Rama Sharma vs Pinki Sharma and Others

S.H.S. Abidi, J.—This revision has been filed by Rama Sharma against the order dated 6.3.1990 in Sessions Trial No. 279/84 passed by the learned Additional Sessions Judge, Patna, discharging the accused u/s 498A of the Indian Penal Code (for short I.P.C.)

The facts, in brief, are tbat a complaint was filed by Smt. Rama Sharma (hereinafter referred to as the complainant) before the learned Chief Judicial Magistrate, Patna, saying that she was married to Brij Bhushan Sharma (accused No. 5 and opposite party No. 4 in the petition here) on 21.2.1979. In the marriage various valuable articles were given to her. After about four months of the said marriage Dharampal Sharma and Ratan Devi, her father-in-law and mother-in-law (opposite party Nos. 2 and 3) Deobrata Sharma the elder brother of her husband and Pinki Devi his wife both opposite party Nos. 1 and 5 and also Brijbhushan Sharma (husband of the complainant) began to extract money from her and also they put pressure upon her to bring more money from her widowed mother. On a number of times the complainant and her mother succumbed to this pressure and gave heavy amount. Then on further demand on account of annoyance as well as being helpless her mother declined to cow down and refused to pay any more. Then Dharampal Sharma and Deobrata Sharma (her father-in-law and elder brother-in-law) and even her husband began pressurising her to indulge in flesh trade. Pinki Sharma her self an woman of bad character having illicit relation with her father-in-law Dharampal Sharma. On the refusal of the complainant to indulge in flesh trade these persons began to illtreat her, assaulted her, and even snatched her ornaments and asked her to get out of the house. She had been assaulted on several days. On 18.8.1981 at about 10 P.M. Ratan Devi and Pinki Sharma closed the door from inside at the instance of the other accused and Brij Bhushan Sharma sprinkled kerosene oil on the informant''s body and wanted to set her on fire but on account of alarm raised by her, the mohalla people came to her rescue. Again on 8.10.1981 at about 11 P.M. she was given fists and slaps beating mercilessly. Her two sons were also aken away from her and she was turned out. She went to the police-station for giving information but by the time the police, reached she house, the accused had left the house. She again began to live with them. Again on 5.1.1982 at about 9.30 P.M. she was beaten and turned out of the house. She brought the police and at whose intervention she got back to her house. Again on 14.1.1982 at about 2 A.M. the accused got her seated in a taxi, out on account of commotion in the house his time she was saved. Then again on 12.2.82 he was beaten. Deobrata Sharma closed her (sic)outh and threw her down in a room and then Brij Bhushan Sharma began pressing her (sic)eck in order to kill her, but somehow the eighbours came and she was saved. On 5.2.1982 the accused again arranged to kill her for which was got information somehow and then approached the City Superintendent of Police upon which the police came to the (sic)ot and although they found the facts correct but the police refused to register any case gainst the accused.

The accused again attempted on 25.2.1982 at 11.30 P.M. and assaulted her and then (sic)rijbhushan Sharma forced her to write on a paper that she was leaving the house on her own accord. A maid-servant of the house Malti Devi was raped on 9.5.1982 by the complainant''s father-in-law Dharampal Sharma against which the complainant had raised her (sic)oice which caused annoyance to the accused and so on 24.5.1982 at about 7 P.M. Deobrata Sharma and Pinki Sharma sprinkled hot water (sic) her, yet the complainant did not die, tho(sic)gh she had remained in hospital for about seven days.

Her complaint with these allegations, was (sic) before the learned Chief Judicial Magistrate, was sent to the Gandhi-maidan police- station where it was registered on 18.6.1982 as Gandhimaidan P.S. Case No. 540/82 Under Sections 307 and 376 I.P.C. and Section 3/4 of the Dowry Prohibition Act. The police after investigation submitted chargesheet against the said five accused persons who were committed to the Court of learned Sessions Judge being St. No. 279/84. The accused filed an application dated 2.8.1985 u/s 227 Code of Criminal Procedure for their discharge saying that there was no case made out against them. The learned Sessions Judge heard the learned Counsel for the parties, and passed an order on 18.12.1985 discharging only Ratan Devi and Pinki Sharma and charges were framed against Brijbhushan Sharma under Sections 384 and 307 I.P.C. against Dharampal Sharma Under Sections 109 and 376 I.P.C. and against Deobrata Sharma and Brij Bhushan Sharma u/s 324 I.P.C. Deobrata Sharma was further charged Under Sections 307/324 I.P.C. These accused did not move any Court against this order of framing charge, nor did the complainant do anything against the order of discharge.

