This article is written by Advocate Mohd Ashaab.
The answer to the intriguing question is in affirmative and yes, the FIR can be registered under a repealed criminal provision. It sounds strange but one cannot escape the consequent punishment of his actions, even after the provision prescribing punishment for it is no more a part of the statute book. Similarly, if an individual is facing prosecution for a particular crime for which the case is still pending in court and in the meantime the provision is repealed from the statute book, it will not affect the ongoing proceedings and the court still can deliver its verdict convicting the accused person under the repealed provision.
FIR can be registered under a repealed provision in respect of the crimes which were committed in the duration when the repealed provision was in force and the offense has come into light after the repeal of such provision. However, the above proposition is not absolute and there exists an exception where one can still skip the criminal liability. The aforesaid exception will come into play when the law-making authority clearly specifies that the repealing act or the amending act repealing any provision will apply retrospectively. In this situation, the benefit will also extend to the ongoing proceedings, inquiry and investigation under the repealed provision. Consequently, all the proceedings including the pending trials will come to an end with respect to that specific provision.
The existence of the two terms ‘prospectively’ and ‘retrospectively’ in the amending or repealing statute determine whether the pending proceedings will be affected by the repeal or it will remain unaffected. If the repealing act is passed prospectively, it will have no bearing on the pending proceedings and when the repealing act is passed retrospectively, it will have effects on the pending proceedings and the same will stand quashed. If the repealing act is passed retrospectively then all those facing trial or are in the appeal will be entitled to the benefit and the entire proceedings against them will stand quashed.
Section 6 of the General Clauses Act
As of now, the situation is simple as it totally depends upon the legislature to make any law having prospective or retrospective effect. However, the complexities arise when the law is silent on its prospective or retrospective nature. The question before us now is how to deal with a situation where the repealing act or the amendment act repealing the provision is silent on the retrospective or prospective aspect which means the subsequent repealing act is passed without a saving clause.
Whenever a situation arises wherein the new amending law is silent on its prospective or retrospective effect, we take the aid of Section 6 of the General Clauses Act, 1897 which provides clarity on the issue, it states that ‘unless a different intention appears the repeal will not affect the previous operation of any enactment.
The section specifically provides that, unless a different intention appears, the repeal will not affect the previous operation of any enactment so repealed and it shall also not affect any punishment incurred in respect of any offence. Hence, even if the repealing act is silent on the issue of retrospective effect of any act, Section 6 acts as a saving clause for all the pending proceedings under the act so repealed subject to different intention.
It has been rightly said that to get the in-depth understanding of any law one needs to look at its history and the purpose for which it was initially enacted. Now before dealing with this provision in further detail, let us understand its history. Under the law of England, as it stood prior to the Interpretation Act of 1889, the effect of repealing a statute was said to be to obliterate it as completely from the records of Parliament as if it had never been passed, except for the purpose of those actions, which were commenced, prosecuted and concluded while it was an existing law. A repeal therefore without any saving clause would destroy any proceeding whether not yet begun or whether pending at the time of the enactment of the Repealing Act and not already prosecuted to a final judgment so as to create a vested right.
A new practice emerged in England to prohibit such results with an aim to save the existing proceedings, rights and liabilities. Consequently, a special provision was incorporated in Interpretation Act of 1889 which stated that unless a contrary intention appears, the subsequent act does not affect the previous operation of the repealed enactment. Section 6 of General Clauses Act, 1897 finds its roots from that very specific provision.
Unless a different intention appears
The provision places a vast discretion upon the courts to decide whether the amending or repealing statute reflecting a different intention. The Courts assess the provisions of the repealing act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy them. The different intention shall be assessed from the language used in the provisions of the statute, if through the language it is clear that the law-making authority intended to continue the proceedings, then Section 6 will apply with full force. Contrarily, if the intention is found to be otherwise Section 6 will loose its relevance with respect to that enactment and it will not be applicable resulting in the quashing of pending investigations and proceedings.
Section 6 saves the continuance of pending proceedings or investigations as if statute had not been repealed but it would be applicable unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material.
The Supreme Court in the case of ‘Bansidhar v. State of Rajasthan’ dealt with the issue of different intentions stipulated in Section 6 of General Clauses Act. The Court held that to determine different intentions the provisions of the new enactment have to be looked at and ascertained as to whether the new enactment is indicating a different intention.
