Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:15:24 PM
1. Sections 6, 16, 21, and 26 of General Clauses Act and course as contained in the book namely; Law of Interpretation by Maxwell and Craze.
1. Interpretation of Statutes by Muhammad Anwar Ghuman.
An offender cannot be punished twice for the same offence. Discuss it with reference to the law on the subject?
According to S. 26 of General Clauses Act, where an act is an offence under the provisions of two enactments, which are not in conflict with each other, prosecution could be resorted to under either of enactment. A person could be prosecuted and convicted both under the special enactment and also the general law, but he could be punished only once either under the former or the latter.
Act is no where defined. It must be necessarily be something sort of a transaction which is composed of a series of acts, but cannot, I think, in ordinary language, be restricted to every separate willed movement of a human being.
In the presence of the provisions contained in the said section, the principle of “generalia specialibus non derogant” (special thing derogates from general things) cannot be applied.
Where a new offence is created under any enactment, the accused must be dealt within accordance with the provisions of that enactment. Where on the other hand, a statute makes an act, already punishable under some former law, punishable and there is nothing in the later enactment to exclude the operation of the former one, then the accused person can be proceeded against under either of the enactments.
Indian Case - Rahmatullah v Emperor: In the said case the accused by one act restrained the police and endangered the lives of bystanders one offence is under the penal code and the other under the Railway Act. It was held that conviction under the Railway Act must be set aside. But the contention that because a special enactment dealing with an offence. Similar the offence dealt with by the IPC, the provision of the IPC should be taken to have been repealed to that extent is not acceptable.
S. 26 of General Clauses Act was enacted with a view to avoid implied repeal if the General Acts by the enactment of special Acts.
S. 26 only applies when an act or omission is constituted as offence by two or more different enactments. It makes no difference to the application of S. 26 that the procedure laid down in two enactments with regard to prosecution of an offences in different or even if different sections are provided in two enactments.
S. 26 does not act as a bar to trial or conviction but merely as a bar to duplicated punishment.
The broad proposition that S. 26 is ruled out when there is repealed of an enactment followed by a fresh legislation is not correct.
S. 26 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to or ascertained from a consideration of all the relevant provisions of the new law and the mere the sense of a saving clause is by itself not material.
S. 26 has, however no application if the offences are distinct, e.g., a person found in possession of stolen revolver may be tried punished both under penal laws and Arms Act. The important point to be noted is that it is not the same act or omission which constitute the offence under two enactments.
S. 26 is widen in scope under its corresponding S. 33, English Interpretation Act which says, “where an act or mission constitute an offence under two or more Acts, or both under an Act and at common laws, whether any such Act was passed before or after the commencement of this Act, the offender shall, under the contrary intention appears, believed to be prosecuted and punished under either or any of these Acts or common law, but shall not be liable to be punished twice for the same offence.”
S. 26 not only deals with an act which is an offence under the penal code, and under a special local Act, and an act which is an offence under two or more local Acts, but also it deals having regard and to the meaning of reenactment with an Act which is an offence under two or more sections of the enactments.
S. 403 of Code of Criminal Procedure also deals with the subject that person once convicted or acquitted not to be tried for the same offence again. Rule of double jeopardy applies here. It means that no one should be vexed (troubled, annoyed) twice for the same matter and contemplates of a situation where a person has once been tried by a Court of competent jurisdiction and acquitted by such Court cannot be tried again for the same offence nor for any other offence based on similar facts. The principle underlying this section is founded on public policy. It is exhaustive on the subject to the effect of previous acquittal or conviction.
Criminal charge once having been adjudicated upon by a competent Court, that adjudication is final whether it ends in acquittal or conviction and it may be pleaded as a bar in a subsequent prosecution for the same offence whether charged with or without matters of mere aggravation, and whether such matter relate to the intent with which the offence was committed or to the consequence of the offence. Retrial of an offence in which a person who having once been tried as accused stands finally acquitted is not permitted.
S. 403 of Code of Criminal Procedure is based on the ancient maxim nemo debts bis vexari which means that a person cannot be tried a second time for an offence which is involved in the offence with which he was previously charged. The same principle autrefois acquit (formerly acquitted) and autrefois convict (formerly convicted) is prevailing in the common law. The section is based on the principle of no man’s life and liberty shall be twice put in jeopardy for the same offence on the same set of facts.
