Corporation of A.P. Vs. Ch. Prabhakar & Ors  Insc 400 (26 May 2004)
& G.P. Mathur
This appeal by special leave has been preferred against the judgment and order
dated 8.6.2001 of High Court of Andhra Pradesh by which the writ petition
preferred by respondent nos. 1 to 3 was allowed and it was directed that the
criminal case pending against them shall not to be transferred to the Special
Tribunal and their trial shall continue in the ordinary criminal courts.
flour mill being run by the writ petitioners was inspected by the staff of the
Electricity Department and some others on 24.6.1999 and it was discovered that
theft of electrical energy was being committed. An FIR was lodged and after
investigation charge-sheet under Section 39 and 44 of Indian Electricity Act,
1910 was submitted on 6.10.1999. The learned IIIrd Metropolitan Magistrate, Hyderabad took cognizance of the offence and
proceeded with the trial of the writ petitioners wherein four prosecution witnesses
were examined. During the pendency of the case the State of Andhra Pradesh introduced certain amendments to
Indian Electricity Act, 1910 by Act No.35 of 2000 which is known as Indian
Electricity (Andhra Pradesh Amendment) Act, 2000 (hereinafter referred to as
'the Amending Act'). This Amending Act received the assent of the President of
India and thereafter it was published in the Andhra Pradesh Gazette on 2.1.2000
whereunder the case against the writ petitioners stood transferred to a Special
Tribunal. It was at this stage that a writ petition was filed in the High Court
praying that the amendments brought in by Andhra Pradesh Legislature to the
Indian Electricity Act be declared as ultra vires and a direction may be issued
to transfer the criminal case from the Special Tribunal to the Court of
Metropolitan Magistrate for trial in accordance with the ordinary law. The High
Court disposed of the writ petition with a direction that the trial of the writ
petitioner should continue before the Court of Metropolitan Magistrate. The
appellant Transmission Corporation of A.P. Limited was not a party to the writ
petition but it has preferred the present appeal by special leave against the
judgment of the High Court.
order to appreciate the controversy raised, it is necessary to reproduce the
relevant provisions of Indian Electricity (Andhra Pradesh Amendment) Act, 2000
(hereinafter referred to as 'the Amendment Act') which are as under:
In the Indian Electricity Act, 1910, as in force in the State of Andhra Pradesh (hereinafter referred to as the
Principal Act) in Section 39:-
for the words "imprisonment for a term which may extend to three years, or
with fine which shall not be less than one thousand rupees, or with both",
the words "imprisonment for a term which may extend to five years but
which shall not be less than three months and with fine which may extend to
fifty thousand rupees but which shall not be less than five thousand
rupees" shall be substituted.
The following proviso shall be added namely:- "Provided that a person on
his conviction for an offence punishable under this Act shall be debarred from
getting any supply of energy for a period of two years."
(1) For the purpose of providing for speedy trial, the State Government shall
with the concurrence of the Chief Justice of the High Court, by notification in
the official Gazette, specify for a District or Districts, a Court of District
and Sessions Judge to be a Special Tribunal to try the offences under this Act
and determine the compensation to be awarded to the Electricity utitlity where
the compensation to be awarded is up to the value of rupees five lakhs;
that if, in the opinion of the Special Tribunal any case brought before it is a
fit case to be tried by the Special Court it may, for reasons to be recorded by
it, transfer the case to the Special Court for its decision in the matter.
appeal shall lie from any judgment or order, not being interlocutory order, of
the Special Tribunal, to the Special Court.
Every appeal under this sub-section shall be preferred within a period of sixty
days from the date of judgment or order of the special Tribunal.
as not relevant)
Every finding of the Special Tribunal with regard to any alleged act of theft
of energy shall be conclusive proof of the fact of theft of energy and shall be
binding on the person or consumer concerned.
shall be lawful for the Special Tribunal to pass an order in any case decided
by it awarding compensation in terms of money for theft of energy which shall
not be less than an amount equivalent to twelve months assessed quantity of the
energy committed theft of at three times of tariff rate applicable to the
consumer or person as per guidelines prescribed by State Government from time
to time and the amount of compensation so awarded shall be recovered as if it
were a decree of a civil court:
that the Special Tribunal shall, before passing an order under this
sub-section, give to the consumer or person an opportunity of making his
representation or of adducing evidence, if any, in this regard and consider
every such representation and evidence.