When the sessions Tr. No. 279/84 started from 12.3.1986 she examined P.W 1 Janardan Pd. who proved the complaint petition. She also produced her mother Sumitra Baxi and Surendra Kumar her bahnoi and also produced her sister Dr. Uma Sharma.

After examination of these witnesses the State filed an application dated 1.4.1986 u/s 319 Code of Criminal Procedure for summoning the discharged accused Pinki Sharma and Ratna Devi on the ground that from the evidence of these witnesses participation of these two women was also made out. From the evidence of these witnesses demand of dowry was made out against these accused also as said in the complaint and the first information report. The accused contested this application saying that these women accused had been discharged and no revision having been preferred against the same and so the order had become final. The learned Sessions Judge dismissed the said application on 1.4.1986 u/s 319 Code of Criminal Procedure saying that the complaint petition was not a substantive piece of evidence and no action could be taken on the basis thereof and that these statements of P.Ws. 2, 3 and 4 were based on information from the complainant herself and unless complainant Rama Sharma herself is examined, the evidence of these three witnesses cannot be taken into consideration to summon the accused u/s 319 Code of Criminal Procedure. However, the trial resumed on 8.5.1986 and after examination of other P.Ws. 5, 6 and 7 the complainant examined herself on 29th May, 1986. Her cross examination continued for several days. While her cross-examination was going on 13.12.1986, an application was filed by the State again u/s 319 Code of Criminal Procedure to summon the two women accused. At last her cross-examination concluded and the Court on 7.7.1987 passed the order aud dismissed the said application u/s 319 Code of Criminal Procedure holding that earlier order dated 18.12.1985 had been passed with the charges against the two women were uncertain, and the second application u/s 319 will amount to review of the earlier order of discharge and further the Court also relied upon a decision of Radhe shyam Mishra v. State of U.P. (1286 ALJ 1341 : 1986 (III) Crimes 41 that Section 319(1) Code of Criminal Procedure is applicable only to a person who is not an accused and since the two women, accused had already been discharged, this power cannot be exercised again against them.

The complainant filed Cr. Rev. No. 716/1987 which was decided by this Court on 12th August, 1988 wherein the accused took the plea that the revision by the complainant was not maintainable as the application u/s 319 Code of Criminal Procedure by the State has been dismissed and no revision has been preferred by the State and further the power could not be exercised against those accused who have been discharged. This Court allowed the revision and set aside the order of the Court below holding that the revision was maintainable by the complainant who has got locus standi and that the power u/s 319 Code of Criminal Procedure could be exercised even against the discharged accused. This Court while setting aside the order directed the Court below to pass suitable orders after considering the materials available before it as it is the sole Judge to consider the evidence when the matter comes up before it again even against the two discharged accused.

After the matter went to the Court below, the learned Additional Sessions Judge 9th passed an order on 5.12.1988 holding that there was no material on record to put these two female accused on trial. He, therefore, dismissed the application u/s 319 Code of Criminal Procedure. Against the order dated 5.12.1988 the complainant preferred Cr. Rev. No. 61/1989 which was allowed by this Court on 31.8.1989 (reported in 1991 (1) P.L.J.R. 139 Rama Sharma v. Pinki Sharma. This Court held in the aforesaid decision at pages 25 and 26:

In this case the material that has been given out by the Petitioner may attract several provisions including the provisions contained in Section 498A I.P.C. which provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelly shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine, and cruelty has been defined-any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman or (b) harassment of the women such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Definitely the evidence as said above is showing that the Petitioner has been subjected to cruelty not only by the husband but his father, mother, brother and brother''s wife including the two women accused who have been forcing her to commit suicide and were causing grave injury and danger to her life both mental and physical and they were also harassing her to meet the unlawful demand of dowry which to some extent she had met earlier and now she was not able to meet. In the circumstances as mentioned above the order of the Court below is liable to be set aside. Finding a prima facie case against U.P. Nos. 1 and 2 the application for exercising of power by the learned Sessions Judge u/s 319 Code of Criminal Procedure is entitled to be allowed.