S. 403 of Code of Criminal Procedure alongwith S. 26 of General Clauses Act provides procedural shield. Conviction for the second time on the same facts is not legal. Accused having once been acquitted by a Court of competent jurisdiction and such finding having attained finality, his conviction on the same facts again by the Court is not permissible. When once a person was acquitted he could not be tried again and convicted. The whole basis of S. 403(1) is that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal. If the Court is not so competent it is irrelevant that it would have been competent to try other cases of other class or indeed the case against the particular accused in different circumstances, e.g., if a sanction has been obtained.
Res judicata: If an accused is tried on certain charges and acquitted, it will be clearly unjust and highly oppressive and amount to an abuse of the process of the Court to permit his repeated prosecution on identical evidence in respect of identical charges even though relating to different items.
Writ petition: Filing of successive writ petition on same cause of action is against the spirit of law and general principle of res judicata.
Benefit of doubt: Accused given benefit of doubt and acquitted, cannot be prosecuted for same offence a second time.
Industrial Relations Ordinance, 1969: Bar to second trial applicable not only for same offence but also to a second trial on same facts for any other offence.
Order of discharge on merits: An order of discharge which is passed on merits and which is not plainly or substantially an order passed in default, although it does not in law constitute a legal bar will practically have the same effect as an order of acquittal.
Rules of interpretation of Statutes: Following are the rules of the interpretation of Statues:
The subject of the interpretation of statues or Acts is very wide. The legislature makes the laws while the judges of the law courts apply or interpret the laws. Legislation or lawmaking is a very high prerogative vested only in the legislature. The function of a Judge is only to apply the law least concerned with the method adopted by the parliament or legislature of any country. And the Judge is also supposed not to be influenced by the fact as to how many votes were in favour of the enactment and how many votes were against it at the time when it was passed by the parliament.
Impartiality or neutrality is the indivisible virtue of a Judge in interpreting or applying the law to decide a case before him. The Judge or the Court has to seek the intention of the parliament in the course of application or interpretation of any law to a given case. In case there are two versions of an Act, one moral and other one is immoral. The Judge shall decide easily in accordance with the moral or positive version of the Act. And in case there is only one version, which is immoral, the Judge shall decide as a man of ordinary prudence and wisdom. Here the old saying is very pertinent which is “prudence is a rich, ugly old maid courted by incapacity”.
The doctrine Nemo debet esse judex in propria causa, “who is personally either directly or indirectly, interested in a case or subject matter of the property should not sit as a Judge in that particular case because in that way the vary act of the Court shall prejudice case of the party. No one can be Judge in his own cause. A Judge may not have any pecuniary or personal interest in a case, which he tries. If he has some interest he must declare it, e.g., shares in a company which is party to an action.
Actus curiae neminem geravabit, “the act of the Court should not prejudice to any body”. Act of Court shall prejudice no one. Law is based upon the justice and reason and when the reason goes away, the law should also go away, is applicable.
Cessante ratione legis, cessat ipsa lex, “the reason of the law ceasing, the law itself ceases”. This maxim applies to the principles of the common law, but not to any considerable extent to statue law.
Cessante causa, cessat effectus, “when the cause ceases, the effect ceases. Cessante ratione legis, cessat ipsa lex, “the reason of the law ceasing, the law itself ceases. This maxim applies to the principles of the common law, but not to any considerable extent to statute law. Reason is the soul of law and when the reason goes away, the law should also go.
Mutatis mutandis, “with slight alteration or the necessary change being made”. Where particular law is not available for particular matter, then law available is applied with slight alteration. For example, Code of Civil Procedure is not applicable in ejectment cases with Rent Controller, therefore, Code of Civil Procedure is applied with slight alteration under the doctrine of mutatis mutandis.
Nemo debet bis vexari pro una et eadem causa, “a person cannot be tried a second time for an offence which is involved in the offence with which he was previously charged.” Person once convicted cannot be convicted again under the same offence.
Expressio unius personae vel rei, est exclusion alterius, “the express mention of one person or thing is the exclusion of another. A valuable servant but a dangerous master in the construction of statutes or documents.
Expressum Facit Tacitum, expression precludes implication.
View in the larger interest prevails when two views are possible.
The word “suit” is related with civil matters whereas the word “case” is concerned with criminal matters.
1. The statute must be read as a whole. In the exposition of statutes the intention of legislature is to be ascertained and found from the whole of the statute and each and every part of it taken and prepared with other parts. The reason is that there should or may not be any contradiction between one part of the statutes and another. The whole scheme of the Act or Statute has to be taken into consideration to find its real meaning.
