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TMI Blog2005 (5) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... ty shall be punishable with a mandatory term of imprisonment and fine. The majority in Velliappa took the view that since an artificial person like a company could not be physically punished to a term of imprisonment, such a section, which makes it mandatory to impose a minimum term of imprisonment, cannot apply to the case of an artificial person. The majority judgment in Velliappa indicates that the situation is not one of an interpretational exercise, but one that calls for rectification of an irretrievable error in drafting of the concerned statute. It has noticed the two Reports of the Law Commission of India of 1941 and 1947 pointing out the impossibility of implementing such a provision without transgressing the well established bounds of judicial functions and taking on the role of legislature. It was also pointed out that the situation is neither novel, nor unique. Such situation has been faced in several other jurisdictions wherein it was recognised that the only solution to such a problem is by legislative action. Instances from the jurisdictions in Australia, France, Canada, Netherland and Belgium were referred to. There was also reference made to the fact that the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and resolved the difficulty by a suitable amendment in legislation, the Court must hold that its decision has correctly interpreted the law and accords with the Parliamentary intent in enacting the law as it stood prior to the enactment. (See, Bhimaji Shanker Kulkarni v. Dundappa Vithappa Udapudi and another ). Thus, if the interpretative function of the Court be to find out the true intention of Parliament, then such intention has been manifested the amendments adopting the manner of resolving the difficulty indicated by Velliappa. JUDICIAL FUNCTION A number of arguments were addressed by learned counsel as to what is the true function of the Court in interpreting a statute. We would prefer to tread the conventional path that the maxim judicis est just dicere, non dare best expounds the role of the court. It is to interpret the law, not to make it. The Court cannot act as a sympathetic caddie who nudges the ball into the hole because the putt missed the hole. Even a caddie cannot do so without inviting censure and more. If the legislation falls short of the mark, the Court could do nothing more than to declare it to be thus, giving its reasons, so that the legislatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The exercise would then become one of putting a fluctuating or varying interpretation on the statute depending upon the circumstances. That is not permissible for the Court, either on principle, or on precedent. While it may be permissible for the court to read the word and as or , or vice versa, whatever the interpretation, it must be uniformly applied to all situations. If the conjunction and is read disjunctively as or , then the intention of Parliament would definitely be defeated as the mandatory term of imprisonment would not be available even in the case of a natural person. We have not been shown any authority for the proposition that it is open to the Court to put an interpretation on a statute which could vary with the factual matrix. Secondly, when a statute says the Court shall impose a term of imprisonment and a fine , there is no option left in the Court to say that under certain circumstances it would not impose the mandatory term of imprisonment. It is trite principle that punishment must follow the conviction. In State of Maharashtra vs. Jugamander Lal this Court observed: (at p.5) By saying that a person convicted of the offence shall be sentenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f petitio principii and really begs the question. Irrespective of a declaration in the statute that it shall be applied unless there is anything repugnant in the clause to the context , such an interpretation must necessarily be implied as forming part of all statutes. [See in this connection, Commissioner of Sales Tax vs. Union Medical Agency ;Kartick Chandra vs. Harsha M. Dasi ; Edmund N. Schuster vs. Assistant Collector of Customs, New Delhi ; State of Maharashtra vs. Syndicate Transport ; and Knightsbridge Estates Trust Ltd. Vs. Byrne and others ] The definition of any word in a statute must necessarily depend on the context in which the word is used in the statute. If the statute says that the person committing the offence shall be mandatorily sent to prison, this principle would suggest that such a section would not apply to a juristic person. The maxim lex non cogit ad impossibilia , like all maxims, only tells us that law does not contemplate something which cannot be done. The maxim applies, in so far as persuading the Court to hold that it is impossible to send a company to prison. The maxim by itself does not empower the Court to break up the section into convenie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 56(1)(i) of the Foreign Exchange Regulation Act, 1973, it is not permissible for the Court to hold that the Section would mean one thing in the case of an offender, who is a natural person and something else in the case of an offender, who is a juristic person. Such a situation can only be brought about by Parliamentary legislation of the nature cited earlier. The mandate of the legislature can be interpreted so as to advance the purpose of the legislation. Whatever interpretation is given must be applicable equally in all situations. Neither this maxim, nor any other maxim, enables a Court to interpret a statute in different ways under different fact situations. ARGUMENT OF CONSEQUENCE A final argument, more in terrorem than based on reason, put forward was that, if the majority view in Velliappa is upheld, it would be impossible to prosecute a number of offenders in several statutes where strict liability has been imposed by the statute. If that be so, so be it. As already pointed out, the judicial function is limited to finding solutions within specified parameters. Anything more than that would be judicial heroics and naked usurpation of legislative function . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er with the punishment prescribed in law. In other words, sentence must inexorably follow conviction, as night follows the day. The argument that it is open to the court to abandon its duty midway without imposition of punishment of the offender, is one without merit. The reliance on Section 48A of the Monopolies and Restricted Trade Practices Act, 1969, which was inserted by the 1984 amendment, is of no consequence. The section merely says any person or body corporate or which does or omits to do what is mentioned in the Act shall be punishable with 2 years imprisonment and also with fine which may exceed to ₹ 10000/-. We do not think that reliance on this section in any way advances the contention canvassed by the counsel in favour of overruling the view taken by the majority in Velliappa. It is obvious that notwithstanding such an amendment made in 1984, a body corporate cannot be visited with imprisonment for any term. This section, therefore, is of the same nature as the ones which were the subject matters in the fiscal statutes like Income Tax Act and Wealth Tax Act or Foreign Exchange Regulation Act. That the Parliament is alive to the situation and has remedied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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