Any case pending before any Court or other Authority immediately before the
commencement of the Indian Electricity (Andhra Pradesh Amendment) Act, 2000, as
would have been within the jurisdiction of a Special Tribunal shall stand
transferred to the Special Tribunal, having jurisdiction as if the cause of
action on which such suit or proceeding is based had arisen after such
Notwithstanding anything contained in section 260 or section 262 of the Code of
Criminal Procedure, 1973, every offence punishable under this Act, shall be
tried in a summary way by the Special Tribunal and the provisions of sections
263 to 265 of the said Code shall as far as may be apply to such trial.
(1) The State Government may, by notification in the Official Gazette,
constitute a Special
Court for the purpose
of providing speedy enquiry into any alleged act of theft of energy and trial
of cases and for awarding compensation to the Electricity Utility.
special Court shall consist of a Chairman and not less than four other members
to be appointed by the Government.
The Chairman shall be a person who is or has been a Judge of a High Court and
of the other four members, two shall be persons who are or have been District
Judges (hereinafter referred to as Judicial Members) and the other two members,
shall be persons with a Degree in Electrical Engineering and who hold or have
held a post not below the rank of a Chief Engineer in a State Electricity Board
or its successor entities or a post not below the rank of a Chief Electrical
Inspector in the State Government (hereinafter referred to as Technical
Members) Provided..(omitted as not relevant) (4) .
(a) Subject to the other provisions of this Act, the jurisdiction, powers and
authority of the Special Court may be exercised by benches thereof, one
comprising of the Chairman, a Judicial Member and a Technical Member and the
other comprising of a Judicial Member and a Technical Member.
Where the bench comprises of the Chairman, he shall be the Presiding Officer of
such a bench and where the bench consists of two members, the Judicial Member
shall be the Presiding Officer.
shall be competent for the Chairman, either suo moto or on a reference made to
him to withdraw any case pending before the bench comprising of two members and
dispose of the same or to transfer any case from one bench to another bench in
the interest of justice.
Where a case under this Act is heard by a bench consisting of two members and
the members thereof are divided in opinion, the case with their opinions shall
be laid before another Judicial Member or the Chairman, and that member or
Chairman, as the case may be, after such hearing as he thinks fit, shall
deliver his opinion, and the decision or order shall follow that opinion.
Notwithstanding anything in the Code of Civil Procedure, 1908, the Special
Court may follow its own procedure which shall not be inconsistent with the
principles of natural justice and fair play and subject to the other provisions
of this Act while deciding the amount of compensation to be awarded to the
Notwithstanding anything contained in section 260 or section 262 of the Code of
Criminal Procedure, 1973, every offence punishable under this Act shall be
tried in a summary way by the Special Court and the provisions of the sections
263 to 265 of the said Code shall, as far as may be apply to such trial.
(1) The Special Court may either suo moto or on a complaint under section 50 of
this Act, take cognizance of such cases arising out of any alleged act of theft
of energy whether before or after the commencement of this Act, where the value
of compensation to be awarded to the electricity utility concerned exceeds
rupees five lakhs and pass such orders (including orders by way of interim
directions) as it deems fit.
Notwithstanding anything contained in the Code of Civil Procedure, 1908, the
Code of Criminal Procedure, 1973 or the Andhra Pradesh Civil Courts Act, 1972,
any case in respect of an alleged act of theft of energy under sub-section (1)
shall be triable only in the special court and the decision of the Special
Court shall be final.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973, it
shall be lawful for the Special
Court to try all
offences punishable under this Act.
Every finding of the Special
Court with regard to
any alleged act of theft of energy shall be conclusive proof of the fact of
energy and of the person or consumer who committed such theft.