The matter went back to the Court below. The women accused appeared before the learned Sessions Judge on 30.9.1989 and the case was fixed for framing charge against them. The Additional Public Prosecutor actually submitted that offence u/s 498A. Code of Criminal Procedure was also made out against all the live accused persons including these two women. On 6.12.1989 a petition was filed by she accused to reject the above mentioned (sic)ontentions of the prosecution. To the same effect Anr. petition was filed by the accused on 18.12.1989 to which the prosecution filed (sic)ejoinder petition. The prosecution in support of this contention has relied upon the decision (sic) the case of Vasanta Tulshi Ram Bhoyar v. The State of Maharashtra (1987 Cri.L.J. 901) or the contention that the past incidences of cruelty prior to the date of amendment are included in the amplitude of the aforesaid amended provision of law. Whereas on behalf of the accuced it was contended that the incident in question that took place prior to the date of commencement of the amended provisions which were operative from 25.12.1983 did not attract the provisions of Section 498A I.P.C. The learned Sessions Judge accepted the contention of the learned Counsel for the accused and held that the provisions are not retrospective in operation and since the occurrence took place lastly on 24.5.1982 whereas Section 498A came into existence on 25.12.1983, the accused persons could not be charged u/s 498A. He, therefore, rejected the prayer of the Petitioner to frame charge against the accused. Against this order the present revision being numbered as Cr. Rev. 145/1990 has been preferred by complainant Rama Sharma against all the five accused. It has been contended by the learned Counsel for the Petitioner that though provisions of Section 498A are not retrospective in operation yet the past events can be looked into for passing conviction u/s 498A I.P.C. Whereas learned Counsel for the other side says that even the past can be looked into as the Act is retrospective in nature.

As to these contentions the last date of occurrence is dated 24.5.1982. The complaint has been filed on 9.6.1982. Section 498A I.P.C. came into force on 25.12.1983. Section 304B I.P.C. and Sections 113A and 113B of the Evidence Act came into force by the second Criminal Law Amendment Act passed on 25.12.1983.

The basic principles of interpretation are that Statutes are interpreted prospectively, unless the legislature either by express, clear and unambiguous language has made it retrospective or they are made retrospective by necessary implication. Some Statutes though prospective are made to operate retrospectively Unless there are circumstances to interpret them otherwise. Further some Statutes are not express to oparate retrospectively but as they are made to cure some evil in the society or when the public is sought to be protected against the acts of some harmful characters to protect them and to cure the evils of society retrospectivity becomes the principle of their interpretation. In doing so the past conducts and the past events are taken into account. There are some Stututes also which do not create any new punishment but the basis of judging the events for conviction and punishment may be the past events. Sometimes further for the purpose of procedure acts are made operative retrospectively unless the construction may be against the Statutes itself. This is sometimes done also to cure the defects in the language or the meaning of the Statutes makes it obscure. Vested rights are not interfered by giving a Statute retrospective operation unless there is a clear provison to that effect or there is necessary intendment, for its operation earlier then the commencement of the vested right. Appeals and pending matters are also at times eaffected by this interpretation as the case may be, These are some of the principles on which the Statutes are interpreted from time to time by the Courts.

As to the retrospective operation to the legislation for Various reasons enumerated above, unless intention of the legislature is otherwise as the Supreme Court has said from time to time. In the case of Shyabuddinsab Mohidinsab Akki Vs. The Gadag-betgeri Municipal Borough and Others, it has observed at page 319 para 12:

No authority has been cited before us in support of the contention that unless there are express words in the amending statute to the effect that the amendment shall apply to pending proceedings also, it cannot affect such proceedings.

The Supreme Court in the case of The State of Maharashtra Vs. Vishnu Ramchandra,

P. 6... 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 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 and Co. v. Pye, (1061) 10 C.B.N.S. 179 at P. in the following words:

Those whose duty it is to administer the law very properly guard against giving 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.

There are, however, statutes which create no 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 a. Birwistle Etc. JJ. (1889) 58 L.J.M.C. 158;

Scores of Acts are retrospective, and may without express words be taken to be retrospective, sines they are past period to supply a cure to an existing evil.

In deed, in that case which arose under the married Woman (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 woman 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, (1875) 10 Q.B 195 which dealt with the disqualification of persons selling spirit by retail if convicted of felony, the Act was applied retrospectively to persons who were convicted before the Act came into operation. Cockburn, 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 he construed retrospectively, if the language is capable of having 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 to report 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 be observed;

I quite agree in 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 to lateral.

