INTERPRETATION OF PENAL STATUTES
Introduction
In a penal law if there appears to be a reasonable dubiety or ambiguity, it shall be decided in favour of the person who would be liable to the penalisation. If a penal provision fairly be so construed as to avoid the punishment, it must be so interpreted. If there can be two reasonable interpretations of a penal provision, the more lenient should be made applicable. Punishment can be meted to one only if the plain words extension of the meaning of the word is allowable. A penalty cannot be imposed on the basis that the object of the statute so desired. According to Maxwell[1], “the prerequisite of express language for the creation of an offence, in interpreting strictly words setting out the elements of an offence in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in insisting on the strict observance of technical provisions concerning criminal procedure and jurisdiction.”
Unless the words of a statute clearly made an act criminal, it shall not be construed as criminal. If there is any ambiguity in the words which set out the elements of an act or omission declared to be an offence, so that it is doubtful whether the act or omission falls within the statutory words, the ambiguity will be resolved in favour of the person charged.[2] The court will inflict punishment on a person only when the circumstances of the case fall unambiguously fall under the letter of the law. Legislation which deals with the jurisdiction and the procedure relation to imposition of the penalties will be strictly construed. Where certain procedural requirements have been laid down by a statute to be completed in a statute dealing with punishments, the court is duty bound to see that all these requirements have been complied with before sentencing the accused. In case of any doubt the benefit has to go to the accused even up to the extent of acquitting him on some technical grounds.[3]Penal provision cannot be extended by implication to a particular case or circumstances. The rule exhibits a preference for the liberty of the subject and in a case of ambiguity enables the court to resolve the doubt in favour of the subject and against the Legislature which has failed to express itself clearly, but this rule is now-a-days of limited application.[4] The rule was originally evolved to mitigate the rigours of monstrous sentences of trivial offences and although the necessity and that strictness have now vanished, the difference in approach made to penal statute as against any other statute still persists.[5]
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GENERAL RULE
If a statute laid a mandatory duty but provided no mode for enforcing it, the presumption in ancient days was that the person in breach of the duty could be made liable for the offence of contempt of the statute.[6] This rule of construction is obsolete and now has no application to a modern statute. Clear language is now needed to create a crime. “A penal provision must be definite”[7]. It is a basic rule of legal jurisprudence that than an enactment is void for vagueness if its prohibitions are not clearly defined.[8] Pollock, CB said: “whether there be any difference left between a criminal statute and any other statute not creating offence, I should say that in criminal statute you must be quite sure that the offence charged is within the letter of the law.”[9]
In the case of Feroze N. Dotivalaz v. P.M Wadhwani and co.,[10] this court stated: “Generally, ordinary meaning is to be assigned to any word or phrase used or defined in a statute. Therefore, unless there is any vagueness or ambiguity, no occasion will arise to interpret the term in a manner which may add something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly, where it is a restrictive definition. Unless there are compelling reasons to do so, meaning of a restrictive and exhaustive definition would not be expanded or made extensive to embrace things which are strictly not within the meaning of the word as defined.”
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In Anup Bhushan Vohra v. Registrar General, High Court of Judicature at Calcutta on (16 September, 2011)[11] the Apex Court held that the contempt proceedings being quasi-criminal in nature, burden and standard of proof is the same as required in criminal cases. The charges have to be framed as per the statutory rules framed for the purpose and proved beyond reasonable doubtkeeping in mind that the alleged contemnor is entitled to the benefit of doubt. Law does not permit imposing any punishment in contempt proceedings on mere probabilities; equally, the court cannot punish the alleged contemnor without any foundation merely on conjectures and surmises. As observed above, the contempt proceeding being quasi-criminal in nature require strict adherence to the procedure prescribed under the rules applicable in such proceedings.
A man should not be goaled on ambiguity. Lord Esher, MR in formulating “the settled rule of construction of penal sections” observed “if there is a reasonable interpretation which will avoid the penalty in any particular case we must adopt that construction. If there are two reasonable constructions then we must give the lenient one.[12] The rule has been stated by Mahajan, CJI in similar words: “If two possible and reasonable constructions can be put upon a penal provision, the court must lean towards the construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the court to stretch the meaning of an expression used by the legislature in order to carry out the intention of the legislature.”[13]
A Three-Judge Bench of this Court in the case of The Assistant Commissioner, Assessment-II, Bangalore and Ors. v. Valliappa Textiles Ltd. and Ors.[14], laid down:- “…Though Javali (supra) also refers to the general principles of interpretation of statute the rule of interpretation of criminal statutes is altogether a different cup of tea. It is not open to the court to add something to or read something in the statute on the basis of some supposed intendment of the statute. It is not the function of this Court to supply the casus omissus, if there be one. As long as the presumption of innocence of the accused prevails in this country, the benefit of any lacuna or casus omissus must be given to the accused. The job of plugging the loopholes must strictly be left to the legislature and not assumed by the court.