Any case, pending before any court or other authority immediately before the
constitution of a special court as would have been within the jurisdiction of
such Special Court, shall stand transferred to the Special Court as if the
cause of action on which such suit or proceeding is based had arisen after the
constitution of the Special Court.
Save as expressly provided in this Act, the provisions of the Code of Civil
Procedure, 1908, the Andhra Pradesh Civil Courts Act, 1972 and the Code of
Criminal Procedure, 1973 in so far as they are not inconsistent with the
provisions of this Act, shall apply to the proceedings before the Special Court
and for the purposes of the provisions of the said enactments, the Special
Court shall be deemed to be a Civil Court, or as the case may be, a Court of
Session and shall have all the powers of a Civil Court and a Court of a Session
and the person conducting a prosecution before the Special Court shall be
deemed to be a Public Prosecutor.
contentions were raised before the High Court. The first contention was that
the Andhra Pradesh Legislature had no legislative competence to amend the
Indian Electricity Act and the second contention was that the Amending Act
could not have any retrospective operation, namely it could not affect the
proceedings which had already commenced and were pending before the Courts. The
first contention need not detain us.
38 in the concurrent List of VIIth Schedule of the Constitution of India is 'Electricity'.
Therefore Andhra Pradesh Legislature had the legislative competence to make law
on the subject of electricity and to make amendments to Indian Electricity Act,
1910. The Amending Act has also received the assent of the President of India
and therefore in view of Article 254 (2) of the Constitution, it shall prevail.
is the second contention based upon retrospective operation of the Amending Act
which requires serious consideration. The High Court has held that the Amending
Act permits imposition of higher or more severe punishment; imposition of
higher fine, direct payment of compensation and also provides for trial of the
accused by a procedure which is less favourable and also deprives him of his
right to file a criminal revision in the High Court in accordance with section
397 (1) Cr. P.C. The Special Tribunal where he may be tried may transfer the
case to the Special
Court and in the
event of conviction by the said Special Court, there is no right of appeal.
High Court accordingly held that the transfer and trial of the accused by the
Special Tribunal at the stage when the Metropolitan Magistrate had already
taken cognizance of offence and recorded statement of four witnesses would
offend the guarantee enshrined in Article 20 (1) of the Constitution.
order to examine the contentions raised at the Bar, it is necessary to consider
the real import of the guarantee enshrined in clause (1) of Article 20 of the
Constitution. The inclusion of a set of Fundamental Rights in India's Constitution had its genesis in
the forces that operated in the national struggle during the British rule. With
the resort by the British Executive to such arbitrary acts as internments and
deportations without trial and curbs on the liberty of the Press in the early
decades of this century, it became an article of faith with the leaders of the
freedom movement. As the freedom struggle gathered momentum after the end of
the First World War, clashes with British authorities in India became increasingly frequent and
sharp and the harshness of the Executive in operating its various repressive
measures strengthened the demand for a constitutional guarantee of fundamental
rights. As early as 1895, the Constitution of India Bill described as Home
Rule Bill by Miss Anie Besant had envisaged for India a constitution,
guaranteeing to every one of her free citizen freedom of expression,
inviolability of one's house, right to property, equality before the law and
right to personal liberty. The Indian National Congress at its special session
held in Bombay in August 1918 demanded that the
new Government of India Act should include among other things, guarantees in
regard to equality before the law, protection in respect of peoples life and
property, freedom of speech and press, and right of association. A resolution
passed at the Madras session of the Indian National
Congress in 1927 categorically laid down that the basis of the future
Constitution of India must be a declaration of fundamental rights. The Nehru
Committee appointed by the All Party Conference in its report (1928)
incorporated a provision for the enumeration of such rights recommending their
adoption as part of the future Constitution of India and one of the rights
recommended by it was protection in respect of punishment under ex-post facto
laws. The Sub- committee on fundamental rights of the constituent assembly
considered the draft proposed by its members. Sri Ambedkar's draft contained a
provision - No Bill of attainder or ex-post facto law shall be passed. After
considering the draft of Sri K.M. Munshi and other members, the Sub-committee
made its recommendation which was adopted by the constituent assembly (See The
Framing of India's Constitution "A Study" by B. Shiva Rao Chapter
7). The draft proposed by Sri Ambedkar and the Constitutional advisor Sri B.N. Rao
shows that the framers of our constitution while drafting Article 20 had the
provisions of U.S. Constitution in their mind.