Similarly the Ex-parte, pratt (1984) 12 UBD 334 which dealt with the words'' a debtor commits an act of bankeruptcy'' 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 word commits'' as shewing 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 in artistically framed. I think it is framed on the idea that a bankruptcy Court 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, 1894 1 Q.B. 725 Lord Esher, M.R. speaking of these observations of Bowen and Fry, L.LJ. 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 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 tho 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, in India. In S. Ganesan Vs. A.K. Joscelyne, Chakravartti, C.J., observed, Sarkar, J. (as he then was) concurring:

I may state, however, that inspite 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 give them a retrospective operation unless there is a clear provision to that effect or a necessary intendment implied in the provisions, there is Anr. principle on which Courts have sometims acted. It has been held that where the object of an Act is not to inflict punishment on any one but to protect the public from undersirable persons, bearing the stigma of a conviction or misconduction their character, the ordinary rule of construction need not be strictly applied.

In Syedna Taher Saifuddin Vs. Tyebbhai Moosaji Koicha and Another, 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 hitechapel, (1848) 12 QB. 120 ; 116 ER 811 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 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 or 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 from undersirable persons to 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 1913 1 K.B. 551 at P. 556.

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 its previous history.

An offender who has been punished may be restrained in his acts and conduct by some legislation, which takes note of his antecedent; but so long as the action taken against him is after the Act comes into force, the Statutes cannot be said to be applied retrospectively. The Act in question was thus not applied retrospectively but prospectively.

In the case of Ahemdabad Manufacturing and Calico Printing Co. Ltd. v. S.G. Mehta income tax Officer and Anr. (AIR 1963 S.C. 1486) the Supreme Court observed at pages 1441 and 1445 paras 11 and 34:

...A statute which is not declaratory of a pre-existing law nor a matter relating to procedure but affects vested rights cannot be given a greater retrospective effect than its language renders necessary, and even in construing a section which is to a certain extent retrospective, the line is reached at which the words of the section ceased to be plain. These are well settled principles, and there is no reason to doubt their accuracy...

...The date on which the amendment comes into force is the date of the commencement of the amendment. It is read as amended from that dates Under ordinary circumstances, an Act does not have retrospective operation on substantial rights which have become fixed before the date of the commencement of the Act. But this rule is not unalterable. The legislature may effect substantial rights by enacting laws which are expressly retrospective or by using language which has that necessary result. And this language may give an enactment more retrospectivity than what the commencement clause gives to any of its provisions. When this happens the provisions thus made retrospective, expressly or by necessary intendment, operate from a date earlier than the date of commencement and affect rights which, but for such operation, would have continued undisturbed....

In the case of Sajjan Singh Vs. The State of Punjab, the Supreme Court observed at page 468 paras 12, 13 and 14:

...We agree with the learned Counsel that the Act has no retrospective operation. We are unable to agree however that to take into consideration the pecuniary resources or property in the possession of the accused or any other person on his behalf which are acquired before the date or the Act is in any way giving the Act a retrospective operation.

A statute cannot be said to be retrospective ''because a part of the requisites for its actions is drawn from a time antecedent to its passing. (Maxwell on Interpretation of Statutes, 11th Edition, p. 211 : see also The State of Maharashtra Vs. Vishnu Ramchandra, .

Looking at the words or the section and giving them their plain and natural meaning we find it impossible to say that pecuniary resources and property acquired before the date on which the Prevention of Corruption Act came into force should not be taken into account even if in possession of the accused or any other person on his behalf. To accept the contention that such pecuniary resources or property should not be taken into consideration one has to read into the section the additional word ''if acquired after the date of this Act'' after the word ''property''. For this there is no justification.

In the case of S.S. Gadgil, Income Tax Officer, Bombay Vs. Lal and Company, the Supreme Court observed at page 177, para 13:

The Legislature has given to Section 18 of the Finance Act, 1956, only a limited retrospective operation i.e. upto April 1st, 1956, only. That provision must be read subject to the rule that in the absence of any express provision or clear implication, the legislature does not intend to attribute to the amending provision a greater retrespectivity than is expressly mentioned, nor to authorise the income tax Officer to commence proceedings which before the new Act came into force had by the expiry of the period provided, become barred.

Again in the case of Rattan Lal Vs. State of Punjab, the Supreme Court observed at page 446 and 447 paras 6 and 7;

...Every law that takes away or impairs a vested right is retrospective. Every ex-post facto law is necessarily retrospective. Under Article 20 of the Constitution, 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 charged as 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.