Article 20 (at the time of the commission of crime)
A Constitutional protection has been placed to bridle the vast power conferred upon the legislature in terms of deciding the prospective or retrospective effect of any law. Under Article 20 of the Constitution of India, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of that act which is an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The understanding of Article 20 reveals that a person shall be convicted under the law in force at the time of the commission of a crime.
The aforesaid protection is a measure kept in place to prevent the misuse of law, which prohibits the legislature from punishing the acts of an individual by enacting a subsequent law. Therefore, an individual can only be punished for the acts which were punishable at the time of commission and not for any act which was not punishable at the time of commission. Furthermore, the protection even fetters the power of the legislature to the extent that it cannot even enhance the prescribed punishment at the time of the commission of such acts.
The legislature can lessen the punishment of any law retrospectively, but it cannot enhance the punishment of any law with retrospective effect in view of Article 20 of the Indian Constitution. Thereby, ex post facto law which only mollifies the rigour of a criminal law does not come within the ambit of the prohibition under Article 20 and if, legislature makes a law which mollifies the rigour of criminal law, though retrospective in operation, it will hold value in the eyes of law.
Rule of beneficial construction
The prohibition under Article 20(1) makes it clear that if the law making authority creates new offences no person can be convicted by such law nor can the enhanced punishment prescribed by the amendment be applicable. On the other hand, if the amendment reduces the punishment for an offence the accused should be given the benefit of such reduced punishment. The rule of beneficial construction requires that laws of this type should be applied to mitigate the rigour of the law. The principle is based on sound reason and common sense. (T. Barai v. Henry Ah Hoe, 1983 SCR (1) 905)
The American case of Calder v. Bull held “I do not consider any law ex post facto within the prohibition that mollifies the rigour of the criminal law, but only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the purpose of conviction…”. (Michell v. Brown, (1958) 120 ER 909, 912.)
Thereby, it appears that the amending laws which mitigate the rigor of criminal law should be given retrospective effect and the benefit of the same should be given to the person facing proceedings against the said crime. The protection of Article 20 will not act as an impediment in such circumstances as the very object of the existence of the protection under Article 20 is to benefit the person facing the charges.
Prevention Of Corruption (Amendment) Act, 2018
At present, the practical application of the legal points discussed above can be viewed in the Prevention of Corruption (Amendment) Act, 2018. The Prevention of Corruption Act, 1988 (the “Act”) was recently amended by the Prevention of Corruption (Amendment) Act, 2018 (the “Amendment Act”). This amendment has brought various changes and one of the amendments is the repeal of Section 13(1)(d). This was the most used provision under the Prevention of Corruption Act, 1988. However, Section 13(1)(d) has now been repealed. The new amendments have come into force with effect from 26 July 2018. The new amendment act has been passed without any saving clause.
Central Bureau of Investigation (CBI) is still registering FIRs after two years of the Amendment under Section 13 (1)(d) of the old Prevention of Corruption Act, the provision which is not even a part of the statute book. However, the allegations for which the FIRs are being registered are of the duration when the old act was in force.
So here the question arises, whether the law allows CBI to do so? The answer to this question lies in the above discussions. The applicability of Section 6 of the General Clauses Act will determine the issue, the applicability of Section 6 will be decided on the basis of the intention which appears in the provisions of the amendment act of 2018. If on interpretation the courts find that the legislature intended to apply the law retrospectively then Section 6 will not apply and all the FIRs under it will be quashed, while on the other hand if the courts finds out that the intention of the legislature was to continue the pending proceedings then all the pending proceedings will continue to proceed and this later stand of court will also give power to CBI to register FIRs under the repealed provisions of old act in future as well. The matter is pending before various High Courts and the Hon’ble Supreme Court of India for adjudication.
A person cannot escape his liability even after the offence for which he is charged is repealed unless specifically provided. The interpretation of the provisions of the amending or repealing statute to determine the intention of the legislature is a mammoth task as both sides come up with different and unique interpretations of the provisions of the statute.
The rules of interpretation, history of the statute, the parliamentary debates, standing committee reports, statement of objects and reasons all play a major role in deciding upon the intention of the statute. At last, the courts choose the most suitable interpretation and decide the prospective and retrospective effect of the statute by assessing the intention of the legislature.
- Craies on Statute Law, 5th edn, p. 323
- Crawford on Statutory Construction, p. 599-600
- Barai v. Henry Ah Hoe, 1983 SCR (1) 905
- 3 US (3 Dall) 386: 1 L Ed 648 (1798)
- Michell v. Brown, (1958) 120 ER 909, 912
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