iminal 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 1101P of 1958
R H Dhebar for the appellant
The respondent did not appear
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 section 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 section 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 section 57a 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 section 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 section 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 externment
The second was that section 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 section 57 merely re enacted the provisions of section 27 of the City of Bombay Police Act 1902 and that a liability incurred under the older Act was preserved by section 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 section 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 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 vs 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   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 vs 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 vs 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 LJ NS MC 158
2 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  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 vs 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 section 32 of the Bankruptcy Act 1883 the time to be considered is the time at 1 2 1894 I QB 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 vs 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 vs 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 vs 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 1 A1 R 38
2 AIR 1953 Bom
183 z86 187
3 1848  12 QB 120 B 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 section 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 vs 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 LJ in Ex Parte Pratt 2  is used to express a hypothesis without regard to time 
An externment order however to satisfy the 1  556
2 1884 12 QB 334 35 requirements of section 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


Summary:
The District Magistrate apprehending a breach of peace as a result of demonstrations and counter demonstrations held by two rival labour unions promulgated an order under section 144 of the Code of Criminal Procedure which was to remain in force for a period of fifteen days prohibiting inter alia the assembly of five or more persons in certain specified areas
The petitioner took it as an invasion on the fundamental rights of the citizens under article 191a and b of the Constitution and held a meeting outside the specified areas and exhorted the workers to take out processions in the notified areas in defiance of the said order
He was thereupon prosecuted under sections 143 and 188 read with section 117 of the Indian Penal Code
He moved the High Court under section 491 of the Code of Criminal Procedure and having failed to get relief there moved this Court under article 32 of the Constitution challenging the constitutional validity of section 144 of the Code on the ground that it conferred wide and unguided powers on the District Magistrate and thus contravened article 19ia and b of the Constitution
Held that the attack on the constitutional validity of section 144 of the Code of Criminal Procedure must fail 424 Read as a whole the section clearly showed that it was intended to secure the public weal by preventing disorders obstructions and annoyances
The powers conferred by it were exercisable by responsible Magistrates who were to act judicially and the restraints permitted by it were of a temporary nature and could be imposed only in an emergency
The restrictions which the section authorises are not beyond the limits prescribed by cls
2 and 3 of article 19 of the Constitution
The prevention of such activities as are contemplated by the section is undoubtedly in public interest and therefore no less in the interest of public order
Clauses 2 to 6 of article 19 of the Constitution do not require a special enactment for the enforcement of the restrictions mentioned in them
The impugned section must be construed as a whole and although the first part of cl
1 does not expressly mention that the order of the Magistrate must be preceded by an enquiry the second part clearly indicates that the Magistrate has to satisfy himself either by his own enquiry or from a report made to him as to what the facts are
The section does not therefore confer an arbitrary power on the Magistrate in the matter of making the order
The wide power under the section can be exercised only in an emergency and for the purpose of preventing obstruction annoyance or injury etc
as specified therein and those are the factors that must necessarily condition the exercise of the power and therefore it was not correct to say that the power is unlimited or untrammelled
Since the judgment has to be of a Magistrate it can be assumed that the power will be exercised legitimately and honestly
The section cannot be struck down simply on the ground that the Magistrate might possibly abuse his power
Although the section makes the Magistrate the initial Judge of an emergency that cannot make the restrictions placed by it unreasonable
Since maintenance of law and order rests with the Executive it is only appropriate that the initial decision must be with the Magistrate
But such decision is not entirely based on his subjective satisfaction
Sub sections 2 4 and 5 clearly indicate that the Magistrate must act judicially
Moreover the propriety of his order can be challenged in revision
It was not therefore correct to say that the remedy of a person aggrieved by an order under the section was illusory
P T Chandra Editor Tribune vs Emperor AIR 1942 Lah 17r referred to
The American doctrine that previous restraints on the exer cise of fundamental rights are permissible only if there is a clear and present danger can have no application in India since the rights guaranteed by article 191 of the Constitution are not absolute but subject to restrictions under cls
2 to 6 of that 425 Article
Anticipatory action permitted by section 144 is not therefore hit by cls
2 and 3 of article 19
Scheneck vs U section   considered
State of Madras vs V G Row   relied on