{"id":268909,"date":"2004-05-26T00:00:00","date_gmt":"2004-05-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/transmission-corporation-of-a-p-vs-ch-prabhakar-ors-on-26-may-2004"},"modified":"2018-02-27T03:27:28","modified_gmt":"2018-02-26T21:57:28","slug":"transmission-corporation-of-a-p-vs-ch-prabhakar-ors-on-26-may-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/transmission-corporation-of-a-p-vs-ch-prabhakar-ors-on-26-may-2004","title":{"rendered":"Transmission Corporation Of A.P vs Ch. Prabhakar & Ors on 26 May, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Transmission Corporation Of A.P vs Ch. Prabhakar & Ors on 26 May, 2004<\/div>\n
Bench: Cji, G.P. Mathur<\/div>\n
           CASE NO.:\nAppeal (civil)  6131 of 2002\n\nPETITIONER:\nTransmission Corporation of A.P.\t\t\t\t\n\nRESPONDENT:\nCh. Prabhakar & Ors.\t\t\t\t\t\t\n\nDATE OF JUDGMENT: 26\/05\/2004\n\nBENCH:\nCJI & G.P. Mathur\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
ORDER<\/p>\n
G.P.Mathur <\/p>\n
1.\tThis appeal by special leave has been preferred against the judgment
\nand order dated 8.6.2001 of High Court of Andhra Pradesh by which the writ
\npetition preferred by respondent nos. 1 to 3 was allowed and it was directed
\nthat the criminal case pending against them shall not to be transferred to the
\nSpecial Tribunal and their trial shall continue in the ordinary criminal courts.\n<\/p>\n
2.\tA flour mill being run by the writ petitioners was inspected by the
\nstaff of the Electricity Department and some others on 24.6.1999 and it was
\ndiscovered that theft of electrical energy was being committed.  An FIR was
\nlodged and after investigation charge-sheet under Section 39<\/a> and 44<\/a> of
\nIndian Electricity Act, 1910 was submitted on 6.10.1999.  The learned IIIrd
\nMetropolitan Magistrate, Hyderabad took cognizance of the offence and
\nproceeded with the trial of the writ petitioners wherein four prosecution
\nwitnesses were examined.  During the pendency of the case the State of
\nAndhra Pradesh introduced certain amendments to Indian Electricity Act<\/a>,
\n1910 by Act No.35 of 2000 which is known as Indian Electricity (Andhra
\nPradesh Amendment) Act, 2000 (hereinafter referred to as ‘the Amending
\nAct<\/a>‘). This Amending Act<\/a> received the assent of the President of India and
\nthereafter it  was published in the Andhra Pradesh Gazette on 2.1.2000
\nwhereunder the case against the writ petitioners stood transferred to a
\nSpecial Tribunal.  It was at this stage that a writ petition was filed in the
\nHigh Court praying that the amendments brought in by Andhra Pradesh
\nLegislature to the Indian Electricity Act<\/a> be declared as ultra vires and a
\ndirection may be issued to transfer the criminal case from the Special
\nTribunal to the Court of Metropolitan Magistrate for trial in accordance with
\nthe ordinary law.  The High Court disposed of the writ petition with a
\ndirection that the trial of the writ petitioner should continue before the Court
\nof Metropolitan Magistrate.  The appellant Transmission Corporation of
\nA.P. Limited was not a party to the writ petition but it has preferred the
\npresent appeal by special leave against the judgment of the High Court.\n<\/p>\n
3.\tIn order to appreciate the controversy raised, it is necessary to
\nreproduce the relevant provisions of Indian Electricity (Andhra Pradesh
\nAmendment) Act, 2000 (hereinafter referred to as ‘the Amendment Act<\/a>‘)
\nwhich are as under:\n<\/p>\n
“2.\tIn the Indian Electricity Act<\/a>, 1910, as in force in the State
\nof Andhra Pradesh (hereinafter referred to as the Principal Act)
\nin Section 39<\/a>:-\n<\/p>\n
(i)\tfor the words “imprisonment for a term which may extend to
\nthree years, or with fine which shall not be less than one
\nthousand rupees, or with both”, the words “imprisonment for a
\nterm which may extend to five years but which shall not be less
\nthan three months and with  fine which may extend to fifty
\nthousand  rupees but which shall not be less than five thousand
\nrupees” shall be substituted.\n<\/p>\n
(ii)\tThe following proviso shall be added namely:-\n<\/p>\n
“Provided that a person on his conviction for an offence
\npunishable under this Act shall be debarred from getting any
\nsupply of energy for a period of two years.”\n<\/p>\n
49-C (1) For the purpose of providing for speedy trial, the State
\nGovernment shall with the concurrence of the Chief Justice of
\nthe High Court, by notification in the official Gazette, specify
\nfor a District or Districts, a Court of District and Sessions Judge
\nto be a Special Tribunal to try the offences under this Act and
\ndetermine the compensation to be awarded to the Electricity