But an ex-post facto law which only mollifies the rigour of a criminal law does not fall within the said prohibition. If a particular law makes a provision to that effect, though retrospective in operation, it will be valid. The question whether such a law is retrospective and, if so, to what extent depends upon the interpretation of a particular statute, having regard to the well settled rules of construction. Maxwell in his book ''on Interpretation of Statute'' 11th Edition, at pp 274-275, summarises the relevant rule of construction thus:

The tendency of modern decisions, upon the whole, is to narrow materially the difference between what is called a strict and a beneficial construction. All studies are now construed with a more attentive regard to the language, and criminal statutes with a more rational regard to the aim and intention of the legislature, then formerly, It is unquestionably right that the distinction should not altogether erased from the judicial mind, for it is required by the spirit of our free institution that the interpretation of all statutes should be favourable to personal liberty, and this tendency is still evinced in a certain reluctance to supply the defects of language, or to eke out the meaning of an obscure passage by strained or doubtful influences. The effect of the rule of strict construction might almost be summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. But it yields to the paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischiefs aimed at are, if the language permits, to be held to fail within its remedial influence.

Let us now proceed to consider the question raised in the present case. This is not a case where an act, which was not an offence before the Act, is made an offence under the Act; nor this is a case where under the Act a punishment higher than that obtaining for an offence before the Act is imposed. This is an instance where neither the ingredients of the offence nor the limits of the sentence are disturbed, but a provision is made to help the reformation of an accused through the agency of the Court. Even so the statute affects an offence committed before it was extended to the area in question. It is, therefore, a post facto law and has retrospective operation. In considering the scope of such a provision we must adopt the rule of beneficial construction as enunciated by the modern trend of judicial opinion without doing violence to the provisions of the relevant section.

In the case of Bishun Narain Mishra Vs. State of Uttar Pradesh and Others, the Supreme Court observed at page 1569 para 6:

The next contention on behalf of the Appellant is that the rule is retrospective and that no retrospective rule can be made. As we read the rule we do not find any retrospectivity in it. All that the rule provides is that from the date it comes into force the age of retirement would be 55 years. It would, therefore, apply from that date to all Government servants, even though they may have been recruited before May 25,1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all Government servants even though they were recruited before 1957. But it is urged that the proviso shows that the rule was applied retrospectively. We have already referred to the proviso which lays down that Government servants who had attained the age of 55 years on or before June 17, 1957, and had not attained the age of 58 years on May 25, 1961 would be deemed to have been retained in service after the date of superannuation, namely, 55 years. This proviso in our opinion does not make the rule retrospective; it only provides as to how the period of service beyond 55 years should be treated in view of the earlier rule of 1957 which was being changed by the rule of 1961.

In the case of Smt. Dayawati and Another Vs. Inderjit and Others, the Supreme Court observed at page 1426 para 10:

Now as a general proposition, it may be admitted that ordinarily a Court of appeal cnnnot take into account a new law brought into existence, after the judgment appealed from has been rendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit. Even before the days of Coke, whose maxim-a new law ought to be prospective, not retrospective in its operation is off-quoted. Courts have looked with disfavour upon laws which take away vested rights or affect pending cases. Matters of procedure are, however, different and the law affecting procedure is always retrospective. But it does not mean that there is an absolute rule of invioability of substantive rights. If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance. The distinction between laws affecting procedure and those affecting vested rights does not matter when the Court is invited by law to take away from a successful Plaintiff, what he has obtained under a judgment. See Qufileter v. Mapleson (1882) 9 QBD 672 and Stovin v. Fairbrass (1919) 88 LJKB 1004 , which are instaces of new laws being applied. In the former the vested rights of the landlord to recover possession and in the latter the vested right of the statutory tenant to remain in possession were taken away after judgment. See also Maxwell Interpretation of Statutes (11th Edition pages 211 and 213, and 213, and AIR 1936 49 (Privy Council) , where no saving in respect of pending suits was implied when section (26 (N) and (O) of the Bihar Tenancy Act (as amended by Bihar Tenancy Amendment Act, 1934) were clearly applicable to all cases without exception.