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So when a statute dealing with criminal offence impinging upon the liberty of citizens, a loophole is found, it is not for judges to cure it, for it is dangerous to derogate from the principle that a citizen has a right to claim that howsoever his conduct may seem to deserve punishment, he should not be convicted unless that conduct falls fairly within definition of crime of which he is charged.[15] The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in the meaning broader than that they would ordinarily bear.[16] There is all the more reason to construe strictly a drastic penal statute which deals with crimes of aggravated nature which could not be effectively controlled under the ordinary criminal law[17].
While interpreting penal statutes, it is clear that any reasoning which is based on the substance of the transaction has to be discarded.[18]It is the duty of the courts to apply the purpose enshrined in the unambiguous language used by the Legislature irrespective of the fact that the statute to be interpreted is a penal law.[19] The courts are not allowed to give a wider meaning when the legislature has already provided a comprehensive provision in the statute itself.
In a very recent matter of State of Rajasthan v. Vinod Kumar(on 18 May, 2012)[20] the Apex Court has observed: – “awarding punishment lesser than the minimum prescribed under Section 376 IPC, is an exception to the general rule. Exception clause is to be invoked only in exceptional circumstances where the conditions incorporated in the exception clause itself exist. It is a settled legal proposition that exception clause is always required to be strictly interpreted even if there is a hardship to any individual. Exception is provided with the object of taking it out of the scope of the basic law and what is included in it and what legislature desired to be excluded. The natural presumption in law is that but for the proviso, the enacting part of the Section would have included the subject matter of the proviso, the enacting part should be generally given such a construction which would make the exceptions carved out by the proviso necessary and a construction which would make the exceptions unnecessary and redundant should be avoided. Proviso is used to remove special cases from the general enactment and provide for them separately. Proviso may change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable.[21]”
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In this matter the sentence of the respondents was reduced by the Hon’ble Rajasthan High Court to a lesser punishment than that prescribed under Section 376 as mandatory unless the exception is strictly complied with. The Apex Court observed that awarding punishment lesser than the minimum sentence of 7 years was permissible only for adequate and special reasons. However, no such reasons have been recorded by the court for doing so, and thus, the court failed to ensure compliance of such mandatory requirement but awarded the punishment lesser than the minimum prescribed under the IPC. Such an order is violative of the mandatory requirement of law and has defeated the legislative mandate. Deciding the case in such a casual manner reduces the criminal justice delivery system to mockery.
PURPOSIVE INTERPRETATION APPROACH
It is not necessary that courts must always favour the interpretation which is favourable to the accused and not the prosecution but it may also chose to go for the interpretation which is consistent with the object provided in the law. In State of Maharashtra v. Tapas D. Neogy[22] the expression ‘any property’ in section 102 of Cr.P.C. was interpreted to be inclusive of a ‘bank account’ and hence a police officer who was investigating the matter was justified in seizing the same. This principle was first explained by James, L.J. who stated: “No doubt all penal statutes are to be construed strictly, that is to say that the court must see that the thing charged as an offence is within the plain meaning of the word used, and must not strain the words on any notion that there has been a slip; that there has been a casus omissus; that the thing is so clearly within the mischief that it must have been included if thought of.
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In the case of Union of India v. Harsoli Devi[23], a Constitution Bench of this court laid down: – “Before we embark upon an inquiry as to what would be the correct interpretation of Section 28- A, we think it appropriate to bear in mind certain basic principles of interpretation of statute. The rule stated by Tindal, CJ in Sussex Peerage case, (1844) 11 Cl & p.85, still holds the field. The aforesaid rule is to the effect: “If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver.””
It is a cardinal principle of construction of statute that when language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act.
In Kirkness v. John Hudson & Co. Ltd.[24], Lord Reid pointed out as to what is the meaning of ‘ambiguous’ and held that – “a provision is not ambiguous merely because it contains a word which in different context is capable of different meanings and it would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning.” It is no doubt true mat if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute.
Although, the person charged has a right to say that the thing charged although within the words, is not within the spirit of enactment. But where the thing is brought within the words, and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair commonsense meaning of the language used, and the court is not to find or make any doubt or ambiguity in the language of the penal statute, where such a doubt or ambiguity would clearly not be found or made in the same language in any other enactment.”[25] Subbarao, J., has observed: “the Act (Prevention of Corruption Act, 1947) was brought in to purify public administration.
