectively if the language permitted such an interpretation, even though the same language could also support a prospective reading. The Court cited Queen v. Vine, a case dealing with the disqualification of persons who sold spirits at retail if they had been convicted of a felony, where the Act was applied retrospectively to individuals convicted before the Act came into force. Cockburn, C. J., was quoted as observing that if the intention of the enactment were merely to aggravate the punishment for a felony by adding a disqualification, the rule against retrospective operation for penal statutes would apply; however, the object of that particular enactment was not to punish offenders but to protect the public against public houses kept by persons of doubtful character. The Court therefore concluded that the protective purpose permitted a retrospective construction in that context.

In this passage the Court explained that the purpose of the legislation was not to punish offenders but to safeguard the public from public houses where spirits were sold by individuals of questionable character. The Court observed that when the Act was examined the language employed appears to convey an intention to protect the public from persons who had been convicted of felonies both in the past and in the future; effectively the words are equivalent to the phrase “every convicted felon.” In the same decision Archibald, J. pronounced with force that, were the provision merely penal in nature, it ought not to be given a retrospective effect; however, he noted that the enactment concerned public and social order and that any imposition of penalties was merely ancillary. The Court then turned to the decision in Ex Parte Pratt, which concerned the phrase “a debtor commits an act of bankruptcy” used to permit the Court to issue a receiving order. Cotton, L.J., interpreted those words as having a retrospective operation, stating that no reliance could be placed on the expression “commits” to indicate that only bankruptcies occurring after the Act’s commencement were intended. Bowen, L.J., further observed in the same case that a detailed study of the Act would reveal that it was framed in an unusual manner; he clarified that the present‑tense language was not employed to refer to temporal sequence but rather to express a logical present tense. Fry, L.J., concurred with Bowen, adding that the present tense in the section was used to articulate a hypothesis without reference to time. Later, in Bourke v. Nutt, Lord Esher, M.R., cited Bowen’s and Fry’s observations and remarked that the case demonstrated that when the present tense is used in the statute—specifically section 32 of the Bankruptcy Act, 1883—the relevant time is the moment at which the Court must act, not the time at which the underlying condition arose. Applying these principles, Lord Esher held that the provision was to be construed prospectively, because the critical moment was when the Court considered whether a person was disqualified, a moment occurring after the enactment of the statute. He added, however, that even if the provision could be described as retrospective, its sole purpose was to serve the public interest, and therefore the rule that limits the retrospective operation of penal statutes did not apply, since the statute in question was not penal. The Court noted that these interpretative principles, although not uniformly agreed upon, have been accepted in subsequent cases in both England and India.

The observations made in earlier authorities have later been accepted by courts in both England and India. In the decision of Ganesan v. A. K. Joscelyne, the Chief Justice observed, and a puisne judge concurred, that although the usual and almost fundamental rule of construction is that statutes, especially those that create liabilities, should not be given a retrospective effect unless the statute contains a clear provision or an inevitable implication to that effect, there exists another principle that courts sometimes apply. That principle holds that when the purpose of an act is not to punish any individual but to safeguard the public from persons who bear the stigma of a conviction or misconduct, the ordinary rule of strict construction need not be adhered to. A similar application of this principle was made in Taher Saifuddin v. Tyebbhai Moosaji by the Chief Justice and another judge, who also referred to the case of The Queen v. Inhabitants of St. Mary Whitechapel, where the Chief Justice observed that although it was argued that the statute applied only to persons who became widows after the Act had been passed and that a presumption against retrospective operation supported that view, the statute was in reality prospective in its direct operation because it dealt solely with future removals and could not properly be called retrospective since part of the condition for its operation was drawn from a time before the Act’s enactment. Section 57 of the Bombay Police Act, 1951, does not create a new offence nor punish conduct that was not already an offence. Its purpose is to protect the public from the activities of undesirable persons who have been convicted of certain kinds of offences. The provision merely authorises the authorities to note such convictions and to keep those persons away from areas where they might repeat the undesirable conduct, thereby safeguarding the public. As the judge in Rex v. Austin remarked, no person possesses a vested right in his past crimes and their consequences that would allow him to claim that future legislation may not consider his previous history. While a convicted offender may be restrained by legislation that takes his antecedents into account, so long as the restriction is imposed after the legislation has come into force, the statute cannot be described as retrospective. Accordingly, the legislation under consideration was applied prospectively, not retrospectively. The remaining issue is whether the wording of the section prevents an action that is based on conduct occurring before the Act was enacted.

In this case, the Court examined whether the language of the statute could be applied to actions that occurred before the legislation was enacted. The phrase “has been” appears in the provision and is expressed in the present perfect tense. The Court noted that this verb form may be interpreted either as meaning “shall have been” or as meaning “shall be.” By reviewing the overall scheme of the enactment and, in particular, the other sections of the same law, the Court found that the intended meaning corresponded to the former interpretation, that is, “shall have been.” The Court explained that the verb “has been” refers to past actions and, quoting the language of Fry, L.J., in Ex Parte Pratt (2), it is employed to express a hypothesis without reference to a specific point in time. The Court further held that an externment order, issued to satisfy the requirements of section 57 of the Bombay Police Act, must be made in good faith and must take into account a conviction that is sufficiently near in time to the order. The Court cited the authorities (1) [1913] 1 K.B. 551, 556 and (2) [1884] 12 Q.B‑334‑ to support this principle. Because no absolute rule can be prescribed, the Court emphasized that each case must be decided on its own factual matrix. Accordingly, the Court set aside the trial court’s acquittal and remitted the matter to the High Court for determination of the remaining issues raised before it, in accordance with the observations made herein. The appeal was allowed.