In the case of Keshavlal Jethalal Shah Vs. Mohanlal Bhagwandas and Another,

...In Indira Sohanlal Vs. Custodian of Evacuee Property, Delhi and Others, , the Court was dealing with a case in which by amendment of statute, the finality which would but for the amendment have attached was taken away before the order was made. This Court in Dafedar Niranjan Singh and Another Vs. Custodian, Evacuee Property (PB.) and Another, Indira Sohanlal Vs. Custodian of Evacuee Property, Delhi and Others, and held that an order which had become final under a provision of the law could not be affected retrospectively under an Amending Act so as to deprive the order of its finality acquired under the original provision. In Dafedar Niranjan Singh and Another Vs. Custodian, Evacuee Property (PB.) and Another, ...This Court held that since order had become final in exercise of the jurisdiction subsequently conferred, in the absence of any positive indication giving Section 58(3) retrospective operation, the finality of the previous order could not be taken away.

Counsel for the Respondent relied upon a judgment of this Court in Moti Ram Vs. Suraj Bhan and Others, in which following Indira Sohanlal Vs. Custodian of Evacuee Property, Delhi and Others, it was held that the High Court could, in exercise of jurisdiction under an Amending Act enacted after the litigation was commenced, set aside an order which according to the law in force at the date when the litigation was commenced, was not subject to the jurisdiction of the High Court.

The Legislature expressly sought to confer upon the High Court power to reopen questions which till then were to be deemed finally decided.

In the case of Katikara Chintamani Dora and Others Vs. Guntreddi Annamanaidu and Others, . the Supreme Court observed at page 1081 and 1082 paras 64 and 65:

64 The second principle- to recall the words of Bowen, J., in Reid v. Reid, (1886)31 Ch D 402 at page 408 is that in construing statute or (a section in a statute) which is to a certain extent retrospective, we ought nevertheless to bear in mind maxim (that is, except in special cases, the new law ought to be construed so as to interfere as little as possible with vested rights) as applicable whenever we reach the line at which the words of the section cease to be plain. That is a necessary and logical corollary of the general proposition that you ought not to give a larger retrospective power to a section even in an Act which is to some extent intended to be retrospective, than you can plainly see the legislature meant.

64... With the above principles in mind, let us now examine the provisions on the Amending Act 20 of 1960. In this Act, also, no back date for its commencement has been mentioned. It will, therefore, be deemed to have commenced on June 23, 1960, which is the date on which it was published in the Government Gazette.

In the case of Jose Da Costa and Another Vs. Bascora Sadasiva Sinai Narcornim and Others,

Before ascertaining the effect of the enactments aforesaid passed by the Central Legislature on pending suits or appeals, it would be appropriate to bear in mind to well-established principles. The first is that ''while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be taxtually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence Act the passing of the Statute are not to be applied retrospectively in the absence of express enactment or necessary intendment'' (See the AIR 1927 242 (Privy Council) .

The Supreme Court in the case of the The Government of Andhra Pradesh and Another Vs. Hindustan Machine Tools Ltd., said at page 2041 para 8:

... The power of the Legislature to pass a law postulates the power to pass it prospectively as well as retrospectively, the one no less than the other. Within the scope of its legislative competence and subject to other constitutional limitations the power of the Legislature to enact Jaws is plenary. In AIR 1941 16 (Federal Court) Owya, C.J. while repelling the argument that Indian Legislatures had no power to alter the existing laws retrospectively observed that within the limits of their powers the Indian Legislatures were as supreme as sovereign as the British Parliament itself and that, those powers were not subject to the (strange and unusual) prohibition against retrospective legislation. "The power to validate a law retrospectively is, subject to the limitations aforesaid, an ancillary power to legislate on the particular subject.

In the case of Sri Vijayalakshmi Rice Mills, New Contractors Co. and Others Vs. State of Andhra Pradesh, the observations made by the Supreme Court at page 1473 para 5 as follows:

... It is a well recognised rule of interpretation that in the absence of express words or appropriate language from which retrospectivity may be inferred, a notification takes effect from the date it is issued and not from any prior date. The principle is also well settled that statutes should not be construed so as to create new disabilities or obligations or imposed new duties in respect of transactions which were complete at the time the Amending Act came into force (See Nani Gopal Mitra Vs. The State of Bihar, .

The Supreme Court in the case of Municipal Corporation for The City of Poona and Another Vs. Bijlee Products (India) Ltd. and Others, said at page 309 para 10 (A):

...such an interpretation will be fully in consoance with the wellsettled rule of interpretation of statutes that any amendment to a statute affecting the legal rights of an individual must be presumed to be prospective unless it is made expressly or is impliedly retrospectively. This principle is contained in Section 7 of the Bombay General Clauses Act.

