- (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Singh', AIR 1952 Punj 89 (A) held that Section 5 (1) (c), prevention of Corruption Act, (Act 2 of 1947) had 'pro tanto' repealed Section 409, I. P. C. , in regard to public servants.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 of 1952 which was made in the Prevention of Corruption act the following amendment was made by Section 4 of the Act of 1952- "5 (4) The provisions of this section shall be in 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. ";