\nutitlity where the compensation to be awarded is up to the value
\nof rupees five lakhs;\n<\/p>\n
\tProvided that if, in the opinion of the Special Tribunal
\nany case brought before it is a fit case to be tried by the Special
\nCourt it may, for reasons to be recorded by it, transfer the case
\nto the Special Court for its decision in the matter.\n<\/p>\n
(2)\tAn appeal shall lie from any judgment or order, not being
\ninterlocutory order, of the Special Tribunal, to the Special
\nCourt.  Every appeal under this sub-section shall be preferred
\nwithin a period of sixty days from the date of judgment or order
\nof the special Tribunal.\n<\/p>\n
Provided(omitted as  not relevant)<\/p>\n
(3)\tEvery finding of the Special Tribunal with regard to any
\nalleged act of theft of energy shall be conclusive proof of the
\nfact of theft of energy  and shall be binding on the person or
\nconsumer concerned.\n<\/p>\n
(4)\tIt shall be lawful for the Special Tribunal to pass an order
\nin any case decided by it awarding compensation in terms of
\nmoney for theft of energy which shall not be less than an
\namount equivalent to twelve months assessed quantity of the
\nenergy committed theft of at three times of tariff rate applicable
\nto the consumer or person as per guidelines prescribed by State
\nGovernment from time to time and the amount of compensation
\nso awarded shall be recovered as if it were a decree of a civil
\ncourt:\n<\/p>\n
\tProvided that the Special Tribunal shall, before passing
\nan order under this sub-section, give to the consumer or person
\nan opportunity of making his representation or of adducing
\nevidence, if any, in this regard and consider every such
\nrepresentation and evidence.\n<\/p>\n
(5)\tAny case pending before any Court or other Authority
\nimmediately before the commencement of the Indian Electricity
\n(Andhra Pradesh Amendment) Act, 2000, as would have been
\nwithin the jurisdiction of a Special Tribunal shall stand
\ntransferred to the Special Tribunal, having jurisdiction as if the
\ncause of action on which such suit or proceeding is based had
\narisen after such commencement.\n<\/p>\n
(6)
\n(7)\tNotwithstanding  anything contained in section 260<\/a>  or
\nsection 262<\/a> of the Code of Criminal Procedure, 1973, every
\noffence punishable under this Act, shall be tried in a summary
\nway by the Special Tribunal and the provisions of sections 263<\/a>
\nto 265<\/a> of the said Code shall as far as may be apply to such
\ntrial.\n<\/p>\n
49-D.\t(1)\tThe State Government may, by notification in the
\nOfficial Gazette, constitute a Special Court for the purpose of
\nproviding speedy enquiry into any alleged act of theft of energy
\nand trial of cases and for awarding compensation to the
\nElectricity Utility.\n<\/p>\n
(2)\tA special Court shall consist of a Chairman and not less
\nthan four other members to be appointed by the Government.\n<\/p>\n
(3)\tThe Chairman shall be a person who is or has been a
\nJudge of a High Court and of the other four members, two shall
\nbe persons who are or have been District Judges (hereinafter
\nreferred to as Judicial Members) and the other two members,
\nshall be persons with a Degree in Electrical Engineering and
\nwho hold or have held a post not below the rank of a Chief
\nEngineer in a State Electricity Board or its successor entities or
\na post not below the rank of a Chief Electrical Inspector in the
\nState Government (hereinafter referred to as Technical
\nMembers)<\/p>\n
Provided..(omitted as not relevant)<\/p>\n
(4)\t.\n<\/p>\n
(5)\t(a)\tSubject to the other provisions of this Act, the
\njurisdiction, powers and authority of the Special Court may be
\nexercised by benches thereof, one comprising of the Chairman,
\na Judicial Member and a Technical Member and the other
\ncomprising of a Judicial Member and a Technical Member.\n<\/p>\n
(b)\tWhere the bench comprises of the Chairman, he shall be
\nthe Presiding Officer of such a bench and where the bench
\nconsists of two members, the Judicial Member shall be the
\nPresiding Officer.\n<\/p>\n
(c)\tIt shall be competent for the Chairman, either suo moto
\nor on a reference made to him to withdraw any case pending
\nbefore the bench comprising of two members and dispose of the
\nsame or to transfer any case from one bench to another bench in
\nthe interest of justice.\n<\/p>\n
(d)\tWhere a case under this Act is heard by a bench
\nconsisting of two members and the members thereof are divided
\nin opinion, the case with their opinions shall be laid before
\nanother Judicial Member or the Chairman, and that member or
\nChairman, as the case may be, after such hearing as he thinks
\nfit, shall deliver his opinion, and the decision or order shall
\nfollow that opinion.\n<\/p>\n