Section 9 of Article 1 of U.S.
Constitution as adopted on July 4, 1776
provides that no Bill of attainder or ex-post facto law shall be passed and
Section 10 of the same Article lays down that no State shall pass any bill of
attainder or ex-post facto law. The import of this constitutional guarantee was
explained two centuries ago by U.S. Supreme Court in Calder Versus Bull 1. L.Ed.
648, which has still held the field, in the following words:
every law that makes an action done before the passing of the law, and which
was innocent when done, criminal and punishes such action
law that aggravates a crime, or makes it greater than it was when committed
law that changes the punishment, and inflicts a greater punishment than the law
annexed to the crime when committed
law that alters the legal rules of evidence, and receives less or different
testimony than the law required at the time of the commission of the offence in
order to convict the offender." Chief Justice Marshall's definition of an
ex-post facto law in Fletcher v. Peck 3 L.Ed. 162- "One which renders an
act punishable in a manner in which it was not punishable when it was
committed" has been followed in many cases and jurists have said that a
better or more accurate definition has not been given.
will be useful to briefly notice the interpretation placed on this
constitutional guarantee by U.S. Supreme Court which is as under :
Statute which punishes as a crime a previous act which was innocent when
committed violates constitutional guarantee. (Calder v. L.Ed.216)
Legislation which aggravates the degree of the crime resulting from an act
committed prior to its passage violates the Constitutional prohibition. (Flatcher
v. Peck 10 U.S. 87, 3 L.Ed. 162. Bonie v. Columbia (1964) 378 US 347, 12 L.Ed. 2d. 894)
which imposes additional punishment to that prescribed when a criminal act was
committed is ex post facto (Cummings v. Missouri 71 US 277, 18 L.Ed. 356,
Lindsay v. Washington (1937) 301 US 397, 81 L.Ed 1182). The key question is whether the
new law makes it possible for the accused to receive a greater punishment, even
though it is possible for him to receive the same punishment under the new law,
as could have been imposed under the prior law.
Legislation which in relation to that offence or its consequences alters the
situation of a party to his disadvantage or which eliminates, after the date of
a criminal act, a defense available to the accused person at the time the act
was committed violates constitutional guarantee (Kring v. Missouri 107 US 221,
271. Ed. 506, Bezell v. Ohio 269 US 167, 70 L.Ed.216).
law which alters the legal rules of evidence so as to require less proof than
the law required at the time of the commission of an offence, in order to
convict the accused, can amount to an ex-post facto law within the
constitutional guarantee (Kring v. Missouri 107 US 221, 27 L.Ed. 506, Beazell
v. Ohio 269 US 167, 70 L.Ed. 216)
Constitutional prohibition does not apply to laws bringing about changes in
procedure which do not alter substantial rights, even though they might in some
way operate to a person's disadvantage. It does not give defendants a vested
right in the remedies and methods of procedure employed in trials for crimes,
provided that any statutory procedural change does not deprive the accused of a
substantial right or immunity possessed at the time of the Commission of the
offence charged. (Hept v. People of Utah 110 US 574, 28 L.Ed. 262; Mallet v. North Carolino 181 US 589, 45 L.Ed. 1015).
change in law that alters a substantial right can be ex-post facto even if the
statute takes a seemingly procedural form (Winston v. State 118 A.L.R. 719;
Miller v. Florida (1987) 482 US 423, 96 L.Ed. 2d. 351).