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When the legislature used the comprehensive terminology- to achieve the said purpose, it would be appropriate not to limit the content by construction when particularly the spirit of the statute is in accord with the words used there.”[26] On the same lines Hon’ble Supreme Court had widely interpreted the Food Adulteration Act, 1954, while expressing the strong disapproval of the narrow approach of construction to ensure that the adulterators do not exploit the loopholes in the Act.[27] Similarly, such pedantic interpretation has not been given in the cases relating to section 498A of Indian Penal Code[28], section 12(2) of Foreign Exchange Regulation Act, 1947[29] etc. The laws which have been framed for supporting the cause of offences against women have to be sternly implemented to set an example before the others which may deter the prospective criminals.[30]
SUPPRESSION OF THE MISCHIEF
The language of the penal statute can also be interpreted in a manner which suppresses the lacuna therein and to sabotage the mischief in consonance with the Heydon’s Case.[31] For instance in Ganga Hire Purchase Pvt. Ltd. Vs. State of Punjab[32], while interpreting the section 60(3) of Narcotic Drugs and Psychotropic Substances Act, 1985, the word ‘owner’ was given a wider meaning for the purpose of confiscation of the vehicle used in furtherance of the offence mentioned therein i.e. inclusive of the registered owner where the vehicle was purchased under a hire purchase agreement when all the instalments were not paid by him.
In the matter of Manjit Singh @ Mange vs C.B.I.[33]( 25 January 2011), Hon’ble Supreme Court discussed the interpretation of Terrorist and Disruptive Activities (Prevention) Act, 1987 in light of the aforesaid principle. It was argued by Senior Advocate Mr. K.T.S. Tulsi, that prior approval was required to be taken from the Superintendent of Police of the District, as required under Section 20-A[34] of the TADA Act, to try the accused for the offences under the TADA Act and the Superintendent of Police, CBI was not the competent authority to give such permission. Learned senior counsel submitted that the confessional statement of the co- accused because no prior approval from the prescribed authority, as required under Section 20A of the TADA Act, had been obtained. He also submitted that the penal provisions require to be strictly construed. Shri P.P. Malhotra, learned Additional Solicitor General, submitted that when the investigation is transferred to the CBI, with the consent of the State, the CBI takes over further investigation of the case. Therefore, Superintendent of Police, CBI, was competent to record the confession made by a person and the same is admissible in the trial of such person for an offence under the TADA Act. He further submitted that the confessional statement of co-accused recorded before S.P., C.B.I., was admissible in evidence vide Section 15 of the TADA Act, which provides for the recording of the confessional statements before the police officer, not lower in the rank than Superintendent of Police, and it is made admissible even against co-accused, abettor or conspirator and the bar under the Evidence Act and Criminal Procedure Code will not come into play.
The Hon’ble Court observed that confessional statement is a substantive piece of evidence and can be used against the co- accused by following the interpretation provided in S.N. Dube vs. N.B. Bhoir[35], where the Apex Court observed that “Section 15 of the TADA Act is an important departure from the ordinary law and must receive that interpretation which would achieve the object of that provision and not frustrate or truncate it and that correct legal position is that a confession recorded under Section 15 of the TADA Act is a substantive piece of evidence and can be used against a co- accused also, if held to be admissible, voluntary and believable.”
Mr. Tulsi used various judgments of the Apex Court including Dadi Jagganadhan v. Jammulu Ramulu and Ors.[36], where a Constitution Bench of this court observed: – “…The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature’s defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.The learned counsel contended that under Section 20A of the TADA, the sanction of the District Superintendent of Police is required to be obtained before the police record any information about the commission of an offence under the TADA. Since the same has not been obtained, the conviction of the accused cannot be sustained. In the instant case, according to the learned counsel, the sanction was obtained from the S.P., C.B.I.
But the Hon’ble Court held that the phrase “District SP” has been used in order to take the sanction of a senior officer of the said district, when the prosecution wants to record any commission of a offence under the Act, the reason appears to be that the Superintendent of Police of the District is fully aware of necessity to initiate the proceedings under the stringent criminal law like the TADA Act. In the instant case, the State Government, in exercise of the power conferred by Section 3 of the Delhi Police Special Establishment Act, 1946, has handed over the investigation to CBI. The Hon’ble Court was inclined to hold that in matters concerning national security, as is the case of terrorist acts, the Centre and an autonomous body functioning under it would be better equipped to handle such cases. Therefore, `prior approval’ by the SP of CBI would adequately satisfy the requirements under Section 20A (1).
Similarly in the leading matter of Reema Aggarwal v. Anupam Aggarwal[37], a broader meaning was attributed to the application of sections 304B and 498A of the Indian Penal Code, in light of the broader purpose which was sought to be achieved through these provisions and the mischief which was required to be cured. It was also made applicable to the case where the legitimacy of the marriage itself was in question to bring the accused within the purview of the word ‘husband’ as used in the said provisions.