(6)\t.\n<\/p>\n
(7)\t..\n<\/p>\n
(8)\t.\n<\/p>\n
(9)\t(i) Notwithstanding anything in the Code<\/a> of Civil
\nProcedure, 1908, the Special Court may follow its own
\nprocedure which shall not be inconsistent with the principles of
\nnatural justice and fair play and subject to the other provisions
\nof this Act while deciding the amount of compensation to be
\nawarded to the Electricity Utility.\n<\/p>\n
(ii)\tNotwithstanding anything contained in section 260<\/a> or
\nsection 262<\/a> of the Code of Criminal Procedure, 1973, every
\noffence punishable under this Act shall be tried in a summary
\nway by the Special Court and the provisions of the sections 263<\/a>
\nto 265<\/a> of the said Code shall, as far as may be apply to such
\ntrial.\n<\/p>\n
(10)\t..\n<\/p>\n
49-E (1) The Special Court may either suo moto or on a
\ncomplaint under section 50<\/a> of this Act, take cognizance of such
\ncases arising out of any alleged act of theft of energy whether
\nbefore or after the commencement of this Act, where the value
\nof compensation to be awarded to the electricity utility
\nconcerned exceeds rupees five lakhs and pass such orders
\n(including orders by way of interim directions) as it deems fit.\n<\/p>\n
Provided..\n<\/p>\n
(2)\tNotwithstanding anything contained in the Code<\/a> of Civil
\nProcedure, 1908, the Code<\/a> of Criminal Procedure, 1973 or the
\nAndhra Pradesh Civil Courts Act, 1972, any case in respect of
\nan alleged act of theft of energy under sub-section (1) shall be
\ntriable only in the special court and the decision of the Special
\nCourt shall be final.\n<\/p>\n
(3)\t .\n<\/p>\n
(4)\tNotwithstanding anything contained in the Code<\/a> of
\nCriminal Procedure, 1973, it shall be lawful for the Special
\nCourt to try all offences punishable under this Act.\n<\/p>\n
(5)\t.\n<\/p>\n
(6)\t.\n<\/p>\n
(7)\tEvery finding of the Special Court with regard to any
\nalleged act of theft of energy shall be conclusive proof of the
\nfact of energy and of the person or consumer who committed
\nsuch theft.\n<\/p>\n
(8)\t.\n<\/p>\n
(9)\tAny case, pending before any court or other authority
\nimmediately before the constitution of a special court as would
\nhave been within the jurisdiction of such Special Court, shall
\nstand transferred to the Special Court as if the cause of action
\non which such suit or proceeding is based had arisen after the
\nconstitution of the Special Court.\n<\/p>\n
49-F   Save as expressly provided in this Act, the provisions of
\nthe Code<\/a> of Civil Procedure, 1908, the Andhra Pradesh Civil
\nCourts Act, 1972 and the Code<\/a> of Criminal Procedure, 1973 in
\nso far as they are not inconsistent with the provisions of this
\nAct, shall apply to the proceedings before the Special Court and
\nfor the purposes of the provisions of the said enactments, the
\nSpecial Court shall be deemed to be a Civil Court, or as the
\ncase may be, a Court of Session and shall have all the powers of
\na Civil Court and a Court of a Session and the person
\nconducting a prosecution before the Special Court shall be
\ndeemed to be a Public Prosecutor.\n<\/p>\n
4.\tTwo contentions were raised before the High Court.  The first
\ncontention was that the Andhra Pradesh Legislature had no legislative
\ncompetence to amend the Indian Electricity Act<\/a> and the second contention
\nwas that the Amending Act<\/a> could not have any retrospective operation,
\nnamely it could not affect the proceedings which had already commenced
\nand were pending before the Courts.  The first contention need not detain us.
\nEntry 38 in the concurrent List of VIIth Schedule of the Constitution of India
\nis ‘Electricity’.  Therefore Andhra Pradesh Legislature had the legislative
\ncompetence to make law on the subject of electricity and to make
\namendments to Indian Electricity Act<\/a>, 1910.  The Amending Act<\/a> has also
\nreceived the assent of the President of India and therefore in view of Article
\n254 (2)<\/a> of the Constitution, it shall prevail.\n<\/p>\n
5.\tIt is the second contention based upon retrospective operation of the
\nAmending Act<\/a> which requires serious consideration.  The High Court has
\nheld that the Amending Act<\/a> permits imposition of higher or more severe
\npunishment; imposition of higher fine, direct payment of compensation and
\nalso provides for trial of the accused by a procedure which is less favourable
\nand also deprives him of his right to file a criminal revision in the High
\nCourt in accordance with section 397<\/a> (1) Cr. P.C.  The Special Tribunal
\nwhere he may be tried may transfer the case to the Special Court and in the
\nevent of conviction by the said Special Court, there is no right of appeal.
