This article is written by Raunak Sood, student at Bennett University, Greater Noida.

Factual matrix 

Respondent was a criminal who was convicted on 16th November 1949 under S.380 (Theft in dwelling house – Chapter XVII) and S. 114 (Abettor present when the offence was committed – Chapter V) of IPC. The deputy commissioner of police empowered under S.57 of the Police Act which came into force on 11th October 1951, made an order on 15th October 1957 to deport the Respondent outside the local limits of Greater Bombay, the Respondent was deported on 10th July 1958 as per the order of the Deputy Police Commissioner. The Appellant’s case (Prosecution Case) is because the Respondent who had been deported out of Greater Bombay committed a breach of a deportation order by returning to Greater Bombay on 24th August 1958, hence he was prosecuted under S.142 of the Police Act before the Presidency Magistrate.

A revision application was filed by the Respondent in the High Court which overturned the conviction under S.142 of the Police Act vide order dated 30th September 1958 on the ground that S.57 of the Police Act applies prospectively hereafter the Appellant preferred an appeal against the order passed by the single judge of the High Court by appealing to the Supreme Court.

Issue

Whether S.57 of the Police Act can be applied retrospectively?

Arguments made by the appellant

Three major grounds were set up by the Appellant against the Respondents.

• S.57 of the Police Act does not generate or envisage a new crime (offence) to be created nor makes an act performed in the past as punishable, the said law only seeks to protect society against the acts of the menacing elements of the society hence the Police Act has not been given a retrospective effect. 

• A person who has been convicted, his actions and conduct can be impeded by the legislature by enacting legislation that considers the previous acts of the offender (i.e., Respondent).
• After reading the Police Act as a whole, the words “has been” is a past participle and can be interpreted as “shall have been” or “shall be”, but after reading the whole statute it must be interpreted as “shall have been”, hence it is appropriate to interpret “has been” to describe past actions or convictions. 

Arguments made by the respondent

There were two major rebuttals by the Respondent to the grounds set up by the Appellant.

• S.57 of the Police was to be applied prospectively whereas the Respondent had been convicted before the Police Act came into force hence the Police Act was applicable unto the Respondent had he been convicted for theft after the Police Act came into force in 1951.
• The words “has been” is a present participle and not past participle this means that the legislative intent was that the Police Act should have a prospective effect, hence can convictions taking place after the Police Act came into force therein the Deputy Police Commissioner could use his powers under S.57. 

Reasoned decision given by the hon’ble court

The Hon’ble Court did not investigate the question of fact wherein it did not examine whether the Deputy Police Commissioner made the order in good faith but as far as the question of law is concerned the Court had investigated many precedents and gave three reasons for its decision to give an answer to this issue and thereby decide the case conclusively.

1. The Hon’ble Court concurred that the crimes committed by the Respondent in the past, and the consequences of his conviction in a theft-related case falling under Chapter XVII of IPC did not vest a right in the favour of a convict (i.e. Respondent as per the present case), wherein no law shall take into consideration his past actions, since S.57 of the Police did not create a new criminal liability on the previous action of the Respondent wherefore to protect the public from mischievous elements of the society so that such elements do not engage into repeated criminal activities for which they have been punished an order under S.57 passed against the convict was completely justified. 
2. The Hon’ble Court reasoned that a person convicted of an offence may be punished according to the settled law, but this punishment does not bar the legislature from making a law that imposes restrictions upon the convicted persons by considering their previous criminal behaviour, therefore such legislation which regulates the conduct of convicted criminals is said to have been applied retrospectively because the legislative intent is clear. 
3. The Hon’ble Court when interpreting S.57 of the Police Act took a different line of reasoning wherein it said that the words “has been” is mentioned in the present perfect tense and not in past tense because it envisages a literal suggestion without taking into consideration the time frame, hence after reading S.57 and the punishment mentioned in S.141 of the Police Act, the word “has been” has to be read as “shall have been” thereby the S.57 is being applied retrospectively and the High Court committed a grave error when interpreting S.57 of the Police Act. 

Based on these reasons the Hon’ble Court concluded that the High Court took the wrong interpretation in acquitting the Respondent on the ground that S.57 of the Police Act was to be applied on conviction of the Respondent after the Police Act coming into force. Therefore, the Hon’ble Court reversed the order of the High Court acquitting the Respondent and remanded the case back to the High Court for fresh consideration. 