above quoted view of the legal position has also been stated in 16- A Corpus Juris
Secundum Paras 409, 414, 420 and in 16 American Jurisprudence 2d paras 402,
United Kingdom the Parliament being the supreme, the Courts interpret the penal
laws in a manner that they do not have ex post facto operation on the principle
that Parliament would not pass retrospective criminal legislation. In
Waddington v. Miah (1974) 2 All E.R. 377; while examining the provisions of
section 34 (1) (a) of the Immigration Act, 1971 which lays down that the Act,
as from its coming into force, shall apply in relation to entrants or others
arriving in the U.K. at whatever date before or after it comes into force, Lord
Reid with whom all other Law Lords agreed, observed as follows:
cannot see how section 34 (1)(a) can be construed as having any reference to
what any entrant may have done in this country before the Act came into force.
All that it does is to subject to the provisions of the Act for the future, any
one who entered in the past." In R. v. Kirk (1985) 1 All E.R. 453 the Court
of Justice of the European Economic Community observed as follows:
principle that penal provisions may not have retrospective effect is one which
is common to all the legal orders of the member states and is enshrined in
art.7 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) as a
fundamental right; it takes its place among the general principles of law whose
observance is ensured by the Court of Justice.
the retroactivity provided for in art. 6(1) of Regulation 170/83 cannot be
regarded as validating ex post facto national measures which imposed criminal
penalties, at the time of the conduct at issue, if those measures were not
This shows that the principle that penal provisions may not have retroactive
effect is observed by member-nations of European Economic Community of which
almost all the democracies of Western Europe are members.
fact it is not a new principle but is coming down from ancient times will be
clear from the following passage on the topic of legislation in
"Jurisprudence The Philosophy and Method of the Law" by Edger Bodenheimer
(First Indian Reprint 1996) at page 327:
typical feature of a legislative act, as distinguished from a judicial
pronouncement, was brought out in Mr. Justice Holmes's opinion in Prentis v.
Atlantic Coastline Co. As he pointed out in this opinion, while a
"Judicial inquiry investigates, declares and enforces liabilities as they stand
on present or past facts and under laws supposed already to exist," it is
an important characteristic of legislation that it "looks to the future
and changes existing conditions by making a new rule to be applied thereafter
to all or some part of those subject to its power." These passages must be
understood as elucidating certain normal and typical aspects of legislation
rather than stating a conditio sine qua non, an essential condition, of all
legislative activity. The large majority of enactments passed by legislatures
take effect ex nune, that is, they are applied to situations and controversies
that arise subsequent to the promulgation of the enactment. It is a fundamental
requirement of fairness and justice that the relevant facts underlying a legal
dispute should be judged by the law which was in existence when these facts
arose and not by a law which was made post factum (after the fact) and was
therefore necessarily unknown to the parties when the transactions or events
giving rise to the dispute occurred. The Greeks frowned upon ex post facto
laws, laws which are applied retrospectively to past-fact situations The Corpus
Juris Civilis of Justinian proclaimed a strong presumption against the
retrospective application of laws Bracton introduced the principle into English
law Coke and Blackstone gave currency to it , and the principle is recognised
today in England as a basic rule of statutory construction. In the United States, ex post facto laws in criminal
cases and retrospective state laws impairing the obligation of contracts are
expressly forbidden by the terms of the federal Constitution; in other types of
situations, a retroactive legislative infringement of vested rights may present
a problem of constitutional validity under the due process clause of the
Constitution." Article 11(2) of the Declaration of Human Rights of the
United Nations lays down as under:
one shall be held guilty of any penal offence on account of any act or omission
which did not constitute a penal offence, under national or international law,
at the time when it was committed. Nor shall a heavier penalty be imposed than
the one that was applicable at the time the penal offence was committed."
Article 7 of the Convention for the Protection of Human Rights and Fundamental
Freedoms reads as under:
No one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence under national or
international law at the time when it was committed, nor shall a heavier
penalty be imposed than the one that was applicable at the time the criminal
offence was committed.
