CASE NO.: Appeal (civil) 6131 of 2002 PETITIONER: Transmission Corporation of A.P. RESPONDENT: Ch. Prabhakar & Ors. DATE OF JUDGMENT: 26/05/2004 BENCH: CJI & G.P. Mathur JUDGMENT:
JUDGMENT
ORDER
G.P.Mathur
1. 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.
2. A 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.
3. In 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:
“2. 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:-
(i) 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.
(ii) 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.”
49-C (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;
Provided 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.
(2) An 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.
Provided(omitted as not relevant)
(3) 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.
(4) It 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:
Provided 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.
(5) 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 commencement.
(6)
(7) 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.
49-D. (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.
(2) A special Court shall consist of a Chairman and not less
than four other members to be appointed by the Government.
(3) 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) .
(5) (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.
(b) 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.
(c) It 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.
(d) 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.
(6) .
(7) ..
(8) .
(9) (i) 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 Electricity Utility.
(ii) 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.
(10) ..
49-E (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.
Provided..
(2) 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.
(3) .
(4) 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.
(5) .
(6) .
(7) 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.
(8) .
(9) 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.
49-F 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.
4. Two 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.
Entry 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.
5. It 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.
The 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.
6. In 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.
7. 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:
“(1) every law that makes an action done before the passing of the law, and
which was innocent when done, criminal and punishes such action (2) every
law that aggravates a crime, or makes it greater than it was when committed
(3) every law that changes the punishment, and inflicts a greater punishment
than the law annexed to the crime when committed (4) every 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.
8. It will be useful to briefly notice the interpretation placed on this
constitutional guarantee by U.S. Supreme Court which is as under :
(1) A Statute which punishes as a crime a previous act which was
innocent when committed violates constitutional guarantee. (Calder v.
Bull 3 U.S. 386, 1 L.Ed. 648; Beazell Vs. Ohio 269 US 167, 70
L.Ed.216)
(2) 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)
(3) Law 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.
(4) 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).
(5) A 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)
(6) 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).
(7) A 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).
The 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, 404, 407.
9. In 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:
“I 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:
“The 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.
Consequently 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
valid.
10. 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.
11. In 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:
“Another 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:
“No 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:
“(1) 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.
(2) 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 nations.”
12. 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 Law.
On the same analogy Article 20 may have to be interpreted in conformity
with United Nations Charter and Conventions.
13. A 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.
A 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.
“I 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..
Doing 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.
14. 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.
15. 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.
16. 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.
Normally 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 Sub-section (1).
Section 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.
17. 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.
Similarly, 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 years.
The 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.
18. 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.
– (i) 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; (ii) the right of appeal is not a
mere matter of procedure but is a substantive right; (iii) the 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; (iv) 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; (v) this 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. Therefore 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.
19. Shri 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.
The 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.
The 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.
20. The 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.
21. 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.