In the case of A.A. Calton Vs. Director of Education and Another, the Supreme Court said at page 1145 para 5:

...It is true that the Legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the Statute either expressly or by necessary implication directs that it should have such retrospective effect.

In the case of Punjab University Vs. Subash Chander and Another, the Supreme Court observed at page 1419 para 11:

... Retrospective'' according to the Shorter Oxford English Dictionary, 3rd Edition, in relation to Statues etc. means ''Operative with regard to first time''...

In the case of Prabhakar Rao and Ors. v. State of Andhra Pradesh and Ors. (AIR 1983 S.C. 210) the Supreme Court said at page 227 page 22:

... While it is a general rule of law that statutes are not to operate retrospectively, they may so operate by express enactment, by necessary implication from the language implied or where the statute is explanatory or declaratory or where the statute is passed for the purpose of protecting the public against some evil or abuse or, where the statute engrafts itself upon existing situation etc. But it would be incorrect to call a statute ''retrospective'', ''because a part of the requisites for its action is drawn from a time antecedent to its passing,. (Vide R. v. St. Mary Whitechapel (In habitants) (1848) 12 QB 120). We must further remember, quite apart from any question of retrospectivity, that, unlike in the United Kingdom here in India we have a written constitution which confers justiciable fundamental rights and so the very refusal to make an Act retrospective or the non-application of the Act with reference to a date or to an event that took place before the enactment may, by itself, create an impermissible classification justifying the striking down of the non-retroactivity or non-application clause, as offending the fundamental, right to equality before the law and the equal protection of the laws. That is the situation that we have here.

In the aforesaid Bachan Singh and Another Vs. Chhotu Ram and Others, again the Supreme Court in the case of Bachan Singh and Anr. v. Chhotu Ram and Ors. at page 1911 para 8:

In view of the categorical indication that Section 15 was retrospective, it must follow that the newly inserted clause Fourthly in Section 15(1)(a) of the Act was in existence at all relevant times. So far as facts of this case are concerned, the Plaintiffs must be presumed to have had a right to pre-empt on the date of sale. Admittedly, the suit was filed subsequent to the amendment. It is a wellsettled principle of law that when the legislature makes provision for a deeming situation to give effect to the mandate of the legislature, all things necessary to effectuate the retrospective intention must be deemed to have existed....

In the case of the Sales Tax Officer, Ward II Moradabad and Ors. v. Oriental Coal Corporation Muradabad : AIR 1988 S.C. 648) the Supreme Court observed at page 554 para 9:

The contention that the amendment is purely procedural is also misconceived. Assuming the correctness of the contention that a purely procedural amendment should ordinarily be construed to be retrospective, we are unable to agree that the present amendment is of such nature...

The Supreme Court in the case of Controller of Estate Duty, Gujarat I, Ahmedabad Vs. M.A. Merchant, Accountable Person of Late Shri A.G. Merchant, Majirajwadi Road, Bhavnagar and Others, held at page 1712 in para 7:

As it stands there are no specific words either which confer retrospective effect to Section 59. To spell out retrospectivity in Section 59, then, there must be something in the intent to Section 59 from which retrospective operation can be necessarily inferred. We are unable to see such intent. The new Section 59 is altogether different from the old Section 62 and there is nothing in the new Section 59 from which an intent to give retrospective effect to it can be concluded.

In the case of Gurbachan Singh Vs. Satpal Singh and others,

The provisions of the said Section do not create any new offence and as such it does not create any substantial right but it is merely a matter or procedure of evidence and as such it is retrospective and will be applicable to this case. It is profitiable to refer in this connection to Halsbury''s laws of England. (Fourth Edition), Volume 44 page 570 wherein it has been stated that:

The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature...

It has also been stated in the said volume of Halsbury''s Law of England at page 574 that:

The presumption against retrospection, does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament.