2. The words, phrases, and sentences of a statute are ordinarily to be understood in their natural, ordinary, popular, and grammatical meaning unless such a construction leads to an end absurdity or obscurity or form that point of view the context or object of the statute suggests different meaning.
3. Principle: The word of the statute must be construed or understood so as to give a sensible meaning to them. The Court except in the extreme and rare cases must apply the principle when there is absolute intractability (rigidity) of language.
4. Delegatus non potest delegare, “a delegate cannot delegate”. Another rule of the interpretation of statutes is that power once delegated cannot be re-delegated/ relegated. A person to whom power has been delegated cannot delegate them to another. But trustees may appoint agents to do trust business, and are not responsible for their default, if employed in good faith. Powers once delegated in a statutes cannot be re-delegated for the reason that the law tends towards an ends but is not an end itself.
5. Noscitur a sociis, “a meaning of a word can be gathered from the context”. However the man is known by the company he keeps, in the same manner a word is known by the company with regard to other words. The meaning of a doubtful word may be ascertained by a reference to the meaning of words associated with it. The rule that a word is known by the company it keeps is not un-escapable/ineluctable (inevitable). It is applied widely only where a word is capable of many meanings.
6. Ejusdem generis, “the rule that where particular words are followed by general words, the general words are limited to the same kind as the particular words.” Equivocation means duplicity of the words and unequivocal means word which gives definite meaning. Ejusdem generis means preceding the same in an enumeration of different subjects in an Act. General word following specific words may be construed with reference to the antecedent (foregoing, previous) matters and the construction may be narrowed down by treating them as applying to things of the same kind as those previously mentioned unless there is something to show wider sense was intended.
7. Old statute should be interpreted, as they would have been at the date when they were passed or made. If the prior interpretations are contradictory the Court will have to consider the reasons given and come to its own conclusion.
8. The intention of legislature predominates. The main object of the Court in interpreting a statute is to find out the intention of the legislature as expressed in the statute or Act. The intention and meaning of the statutes is to be sought in the words used. If they are plain and unambiguous the words must be applied as they stand/exist.
9. If the meaning of the enactment is plain effect must be given to such meaning irrespective of consequences. In construing enacted words the Court or a Judge is not concerned with the policy involved or with the results, injurious, or otherwise which may follow from giving effect to the language used. In interpreting an Act of legislature the duty of Court is to determining the intention of the legislature by words used. The primary rule of interpretation or undoubtedly is to take the words in natural, liberal, or grammatical sense and if the words are plain and admit but of one meaning no difficulty in interpretation arises.
10. Its construction or interpretation to avoid absurdity is permissible where the language of statute susceptible to two interpretations one of which is reasonably and other is unreasonably. According to Court, Court should hold that reasonable version shall apply.
11. Same words to have same meaning. A word which occurs more than once in the same Act should be given the same meaning throughout the Act unless the context shows that the legislature use the words in a different sense.
12. The interpretation should be in accordance with the policy and object of the statute.
13. The words are taken to be used ordinarily in the sense they borne at the time of statute.
14. Technical word: Where the legislature uses technical language then the technical meaning must be taken unless there is an obvious contrary intention.
15. Title of the Act:
16. Schedules of the Act:
17. Sub sections:
The general principle with regard to the interpretation of statutes is that if the matter in question is a matter of procedure only, the provisions would be retrospective. On the other hand if it would be more than a matter of procedure and it touches a right in existence at the passing of the Act, the legislation would not operate retrospectively but prospectively.
For instance, a plaintiff sues a defendant for the recovery of money with payment of the requisite amount of Court fees and at the appeal stage, the law with respect to the Court fees is changed. The aggrieved party cannot raise the plea to deposit the same amount of Court fees, which was paid by the plaintiff according to the law as it then was. This being a matter of procedure the aggrieved party is bound to pay the amount of Court fees in appeal strictly according to the latest rate. Therefore, we may say that the procedural law, unless other-wisely in express terms always operates prospectively and not retrospectively or ex post facto.
But on the other hand a change, if any, is brought or introduced effecting the rights in the property, to sue or be sued then in that event the law shall operate retrospectively at any stage in the suit, case, at any of the later stages in appeal or revision.