In Abhay Singh Chautala vs C.B.I. (on 4 July, 2011)[38] the learned Senior Counsel Shri Mukul Rohtagi as well as Shri U.U. Lalit arguing for the appellants, urged that on the day when the charges were framed or on any date when the cognizance was taken, both the appellants were admittedly public servants and, therefore, under the plain language of Section 19 (1) of The Prevention of Corruption Act, the Court could not have taken cognizance unless there was a sanction from the appropriate government. The learned senior counsel analyzed the whole Section closely and urged that in the absence of a sanction, the cognizance of the offences under the Prevention of Corruption Act could not have been taken. It was also urged that a literal interpretation is a must, particularly, to sub- Section (1) of Section 19. But the Apex Court observed- : “…we, therefore, reject the theory of litera regis while interpreting Section 19(1)… However, as per the interpretation, it excludes a person who has abused some other office than the one which he is holding on the date of taking cognizance, by necessary implication. Once that is clear, the necessity of the literal interpretation would not be there in the present case we specifically hold that giving the literal interpretation to the Section would lead to absurdity and some unwanted results … hold that the appellants in both the appeals had abused entirely different office or offices than the one which they were holding on the date on which cognizance was taken and, therefore, there was no necessity of sanction under Section 19.”
Conclusion
After the detailed analysis of various methods of interpreting a penal statute in the paper we can broadly categorize the method of interpretation by concluding that firstly the basic rule of interpreting such laws is to strictly adhere to the language of the statute since it is the will of the legislature and the court should restrain itself from stretching the meaning of the words causing unnecessary hardships to the subjects. Secondly it must be always kept in mind that what is the purpose for which the enactment seeks to achieve and if a strict adherence is done will it be able to achieve that purpose or object.Thirdly and lastly whether by such an interpretation the mischief which was sought to be suppressed by the penal law was suppressed and if not then it is the duty of the court to ensure that it is done and just because of the Legislature’s omission, the injustice to the society should not be administered.
[1] Interpretation of Statute, Twelfth edition, pp. 239-240
[2] N.K. Jain v. C.K. Shah, AIR 1991SC 1289.
[3] T. Bhattacharya, Interpretaion of Statutes, V Ed., Cental Law Agency, 2003.
[4] G P Singh, Principles of Statutory Interpretation, XIII Ed., Lexis Nexis Butterwoths Wadhwa, 2012, p. 845.
[5] Ibid.
[6] R. v. Horseferry Road Magistrate’s Court, (1986) 2 All ER 666.
[7] State of Kerela v. UNNI AIR 2007 SC 819.
[8] Kartar Singh v. State of Punjab AIR 1994 SC 569.
[9] A.G. v. Sillem, (1864) 33 LJ Ex 92, p.110.
[10] (2003) 1 SCC 14.
[11] http://indiankanoon.org/doc/625813/.
[12] Tucker and Sons v. Priester (1887) 19 QBD 629.
[13] Tolaram v. State of Bombay, AIR 1954 SC 496.
[14] AIR 2004 SC 86.
[15] Spicer v. Holt (1976) 3 All ER 71, pp. 78, 79 (HL)
[16] R. v. Cuthbertson (1980) 2 All ER 401, p. 404.
[17] NIranjan Singh Karan Singh Punjabi v. Jitendra Bhimraj Bijia, AIR 1990 SC 1962.
[18] Balaram Kumawat v. Union of India
[19] Thomson v. His Honour Judge Byrne, (1999) 73 ALJR 642.
[20] http://indiankanoon.org/doc/194417701/.
[21] Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal & Ors., (2011) 1 SCC 236.
[22] (1999) 7 SCC 685.
[23] (2002) 7 SCC 273.
[24] 1955 (2) ALL ERa 345.
[25] Dyke v. Elliot (1872) LR 4 PC 184.
[26] M. Narayan Nambiyar v. State of Kerala AIR 1960 SC 1116.
[27] Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929.
[28] State of Kerela v. M. Verghese, AIR 1987 SC 33.
[29] M.G. Wagh v. Jay Engineering Works Ltd., AIR 1987 SC 670.
[30] K.P.S. Rao v. Yadla Srinivasa Rao AIR 2003 SC 11.
[31] Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530.
[32] AIR 2000 SC 499.
[33] http://indiankanoon.org/doc/659925/
[34] Section 20-A: Cognizance of offence. – (1) notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police.
(2)……No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector General of Police or as the case may be, the Commissioner of Police.
[35] (2000) 2 SCC 254.
[36] AIR 2001 SC 2699.
[37] AIR 2004 SC 1418.
[38] http://indiankanoon.org/doc/1342360/.