\nThe High Court accordingly held that the transfer and trial of the accused by
\nthe Special Tribunal at the stage when the Metropolitan Magistrate had
\nalready taken cognizance of offence and recorded statement of four
\nwitnesses would offend the guarantee enshrined in Article 20 (1)<\/a> of the
\nConstitution.\n<\/p>\n
6.\tIn order to examine the contentions raised at the Bar, it is necessary to
\nconsider the real import of the guarantee enshrined in clause (1) of Article
\n20<\/a> of the Constitution.  The inclusion of a set of Fundamental Rights in
\nIndia’s Constitution had its genesis in the forces that operated in the national
\nstruggle during the  British rule.  With the resort by the British Executive to
\nsuch arbitrary acts as internments and deportations without trial and curbs on
\nthe liberty of the Press in the early decades of this century, it became an
\narticle of faith with the leaders of the freedom movement.  As the freedom
\nstruggle gathered momentum after the end of the First World War, clashes
\nwith British authorities in India became increasingly frequent and sharp and
\nthe harshness of the Executive in operating its various repressive measures
\nstrengthened the demand for a constitutional guarantee of fundamental
\nrights.  As early as 1895, the Constitution of India Bill  described as Home
\nRule Bill by Miss Anie Besant  had envisaged for India a constitution,
\nguaranteeing to every one of her free citizen freedom of expression,
\ninviolability of one’s house, right to property, equality before the law and
\nright to personal liberty.  The Indian National Congress at its special session
\nheld in Bombay in August 1918 demanded that the new Government of
\nIndia Act should include among other things, guarantees in regard to
\nequality before the law, protection in respect of peoples life and property,
\nfreedom of speech and press, and right of association.  A resolution passed at
\nthe Madras session of the Indian National Congress in 1927 categorically
\nlaid down that the basis of the future Constitution of India must be a
\ndeclaration of fundamental rights.  The Nehru Committee appointed by the
\nAll Party Conference in its report (1928) incorporated a provision for the
\nenumeration of such rights recommending their adoption as part of the future
\nConstitution of India and one of the rights recommended by it was
\nprotection in respect of punishment under ex-post facto laws.  The Sub-
\ncommittee on fundamental rights of the constituent assembly considered the
\ndraft proposed by its members.  Sri Ambedkar’s draft contained a provision –
\nNo Bill of attainder or ex-post facto law shall be passed.  After considering
\nthe draft of Sri K.M. Munshi and other members, the Sub-committee made
\nits recommendation which was adopted by the constituent assembly (See
\nThe Framing of India’s Constitution “A Study” by B. Shiva Rao  Chapter\n<\/p>\n
7).  The draft proposed by Sri Ambedkar and the Constitutional advisor Sri
\nB.N. Rao shows that the framers of our constitution while drafting Article 20<\/a>
\nhad the provisions of U.S. Constitution in their mind.\n<\/p>\n
7.\tSection 9 of Article 1<\/a> of U.S. Constitution as  adopted on July 4, 1776
\nprovides that no Bill of attainder or ex-post facto law shall be passed and
\nSection 10<\/a> of the same Article lays down that no State shall pass any bill of
\nattainder or ex-post facto law. The import of this constitutional guarantee
\nwas  explained two centuries ago by U.S. Supreme Court in Calder Versus
\nBull  1. L.Ed. 648, which has still held the field, in the following  words:
\n“(1) every law that makes an action done before the passing of the law, and
\nwhich was innocent when done, criminal and punishes such action (2) every
\nlaw that aggravates a crime, or makes it greater than it was when committed
\n(3) every law that changes the punishment, and inflicts a greater punishment
\nthan the law annexed to the crime when committed (4) every law that alters
\nthe legal rules of evidence, and receives less or different testimony than the
\nlaw required at the time of the commission of the offence in order to convict
\nthe offender.”  Chief Justice Marshall’s definition of an ex-post facto law in
\nFletcher v. Peck 3 L.Ed. 162- “One which  renders an act punishable in a
\nmanner in which it was  not punishable when it was committed”  has been
\nfollowed in many cases and jurists have said that a better or more accurate
\ndefinition has not been given.\n<\/p>\n
8.\tIt will be useful to briefly notice the interpretation placed on this
\nconstitutional guarantee by U.S. Supreme Court  which is as under :
\n(1)\tA Statute which punishes as a crime a previous act which was
\ninnocent when committed violates constitutional guarantee. (Calder v.
\nBull 3 U.S. 386, 1 L.Ed. 648; Beazell Vs. Ohio 269 US 167, 70
\nL.Ed.216)
\n(2)\t Legislation which aggravates the degree  of the crime resulting
\nfrom an act committed prior to its passage violates the Constitutional
\nprohibition.  (Flatcher v. Peck 10 U.S. 87, 3 L.Ed. 162.  Bonie v.
\nColumbia (1964) 378 US 347, 12 L.Ed. 2d. 894)
\n(3)\tLaw which imposes additional punishment to that prescribed
\nwhen a criminal act was committed is ex post facto (Cummings v.
\nMissouri 71 US 277, 18 L.Ed. 356, Lindsay v. Washington (1937) 301
\nUS 397, 81 L.Ed 1182).  The key question is whether the new law
\nmakes it possible for the accused to receive a greater punishment,
\neven though it is possible for him to receive the same punishment
\nunder the new law, as could have been imposed under the prior law.