Interpretational principles 

Retrospective operation of statutes- 

• General Principle- Nova constitutio futuris formam imponere debet non praeteritis means new law should affect the future and not the past.

1. If a provision can be fairly interpreted either retrospectively or prospectively, then the interpretation which gives the said provision a prospective effect should be preferred because a new law should affect the future and not the past, until and unless a contrary legislative intent appears in the legislation. 

2. No citizen or natural person has an inherent right vested in his or her past crimes and their penalties will not bar future legislation from taking into consideration the past crimes of such a citizen. 

• The principle laid down in the present case: 

The Hon’ble Court deviating from the general rule iterated that even though a provision of legislation had two interpretations, a prospective and a retrospective interpretation, but since the legislation was to protect the public from harmful characters of the society hence a deviation from the general rule was permitted and the provision may be interpreted retrospectively.

Analysis of recent cases

In the Kochi Cricket Association case, the Respondent i.e., Kochi Cricket Association was delivered with awards by the sole arbitrator, two execution proceedings were filed in the High Court under section 34 of the Act while ascertaining the applicability of S.26 of the amendment to Arbitration and Conciliation Act in the year 2015, the Hon’ble Court looked into the Vishnu Ramchandra Case to interpret the words “has been” which were used in S.36(2) of the Arbitration & Conciliation Act, it was held that the words were not referring to past or previous petitions and this means that the provision was prospective because the legislative intent is not very clear about retrospectivity, therefore, the general presumption against retrospectivity will operate and it was declared that S.36(2) will operate prospectively. 

Comments

Background

A final and conclusive judgement was tendered by the Hon’ble Supreme Court in this case on the 18th October 1961, this is a mostly a law-oriented judgement delivered by Justice Hidayatullah where the major issue was about the retrospective application of S.57 of the Bombay Police Act, 1957. The judgement (present case) highlighted various sections of the Bombay Police Act, 1957 & Indian Penal Code, 1860 hereby laid down the ratio regarding the interpretation of statutes and application of the same in cases like the present case. 

In this case, the Court analysed the facts and law, comprehensively and extensively, thereby reversing the judgement of the Bombay High Court, the Hon’ble Court referred to a catena of case laws to reach the final conclusive and operating part of the judgement wherein the Hon’ble Court gave many reasons to prove the conclusion reached by it by thoroughly analysing the contentions made by both the parties present before it. 

Comments

In my opinion, acts of legislature which come into force on a later date and subscribe a disqualification based on the past conduct of the person, such statues can be applicable either retrospectively or prospectively because no person has a right vested in his past acts hence if there is a situation wherein the legislature is prescribing a law which takes into consideration the past acts of the a person thereof, firstly, check the legislative intent by looking into the object, if the object of the legislation is to protect the public from certain activities then giving a retrospective effect to such a legislation is permissible, secondly, any order or command which a body can pass under an enactment being applied retrospectively that order should not be passed in a mechanical manner hereby it is necessary that any order being made by a competent authority deriving its powers from a retrospective statue should always apply mind to the facts of the case at hand, and lastly, there should be an explicit or necessarily implied legislative intent with regards to an enactment to being applied retrospectively.

In the recent Kochi Cricket Case, the Hon’ble Court was of the view that the judgement rendered in the Vishnu Ramchandra Case was upheld but since the facts of the case were surrounding penal law whereas interpretation of Arbitration and Conciliation Act was a different ball game altogether, therefore, the Hon’ble Court was of the view that Vishnu Ramchandra Case was precise but the line of reasoning could not be applied to interpret the Kochi Cricket Case where it is mainly a dispute arising out of an arbitral award. 

Conclusion

In conclusion, when reflecting upon the Vishnu Ramchandra Case it is pertinent to note that this case sheds a light on the interaction between past actions and retrospectivity of legislations considering the said past action, it is my own view that when a statue whose object is to safeguard public interest contains words with two interpretations a prospective one and a retrospective one, any adjudicating court should always deviate from the general presumption against retrospectivity and give a retrospective effect to the ambiguous words in order to secure to protect public interest therefore the said interpretation should be aligned with the legislative intent behind that particular piece of legislation. 

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