This Article shall not prejudice the trial and punishment of any person for any
act or omission which, at the time when it was committed, was criminal
according to the general principles of law recognised by civilised
India is a member of the United Nations Organization and is also a signatory to
the aforesaid Conventions. In Peoples Union for Civil Liberty v. Union of India
(1997)1 SCC 301 the Court recognised the principle that it is almost an
accepted proposition of law that rules of customary international Law, shall be
deemed to be incorporated in the domestic law. For holding this the Court
relied upon the observation made by Sikri, C.J. in Keshava Nanda Bharati (1973)
4 SCC 225 (at page 333) that in view of Article 51 of the directive principles
the Court must interpret the language of the constitution if not intractible in
the light of the United Nation Charter and the solemn declaration subscribed to
by India. The court also took notice of similar observation made by Khanna, J.
in A.D.M. Jabalpur (1976) 2 SCC 521 (at page 754) that if two constructions of
the Municipal Law are possible, the court should lean in favour of adopting such
construction as would make the provisions of the Municipal Law to be in harmony
with international law or treaty obligations. Applying this principle Article
21 of the Constitution was interpreted in conformity with the International
same analogy Article 20 may have to be interpreted in conformity with United
Nations Charter and Conventions.
literal interpretation of sub-clause (1) of Article 20 would mean that the
protection available is only against conviction for an act or omission which
was not an offence under the law in force when the same was committed and
against infliction of a greater penalty than what was provided under the law in
force when the offence was committed. Constitution being a living organic
document needs to be construed in a broad and liberal sense.
construction most beneficial to the widest possible amplitude of its powers may
have to be adopted. Of all the instruments, the constitution has the greatest
claim to be construed broadly and liberally (See M/s. Good Year India Ltd. v.
State of Haryana AIR 1990 SC 781 at 791 and Synthetics and Chemicals Ltd. v.
State of U.P. AIR 1990 SC 1927 at 195). The following observation of Vivian
Bose, J. in State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 (pgs. 85 and
86) though given immediately after enforcement of the Constitution has become
more relevant now.
find it impossible to read these portions of the Constitution without regard to
the background out of which they arose. I cannot blot out their history and
omit from consideration the brooding spirit of the times. They are not just
dull lifeless words static and hinebound as in some mummified manuscript, but
living flames intended to give life to great nation and order its being,
tongues of dynamic fire potent to mould the future as well as guide the
present. The constitution must, in my judgment, be left elastic enough to meet
from time to time the altering conditions of a changing world with its shifting
emphasis and differing needs..
that, what is the history of these provisions? They arose out of the fight for
freedom in this land and are but the endeavour to compress into a few pregnant
phrases some of the main attributes of the sovereign democratic republic as
seen through Indian eyes. There was present to the collective mind of the
Constituent Assembly, reflecting the mood of the peoples of India, the memory
of grim trials by hastily constituted tribunals with novel forms of procedure
set forth in Ordinance promulgated in haste because of what was then felt to be
the urgent necessities of the moment.
Concerned as it is with the liberty of a person a liberal construction has to
be given to the language used in clause (1) of Article 20 and not a narrow one
. The interpretation given to Section 9 of Article 1 of American Constitution
by U.S. Supreme Court may also be kept in mind for the purpose of understanding
the true content and scope of guarantee enshrined in sub-clause (1) of Article
20 of Constitution of India.
Whether constitutional guarantee enshrined in clause (1) of Article 20 is
confined only to prohibition against conviction for any offence except for
violation of law in force at the time of the commission of the act charged as
an offence and subjection to a penalty greater than that which might have been
inflicted under the law in force at the time of commission of offence or it
also prohibits legislation which aggravates the degree of crime or makes it
possible for the accused to receive greater punishment even though it is also
possible for him to receive the same punishment under the new law as could have
been imposed under the prior law or deprives the accused of any substantial
right or immunity possessed at the time of the commission of the offence
charged is a moot point to be debated.