\n(4)\tLegislation which in relation to that offence or its
\nconsequences alters the situation of a party to his disadvantage or
\nwhich eliminates, after the date of a criminal act, a defense available
\nto the accused person at the time the act was committed violates
\nconstitutional guarantee (Kring v. Missouri 107 US 221, 271. Ed. 506,
\nBezell v. Ohio 269 US 167, 70 L.Ed.216).\n<\/p>\n
(5)\tA law which alters the legal rules of evidence so as to require
\nless proof than the law required at the time of the commission of an
\noffence, in order to convict the accused, can amount to an ex-post
\nfacto law within the constitutional guarantee (Kring v. Missouri 107
\nUS 221, 27 L.Ed. 506, Beazell v. Ohio 269 US 167, 70  L.Ed. 216)
\n(6)\tConstitutional prohibition does not apply to laws bringing
\nabout changes in procedure which do not alter substantial rights, even
\nthough they might in some way operate to a person’s disadvantage. It
\ndoes not give defendants a vested right in the remedies and methods
\nof procedure employed in trials for crimes, provided that any statutory
\nprocedural change does not deprive the accused of a substantial right
\nor immunity possessed at the time of the Commission of the offence
\ncharged. (Hept v. People of Utah 110 US 574, 28 L.Ed. 262; Mallet v.
\nNorth Carolino 181 US 589, 45 L.Ed. 1015).\n<\/p>\n
(7)\tA change in law that alters a substantial right can be ex-post
\nfacto even if the statute takes a seemingly procedural form (Winston
\nv. State 118 A.L.R. 719; Miller v. Florida (1987) 482 US 423, 96
\nL.Ed. 2d. 351).\n<\/p>\n
         The above quoted view of the legal position has also been stated in 16-
\nA Corpus Juris Secundum Paras 409, 414, 420 and in 16 American
\nJurisprudence 2d paras 402, 404, 407.\n<\/p>\n
9.\tIn United Kingdom the Parliament being the supreme, the Courts
\ninterpret the penal laws in a manner that they do not have ex post facto
\noperation on the principle that Parliament would not pass retrospective
\ncriminal legislation.  In Waddington v. Miah (1974) 2 All E.R. 377; while
\nexamining the provisions of section 34<\/a> (1) (a) of the  Immigration Act<\/a>, 1971
\nwhich lays down that the Act, as from its coming into force, shall apply in
\nrelation to entrants or others arriving in the U.K. at whatever date before or
\nafter it comes into force, Lord Reid with whom all other Law Lords agreed,
\nobserved as follows:\n<\/p>\n
\t“I cannot see how section 34<\/a> (1)(a) can be construed as
\nhaving any reference to what any entrant may have done in this
\ncountry before the Act came into force.  All that it does is to
\nsubject to the provisions of the Act for the future, any one who
\nentered in the past.”\n<\/p>\n
           In R. v. Kirk (1985) 1 All E.R. 453 the Court of Justice of the
\nEuropean Economic Community observed as follows:
\n\t“The principle that penal provisions may not have
\nretrospective effect is one which is common to all the legal
\norders of the member states and is enshrined in art.7<\/a> of the
\nEuropean Convention for the Protection of Human Rights and
\nFundamental Freedoms (Rome, 4 November 1950; TS 71
\n(1953); Cmd 8969) as a fundamental right; it takes its place
\namong the general principles of law whose observance is
\nensured by the Court of Justice.\n<\/p>\n
\tConsequently the retroactivity provided  for in art. 6(1)<\/a>
\nof Regulation 170\/83 cannot be regarded as validating ex post
\nfacto national measures which imposed criminal penalties, at
\nthe time of the conduct at issue, if those measures were not
\nvalid.\n<\/p>\n
10.   This shows that the principle that penal provisions may not have
\nretroactive effect is observed by member-nations of European Economic
\nCommunity of which almost all the democracies of Western Europe are
\nmembers.\n<\/p>\n
11.      In fact it is not a new principle but is coming down from ancient
\ntimes will be clear from the following passage on the topic of legislation in
\n“Jurisprudence  The Philosophy and Method of the Law” by Edger
\nBodenheimer (First Indian Reprint 1996) at page 327:
\n\t“Another typical feature of a legislative act, as
\ndistinguished from a judicial pronouncement, was brought out
\nin Mr. Justice Holmes’s opinion in Prentis v. Atlantic Coastline
\nCo.   As he pointed out in this opinion, while a “Judicial inquiry
\ninvestigates, declares and enforces liabilities as they stand on
\npresent or  past facts and under laws supposed already to exist,”
\nit is an important characteristic of legislation that it “looks to
\nthe future and changes existing conditions by making a new
\nrule to be applied thereafter to all or some part of those subject
\nto its power.”  These passages must be understood as
\nelucidating certain normal and typical aspects of legislation
\nrather than stating a conditio sine qua non, an essential
\ncondition, of all legislative activity.  The large majority of
\nenactments passed by legislatures take effect ex nune, that is,
\nthey are applied to situations and controversies that arise
\nsubsequent to the promulgation of the enactment.  It is a
\nfundamental requirement of fairness and justice that the
\nrelevant facts underlying a legal dispute should be judged by
\nthe law which was in existence when these facts arose and not
