1. This is a reference made by my learned brother Soni J. by his order dated 13-10-1952, and the point for determination is whether amendment of Section 5, Prevention of Corruption Act (Act 2 of 1947) which was made by Section 4, Prevention of Corruption (Second Amendment) Act, 1952, and enacted on 12-8-1952, has retrospective effect.
2. The offence which the petitioner is alleged to have committed consisted in the fact that he embezzled Rs. 247/11/3 which he had drawn for an electricity bill dated 2-6-1950, and which was shown in the cash book on 8-9-1950, as having been paid but was in fact not paid by him. The case was instituted in the Court on 19-7-1951. Before this a judgment of this Court which is reported as -- 'State v Gur-charan Singh', AIR 1952 Punj 89 (A) held that Section 5 (1) (c), Prevention of Corruption Act, (Act 2 of 1947) had 'pro tanto' repealed Section 409, I. P. C., in regard to public servants. This judgment was given on 5-12-1950, and had been published in the Punjab Law Reporter some time before the institution of the proceedings against the petitioner.
2a. By the Second Amendment Act 59 of1952 which was made in the Prevention ofCorruption Act the following amendment wasmade by Section 4 of the Act of 1952-
'5 (4) The provisions of this section shall bein addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, be instituted against him.'
The question to be determined is whether this sub-section is retrospective in its operation. As I read the section it appears to me to be prospective and not retrospective. The second portion says, 'and nothing contained herein shall exempt any public servant from any proceeding which might, apart from this section, 'be instituted against him'.' The statutes, such as the one before us, are usually not retroactive. According to Maxwell's Interpretation of Statutes page 221 it is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.
Wright J. said -- 'in re Athlumney', (1898) 2 QB 547 at pp. 551, 552 (B):
'No rule of construction is more firmly established than this; that a retrospective operation is not to be given to a statute so as to impair an existing right Or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.'
3. Quite recently in--'Rex v. Oliver', (1944) 1 KB 68 (C) the Court of Appeal had to interpret a regulation which was in the following words-
'Any person guilty of an offence against this regulation being a breach of the control or an offence referred to in para. (IB) or (1C) of this regulation, shall be liable x x (b) on conviction on indictment to certain penalties.'
4. Viscount Caldecote C. J. delivering the judgment of the Court said at p. 75--'The contention on behalf of the appellant was that, although the words 'any person guilty of an offence' are capable of including a person who has committed an offence before the making of the order, yet the words are not so clear as to require this construction necessarily to be placed on them, and that, therefore, they ought not to be held to operate retroactively.' The learned Lord Chief Justice approved of the judgment of the Divisional Court in --'Buckman v. Button', (1943) KB 405 (D).
5. The learned Assistant Advocate-General Mr. Chawla submitted that the words 'be instituted against him' are retroactive, but in order to give that interpretation We shall have to add the words 'be or has been instituted'' and I do not think it is a case of 'casus omissus'.
6. Mr. Chawla then referred to a judgment of the Federal Court in -- 'Lachmeshwar Prasad v. Keshwar Lal', AIR 1941 FC 5 (E), and submitted that this Court should take into account the new legislative enactment and upheld the conviction. He contends that as this Act has come into force during the pendency of the proceedings and as the proceedings in this Court are a rehearing he can take advantage of the new legislative enactment. The case that he has relied upon was of a different nature. Certain appellants before the Federal Court sought to claim the benefits of Section 7, Bihar Money-Lenders (Regulations of Transactions) Act, 1939, which had come into force during the pendency of the appeal in the High Court. No doubt their Lordships held that appeal was a rehearing and that it was the duty of the Court to administer the law of the land 'at the date when the Court is administering it,' but in that case also Section 7, Money-Lenders Act, 1939, had in terms been made retrospective and it was for that reason that it was allowed to he taken advantage of by the appellants. 'Lachme-shwar Prasad Shukul's case' (E) therefore can be of no assistance to the State. In this view of the matter I do not think that the legislature has provided for any retroactive validation of proceedings taken under Section 409, I. P. C., which section this Court had held to be 'pro tanto' repealed because of Section 5 (1) (c), Prevention of Corruption Act (Act 2 of 1947).
7. I would, therefore, allow this petition, set aside the order of conviction and make the rule absolute. The bail bonds shall stand cancelled.
8. I agree.