The effect of the Amending Act on the right of the accused to prefer an appeal
or revision against an order of conviction may be examined first.
in view of Section 49-C (1) the offences under the Act where the compensation
to be awarded is upto the value of Rs. Five lakhs have to be tried by the
Special Tribunal which is a Court of District and Sessions Judge. The Special
Tribunal may, if it is of the opinion that it is a fit case to be tried by the
Special Court and for reasons to be recorded, transfer the case to the Special
Court. Sub-section (2) of Section 49-C provides for an appeal against any
judgment or order, not being an interlocutory order of the Special Tribunal, to
the Special Court. Sub- section (2) of section 49-E attaches finality to the
decision of the Special Court where the case is of the nature mentioned in
49-F lays down that the provisions of Code of Criminal Procedure, 1973, in so
far as they are not inconsistent with the provisions of the Amending Act shall
apply to the proceedings before the Special Court and for the purpose of
provisions of the said enactment the Special Court shall be deemed to be a
Court of Session and have all the powers of Court of Session. Section 374 (2)
of the Code gives a right to a person convicted on a trial held by a Sessions
Judge to prefer an appeal to the High Court and in view of Section 26 (a)(ii)
of the Code the Court of Sessions means a Sessions Judge. Therefore it follows
that except for such category of cases which are covered by section 49-E (2) of
the Amending Act, there would be a right of appeal to the High Court against a
conviction recorded by the Special Court. Similarly in a case where conviction
has been recorded by the Special Tribunal and the appeal has been heard by the
Special Court under sub-section (2) of section 49-C, a revision would lie to
the High Court under section 401 of the Code.
The prescription of summary procedure for trial of offences has been seriously
challenged. Sub-section (7) of Section 49-C provides that notwithstanding
anything contained in sections 260 or 262 of the Code of Criminal Procedure the
trial of every offence under the Act is to be done in a summary way and the
provisions of sections 263 to 265 of the Code shall, as far as may be, apply to
such trials. Chapter XXI of the Code of Criminal Procedure deals with summary
trials. In view of the mandate of clause (i) of sub-section (1) of section 260
of the Code an offence which is punishable with a sentence exceeding two years
cannot be tried in a summary way.
in view of sub-section (2) of section 262 of the Code a sentence of
imprisonment for a term exceeding three months cannot be passed in a summary
trial. In fact sub-section (2) of section 260 of the Code provides that when in
the course of summary trial it appears to the Magistrate that the nature of the
case is such that it is undesirable to try it summarily, the Magistrate shall
recall any witness who may have already been examined and proceed to rehear the
case in the manner provided by the Code. A Magistrate, while trying a case
summarily, is required to record only the substance of the evidence and a brief
statement of reasons for the finding has to be mentioned in the judgment in
view of Section 264 of the Code. In summary trials, there is a clear departure
from the procedure prescribed for trial of other category of cases as they are
primarily meant for petty or small cases where a sentence exceeding three
months cannot be imposed. But Section 2 of the Amending Act by which section 39
of the Electricity Act, 1910 has been amended has enhanced the sentence which
may extend to five years R.I. but shall not be less than three months and a
fine which may extend to Rs.50,000/- but shall not be less than Rs.5,000/-. The
proviso imposes a further disability upon the person convicted in the sense
that he shall be debarred from getting supply of energy for a period of two
trial of all such cases is now mandatorily to be conducted as a summary trial
and provisions of sections 263 to 265 of Code of Criminal Procedure alone have
been made applicable. The provision of section 354 of the Code relating to
language and content of judgment where the Court has to mention the point or points
for determination, the decision thereon and the reasons for the decision, is in
sharp contrast to section 264 of the Code. If the complete statement of
witnesses is not recorded in the manner deposed to by the witnesses and only a
substance of the evidence is recorded the appellate court will not be in a
position to weigh the evidence properly and come to an independent conclusion.
These provisions where summary trial has been provided, therefore, cause
serious prejudice and substantial injury to the accused.