\nby a law which was made post factum (after the fact) and was
\ntherefore necessarily unknown to the parties when the
\ntransactions or events giving rise to the dispute occurred. The
\nGreeks frowned upon ex post facto laws, laws which are
\napplied retrospectively to past-fact situations   The Corpus Juris
\nCivilis of  Justinian proclaimed a strong presumption against
\nthe retrospective application of laws    Bracton introduced the
\nprinciple into English law   Coke and Blackstone gave currency
\nto it ,  and the principle is recognised today in England as a
\nbasic rule of statutory construction.  In the United States, ex
\npost facto laws in criminal cases and retrospective state laws
\nimpairing the obligation of contracts are expressly forbidden by
\nthe terms of the federal Constitution; in other types of
\nsituations, a retroactive legislative infringement of vested rights
\nmay present a problem of constitutional validity under the due
\nprocess clause of the Constitution.”\n<\/p>\n
\tArticle 11(2)<\/a> of the Declaration of Human Rights of the United
\nNations lays down as under:\n<\/p>\n
\t“No one shall be held guilty of any penal offence on
\naccount of any act or omission which did not constitute a penal
\noffence, under national or international law, at the time when it
\nwas committed.  Nor shall a heavier penalty be imposed than
\nthe one that was applicable at the time the penal offence was
\ncommitted.”\n<\/p>\n
Article 7<\/a> of the Convention for the Protection of Human Rights and
\nFundamental Freedoms reads as under:\n<\/p>\n
“(1)\tNo one shall be held guilty of any criminal offence on
\naccount of any act or omission which did not constitute a
\ncriminal offence under national or international law at the time
\nwhen it was committed, nor shall a heavier penalty be imposed
\nthan the one that was applicable at the time the criminal offence
\nwas committed.\n<\/p>\n
(2)\tThis Article shall not prejudice the trial and punishment
\nof any person for any act or omission which, at the time when it
\nwas committed, was criminal according to the general
\nprinciples of law recognised by civilised nations.”\n<\/p>\n
12.     India is a member of the United Nations Organization and is also a
\nsignatory to the aforesaid Conventions.  In Peoples Union for Civil Liberty
\nv. Union of India<\/a> (1997)1 SCC 301 the Court recognised the principle that it
\nis almost an accepted proposition of law that rules of customary international
\nLaw, shall be deemed to be incorporated in the domestic law.  For holding
\nthis the Court relied upon the observation made by Sikri, C.J. in Keshava
\nNanda Bharati (1973) 4 SCC 225 (at page 333) that  in view of Article 51<\/a> of
\nthe directive principles the Court must interpret the language of the
\nconstitution if not intractible in the light of the United Nation Charter and
\nthe solemn declaration subscribed to by India.  The court also took notice of
\nsimilar observation made by Khanna, J. in A.D.M. Jabalpur (1976) 2 SCC
\n521 (at page 754) that if two constructions of the Municipal Law are
\npossible, the court should lean in favour of adopting such construction as
\nwould make the provisions of the  Municipal Law to be in harmony with
\ninternational law or treaty obligations.  Applying this principle Article 21<\/a> of
\nthe Constitution was interpreted in conformity with the International Law.
\nOn the same analogy Article 20<\/a> may have to be interpreted in conformity
\nwith United Nations Charter and Conventions.\n<\/p>\n
13.     A literal interpretation of sub-clause (1) of Article 20<\/a> would mean that
\nthe protection available is only against conviction for an act or omission
\nwhich was not an offence under the law in force when the same was
\ncommitted and against infliction of a greater penalty than what was provided
\nunder the law in force when the offence was committed.  Constitution being
\na living organic document needs to be construed in a broad and liberal sense.
\nA construction most beneficial to the widest possible amplitude of its powers
\nmay have to be adopted.  Of all the instruments, the constitution has the
\ngreatest claim to be construed broadly and liberally (See M\/s. Good Year
\nIndia Ltd. v. State of Haryana<\/a> AIR 1990 SC 781 at 791 and Synthetics and
\nChemicals Ltd. v. State of U.P<\/a>. AIR 1990 SC 1927 at 195).  The following
\nobservation of Vivian Bose, J. in State of West Bengal v. Anwar Ali Sarkar<\/a>,
\nAIR 1952 SC 75 (pgs. 85 and 86) though given immediately after
\nenforcement of the Constitution has become more relevant now.
\n\t“I find it impossible to read these portions of the
\nConstitution without regard to the background out of which
\nthey arose.  I cannot blot out their history and omit from
\nconsideration the brooding spirit of the times.  They are not just
\ndull lifeless words static and hinebound as in some mummified
\nmanuscript, but living flames intended to give life to great
\nnation and order its being, tongues of dynamic fire potent to
\nmould the future as well as guide the present.  The constitution
\nmust, in my judgment, be left  elastic enough to meet from time
\nto time the altering conditions of a changing world with its
\nshifting emphasis and differing needs..