For instance, A plaintiff brings a lawsuit for the recovery of money of Rs. 100,000/- and affixes Court fees at prevalent rate, i.e., Rs. 7,500/- @ 7.5%. Later on at the time of appeal, rate of Court fees increases from 7.5% to 15%, he has to affix the Court fees at prevalent rate at that time, i.e., @ 15%. He cannot raise the plea of retroactive/retrospective (backward, past, looking back) effect of Court fees. He has to apply prospective (future, coming) rate of Court fees.
Delegated legislation: Legislation is always the prerogative of the parliament as legislature of any country. When the population was not so large and the laws were also not in large number as it is the state of affairs today as complex on account of the increase in population and problems faced as such. The legislature, therefore, used to make laws in the detailed form for the reason they had ample (broad, large, extensive) time with them to make the laws in a comprehensive manner after due contemplation (viewing, observation, examining). However it became very difficult for the legislature to make the laws in the detailed form including the substantive as well as procedural laws. Therefore they started making the laws in the general form. They left the gaps to be filled in by some other agency and in such a state of affairs. This job to fill in the blanks that is the procedural law under a particular Act enacted by the parliament could not be done by any authority except the executive whose function, admittedly, is not to make the laws but to enforce the laws.
This power left with the executive to make the rules or regulations strictly in accordance with the statutes and Acts made by the parliament is called the delegated legislation or subordinate legislation. It may be called as a subordinate legislation for the reason that the executive machinery which consists of ministers and high ranking civil servants. They cannot make any rule and regulation which contravene or otherwise impinge (infringe, disturb, encroach upon) with the substantive provisions of laws which only falls within the ambit of the legislature.
For instance, in our country Pakistan Penal Code is a code, which is substantive in nature defining and giving the ingredients of the different offences. For that purpose as to how an offender or accused guilty of any offence shall be tried in a Court of law. It pertains to the procedure, which is given in the Code of Criminal Procedure.
The ministers or executives cannot, in any case, make the laws, which is the function of the parliament or legislature of any country. But they may make rules and regulations under that Act for giving effect and application to the provisions of the Act which remaining intact (flawless, perfect, unbroken) and un-challenge-able by the executive or any authority in the country whatsoever. These rules and regulations under the Act are delegated legislation.
Here, however the superior courts have the powers of judicial review and that is to be exercised very carefully and jealously. The courts are, no doubt, creation of the constitution. But if they find that any Act of the legislature is not according to the provisions of the constitution and is thus repugnant (offensive), they may declare it unconstitutional, void, or ultra vires after full satisfaction.
Delegated legislation, however, is subject to criticism in the sense that legislation is the only privilege of the legislature of any country. The making of rules and regulations is also legislation. But here it should be kept into mind that there is no way out with the legislature of any country, in particular, the developed countries, to acquiesce (agree, consent) in the act of the executive to perform such function as there is not other authority left to make delegated legislation.
Unfortunately in the developing countries the executive in the garb of delegated legislation may pass a legislation, rules, and regulations to maintain its hegemony (leadership, authority, supreme command) or power over the masses which may ultimately negate the great principle of law that is rule of law.
Mandatory and directory: The statutes and enactments mostly contain mandatory and directory provisions of law. A mandatory provision of law leaves a very little scope in the light of the peculiar (particular, unusual) circumstances of the case in the context of the law courts. On the opposite, the directory provisions of law can at best be applied to by a Judge with reference to a particular case according to the wisdom and prudence of the Judge, he possesses for which he is bound to furnish reasons. At here it is pertinent to note that the legal acumen (keenness, intelligence) of the Judge which is most important is a matter of concern for a fair and just application of the law. The impartiality and neutrality of a Judge is an indivisible virtue. His primary and important duty and function in the application and interpretation of law is to see and examine what is legal and not what is right. He is bound to interpret the law and it is or as it should be. It is so because legal sanction only gives legality and not legitimacy. The Judge should keep into his mind that laws and institutions must go hand in hand with the progress of the human mind.
An ordinary instance of the mandatory provision of law is the constitutional provisions. The judges of the law Court are themselves creature of the constitution and evidently they are precluded (prevent, hinder) from challenging/questioning the validity of the constitution or its provisions. The constitution cannot be altered, changed, or amended except by the observance of the procedure laid down in the constitution by the judges of the law Court. While interpreting the laws made by the legislature/parliament, as having not made within the four-corners of the constitution, Judge may declare it null and void.