The main problem will arise where the Special Court itself tries the case of
the type described in sub-section (1) of section 49-E of the Amended Act in
view of the bar created by sub-section (2) of the said section whereby finality
is attached to the decision of the Special Court. The appeal is the right of
entering a superior Court and invoking its aid and interposition to redress an
error of the court below. Though procedure does surround an appeal the central
idea is a right. The right of appeal has been recognised by judicial decisions
as a right which vests in a suitor at the time of institution of original
proceedings. S.R. Das, CJ. in Garikapati v. Subbiah Choudhary AIR 1957 SC 540,
following the decision of the Privy Council in Colonial Sugar Refining Company
v. Irving 1905 AC 369 and on a review of earlier authorities deduced the
following five propositions regarding an appeal, viz.
The legal pursuit of a remedy, suit, appeal and second appeal are really but
steps in a series of proceedings all connected by an intrinsic unity and are to
be regarded as one legal proceeding;
right of appeal is not a mere matter of procedure but is a substantive right;
institution of the suit carries with it the implication that all rights of
appeal then in force are preserved to the parties thereto till the rest of the
carrier of the suit;
the right of appeal is a vested right and such a right to enter the superior
court accrues to the litigant and exists as on and from the date the lis
commences and although it may be actually exercised when the adverse judgment
is pronounced, such right is to be governed by the law prevailing at the date
of the institution of the suit or proceeding and not by the law that prevails
at the date of its decision or at the date of filing of appeal;
vested right of appeal can be taken away only by a subsequent enactment if it
so provides expressly or by necessary intendment and not otherwise.
if the right of appeal is a substantive right which is really a step in series
of proceedings all connected by an intrinsic unity and is to be regarded as one
legal proceeding and further being a vested right such a right to enter the
superior court accrues to the litigant and exists as on and from the date the lis
commences then sub-section (2) of Section 49-E insofar as it makes the
decisions of the Special Court final and also makes no provision of appeal
clearly causes prejudice and substantial injury to the accused.
Shanti Bhushan learned senior counsel for the appellant has submitted that the
mere fact that a right of appeal is taken away does not mean that an accused is
rendered remediless, as he can always challenge the decision of the Special
Court by preferring a writ petition under Article 226 of the Constitution
before the High Court. In our opinion the contention raised is wholly
misconceived. In proceedings under Article 226, the High Court cannot sit as a
court of appeal over the findings recorded by the Special Court to reappreciate
the evidence for itself or to correct an error of fact (not going to
jurisdiction) however apparent it might be on the ground that the evidence on
which it was based was not satisfactory or sufficient, particularly when the
finding of the Special Court is final under the Statute.
High Court cannot interfere with the findings of fact based on evidence and
substitute its own independent findings. The only inquiry which the High Court
can make under Article 226 is whether there was any evidence at all, which if
believed, would sustain the charge before the Special Court or the finding
arrived at by it or whether the Special Court acted upon irrelevant
considerations neglecting to take account of relevant factors or whether the
decision is so unreasonable that no reasonable person would have made such a
decision. The proceedings under Article 226 are not a substitute for an appeal.
More so, as under section 386 of the Code there is no embargo on the power of
the appellate court. In an appeal from a conviction it may reverse the finding
and sentence and acquit or discharge the accused or order him to be re-tried by
a court of competent jurisdiction.
conferment of power of review upon the Special Court under Section 49-G is
again no substitute for an appeal as such a power is circumscribed by the
language used in this section and can be granted on a very limited grounds.
Therefore, sub-section (2) of section 49-E of the Amending Act causes prejudice
and serious injury to the accused.
High Court in the impugned judgment has held that though in view of language
used in sub-section (5) of section 49-C all pending cases may be transferred,
but no right of appeal or revision can be taken away, nor an accused can be
deprived of a better procedure in view of the provisions of Articles 20 and 21
of the Constitution. Accordingly it held that sub-section (5) of section 49-C
should be read down whereunder pending cases of the nature before the
Metropolitan Court cannot be transferred to the Special Tribunal and the writ
petitioner should be tried in the regular criminal Courts in terms of the
provisions of Code of Criminal Procedure.
However, as the interpretation of Article 20 as to its scope and ambit is
involved in these proceedings, we refer the question formulated in para 15 of
this order to a larger bench for consideration.