\nDoing that, what is the history of these provisions?  They arose
\nout of the fight for freedom in this land and are but the
\nendeavour to compress into a few pregnant phrases some of the
\nmain attributes of the sovereign democratic republic as seen
\nthrough Indian eyes.  There was present to  the collective mind
\nof the Constituent Assembly, reflecting the mood of the peoples
\nof India, the memory of grim trials by hastily constituted
\ntribunals with novel forms of procedure set forth in Ordinance
\npromulgated in haste because of what was then felt to be the
\nurgent necessities of the moment.\n<\/p>\n
14.     Concerned as it is with the liberty of a person  a liberal construction
\nhas to be given to the language used in clause (1) of Article 20<\/a> and not a
\nnarrow one .  The interpretation given to Section 9 of Article 1<\/a> of American
\nConstitution by U.S. Supreme Court may also be kept in mind for the
\npurpose of understanding the true content and scope of guarantee enshrined
\nin sub-clause (1) of Article 20<\/a> of Constitution of India.\n<\/p>\n
15.   Whether constitutional guarantee enshrined in clause (1) of Article 20<\/a>
\nis  confined  only to  prohibition against  conviction for any offence except
\nfor violation of law in force at the time of the commission of the act charged
\nas an offence and subjection to a penalty greater than that which might have
\nbeen inflicted under the law in force at the time of commission of offence or
\nit also prohibits legislation which aggravates the degree of crime or makes it
\npossible for the accused to receive greater punishment  even though it is also
\npossible for him to receive the same punishment under the new law as could
\nhave been imposed under the prior law or deprives the accused of any
\nsubstantial right or immunity possessed at the time of the commission of the
\noffence charged is a moot point to be debated.\n<\/p>\n
16.        The effect of the Amending Act<\/a> on the right of the accused to prefer
\nan appeal or revision against an order of conviction may be examined first.
\nNormally  in  view  of  Section 49-C<\/a> (1)  the  offences  under  the  Act
\nwhere the compensation to be awarded is upto the value of  Rs. Five lakhs
\nhave  to be  tried  by  the  Special  Tribunal  which  is  a  Court  of  District
\nand Sessions Judge.  The  Special  Tribunal  may,  if  it  is  of  the  opinion
\nthat it is a fit case to be tried by the Special Court and for reasons to be
\nrecorded,  transfer the case to the Special Court.  Sub-section (2) of Section
\n49-C<\/a> provides for an appeal against any judgment or order, not being  an
\ninterlocutory order of the Special Tribunal, to the Special Court.  Sub-
\nsection (2) of section 49-E<\/a> attaches finality to the decision of the Special
\nCourt  where  the case  is of the nature mentioned in Sub-section (1).
\nSection 49-F<\/a> lays down that the provisions of Code<\/a> of Criminal Procedure,
\n1973, in so far as they are not inconsistent with the provisions of the
\nAmending Act<\/a> shall apply to the proceedings before the Special Court and
\nfor the purpose of  provisions of the said enactment the Special Court shall
\nbe deemed to be a Court of Session and have all the powers of Court of
\nSession.  Section 374<\/a> (2) of the Code<\/a>  gives a right to a person convicted on
\na trial held by a Sessions Judge to prefer an appeal to the High Court and in
\nview of Section 26<\/a> (a)(ii) of the Code<\/a> the Court of Sessions means a
\nSessions Judge.  Therefore it follows that  except  for such category of cases
\nwhich are covered by section 49-E<\/a> (2) of the Amending Act<\/a>, there would be
\na right of appeal to the High Court against a conviction recorded by the
\nSpecial Court.  Similarly in a case where conviction has been recorded by
\nthe Special Tribunal and the appeal has been heard by the Special Court
\nunder sub-section (2) of section 49-C<\/a>, a revision would  lie to the High Court
\nunder section 401<\/a> of the Code.\n<\/p>\n
17.\tThe prescription of summary procedure for trial of offences has been
\nseriously challenged.   Sub-section (7) of Section 49-C<\/a> provides that
\nnotwithstanding anything contained in sections 260<\/a> or 262 of the Code<\/a> of
\nCriminal Procedure  the trial of every offence under the Act is to be done in
\na summary way and the provisions of sections 263<\/a> to 265<\/a> of the Code shall,
\nas far as may be, apply to such trials.  Chapter XXI of the Code of Criminal
\nProcedure deals with summary trials.  In view of the mandate of clause (i) of
\nsub-section (1) of section 260<\/a> of the Code an offence which is punishable
\nwith a sentence exceeding two years cannot be tried in a summary way.