In Blyth v. Blyth, 1966 AC 643 the wife left the husband in 1954 and lived with the co-Respondent until August, 1955, when she broke off the association. In 1958 the husband and wife met by chance and sexual intercourse took place. In December, 1962 the husband sought a divorce on the ground of his wife''s adultery. During the pendency of the application Section 1 of the Matrimonial Cause Act, 1962 came into force on July 31, 1963 which provided that any presumption of condonation which arises from the continuance or resumption of material intercourse may be rebutted on the part of a husband, as well as on the part of a wife, by evidence sufficient to negative the necessary intent. The question arose whether this provision which came into force on July 31, 1963 can be applied, in the instant case. It was held that the husband''s evidence was admissible in that Section 1 of the Act of 1963 only altered the law as to the admissibility of evidence and the effect which the Court are to give to evidence, so that the rule against giving retrospective effect to Act of Parliament did not apply.

In Herridge v. Herridge (1966) All ER 93 similar question arose. It was held that Section 2 (1) of the Act of 1963 was a procedural provision, for it dealt with the adducing of evidence in relation to an allegation of condonation in any trial after July 31, 1963; accordingly the Sub-section was applicable, even though the evidence related to events before that date and the resumption of co-habitation in the present case did not amount, by reason of Section 2(1), to condonation.

As regards the provisions contained in Section 498A of the Indian Penal Code and Section 113A of the Evidence Act they came into operation with effect from 25.12.1983. Section 498A of the I.P.C. deals with the cruelty to the woman by her husband or his relations. Cruelty of her husband has also been defined under the explanation. Section 113A of Evidence Act deals with the presumption as the abetement of suicide by a married woman and in that one period of seven years from the date of the marriage has to be considered in respect of cruelty. In the section also cruelty has the same meaning as u/s 498A I.P.C. Thus Section 498A of the I.P.C. and Section 113A of the Evidence Act can look the past incidents of the cruelty within seven years of the marriage and that too prior to 25th December, 1983 could be looked into for the consideration of the question of cruelty. These provisions have been brought to check the corrupt evil, attrocity and cruelty upon married woman. It is being a social legislation for the benefit of the tortured woman. The past events, therefore, have to be looked to come to the conclusion about the events leading to action for punishment for cruelty over woman. Even if the action has been brought before Coming into force of this provision, yet the enforcement of this provision even after action having been brought will give benefit to the tortured, illtreated married woman.

A learned single Judge of Bombay High Court in the case of Vasanta Tulshiram Bhoyar v. State of Maharashtra (1987 Cri.L.J. 901) while dealing with this aspect has also observed that the past events of the cruelty taken place prior to the amendment can be considered and that does not amount to give retrospective operation to the amended provision. It has been said at page 90 paras 8 and 9:

Looking to the language of the provision u/s 113A, Evidence Act, a legal presumption has been introduced if a married woman commits suicide within a period of seven years from the date of her marriage. The period of seven years itself is suggestive of the consideration of past period before the introduction of this section. Therefore, a plain reading of this provision permits to draw the instances of cruelty even prior to the date of commencement of this provision. It is therefore permissible for a Court enquiring a case to look into the past conduct prior to the commencement date of the amended provision. It clearly authorises the Court to base its conclusions on the past instances of cruelty. The legal presumption provided under this provision clearly include the past instances of cruelty spread over a period of seven years from the date of marriage of the victim.

The language and purport of the provision u/s 498A I.P.C , introduced by the amendment on 25th Dec , 1983 clearly speaks of past conduct which drives a woman to commit suicide at a later date. The construction of this section crearly discloses that if a cruelty within the meaning of Section 498A committed on a married woman drives her to commit suicide or to cause to give injury or danger to life, limb or health, the person guilty of such wilful conduct is liable for punishment. The act of suicide or causing grave injury or danger to her life is meant as a result of the past events.

Thus from the above it is clear that though these provisions are not retrospective but past events of seven years from the marriage can be looked into and even that action has been brought before the coming into operation of these amendments i.e. 23.12.1983, yet after the amendment the benefit of the section can be given to the married woman who has been subjected to cruelty and attrocities perpetuating upon her by her husband or relations.

From the above it is apparent that the Court below has erred in holding that the event could not be looked into, or that the operation of these amended Sections 498A I.P.C. or 113A of the Evidence Act was not applicable to case of the Petitioner. But the material which the Petitioner has brought on the record apparently shows that she has been subjected to torture and illtreatment which has to be judged by the Court below after considering the entire material on the record.

In the result, this application is allowed, the order of the Court below is set aside and the case is remanded to the Court below to decide the same expeditiously in light of the observations made above. The interim order dated 30.3.1990 is vacated and the record is directed to be sent back to the Court below immediately.