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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

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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 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  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

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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

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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:-

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"  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

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(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.