\nSimilarly, in view of sub-section (2) of section 262<\/a> of the Code  a sentence
\nof imprisonment for a term exceeding three months cannot be passed in a
\nsummary trial.  In fact sub-section (2) of section 260<\/a> of the Code  provides
\nthat when in the course of summary trial it appears to the Magistrate that the
\nnature of the case is such that it is undesirable to try it summarily, the
\nMagistrate shall recall any witness who may have already been examined
\nand proceed to rehear the case in the manner provided by the Code<\/a>. A
\nMagistrate, while trying a case summarily, is required to record  only the
\nsubstance of the evidence and a brief statement of reasons for the finding has
\nto be mentioned in the judgment in view of Section 264<\/a> of the Code.    In
\nsummary trials, there is a clear departure from the procedure prescribed for
\ntrial of other category of  cases as they are primarily meant for petty or small
\ncases where a sentence exceeding three months cannot be imposed.  But
\nSection 2<\/a> of the Amending Act by which section 39<\/a> of the Electricity Act,
\n1910 has been amended  has enhanced the sentence which may extend to
\nfive years R.I. but  shall not be less than three months and a fine which may
\nextend to Rs.50,000\/- but shall not be less than Rs.5,000\/-.  The proviso
\nimposes a further disability upon the person convicted in the sense that he
\nshall be debarred from getting supply of energy for a period of two years.
\nThe trial of all such cases is now mandatorily to be conducted as a summary
\ntrial and provisions of sections 263<\/a> to 265<\/a>  of Code of Criminal Procedure
\nalone have been made applicable.  The provision of section 354<\/a> of the Code
\nrelating to language and content of judgment where the Court has to mention
\nthe point or points for determination, the decision thereon and the reasons
\nfor the decision, is in  sharp contrast to section 264<\/a> of the Code.  If the
\ncomplete statement of witnesses is not recorded in the manner deposed to by
\nthe witnesses and only a substance of the evidence is recorded  the appellate
\ncourt will not be in a position to weigh the evidence properly and come to an
\nindependent conclusion.  These provisions where summary trial has been
\nprovided, therefore, cause serious prejudice and substantial injury to the
\naccused.\n<\/p>\n
18.\tThe main  problem will arise where the Special Court itself tries the
\ncase of the type described in sub-section (1) of section 49-E of the Amended
\nAct in view of the bar created by sub-section (2) of the said section whereby
\nfinality is attached to the decision of the Special Court. The  appeal is the
\nright of entering a superior Court and invoking its aid and interposition to
\nredress an error  of the court below.  Though procedure does surround  an
\nappeal the central idea is a right.  The right of appeal has been recognised by
\njudicial decisions as a right which vests in a suitor at the time of institution
\nof original proceedings. S.R. Das, CJ. in Garikapati v. Subbiah Choudhary
\nAIR 1957 SC 540, following the decision of the Privy Council in Colonial
\nSugar Refining Company v. Irving 1905 AC 369 and on a review of earlier
\nauthorities deduced  the following five propositions regarding an appeal, viz.\n<\/p>\n
– (i) The legal pursuit of a remedy, suit, appeal and second appeal are really
\nbut steps in a series of proceedings all connected by an intrinsic unity and
\nare to be regarded as one legal proceeding; (ii) the right of appeal is not a
\nmere matter of procedure but is a substantive right; (iii) the institution of the
\nsuit carries with it the implication that all rights of appeal then in force are
\npreserved to the parties thereto till the rest of the carrier of the suit; (iv) the
\nright of appeal is a vested right and such a right to enter the superior court
\naccrues to the litigant and exists as on and from the date the lis commences
\nand although it may be actually exercised when the adverse judgment is
\npronounced, such right is to  be governed by the law prevailing at the date of
\nthe institution of the suit or proceeding and not by the law that prevails at the
\ndate of its decision or at the date of filing of appeal; (v) this vested right of
\nappeal can be taken away only by a subsequent enactment if it so provides
\nexpressly or by necessary intendment and not otherwise.  Therefore if the
\nright of appeal is a substantive right which is really a step in  series of
\nproceedings all connected by an intrinsic unity and is to be regarded as one
\nlegal proceeding and further being a vested right  such a right to enter the
\nsuperior court accrues to the litigant and exists as on and from the date the
\nlis commences then  sub-section (2) of Section 49-E<\/a> insofar as it makes the
\ndecisions of the Special Court final and also makes no provision of appeal
\nclearly causes prejudice and substantial injury to the  accused.\n<\/p>\n
19.\tShri Shanti Bhushan learned senior counsel for the appellant  has
\nsubmitted that the mere fact that a right of appeal is taken away does not
\nmean that an accused is rendered remediless, as he can always challenge the
\ndecision of  the Special Court by preferring a writ petition under Article 226<\/a>
\nof the Constitution before the High Court.  In our opinion the contention
\nraised is wholly misconceived.  In proceedings under Article 226<\/a>, the High
\nCourt cannot sit as a court of appeal over the findings recorded by the
\nSpecial Court to reappreciate the evidence for itself or to correct an error of
\nfact (not going to jurisdiction) however apparent it might be on the ground
\nthat the evidence on which it was based was not satisfactory or sufficient,
\nparticularly when the finding of the Special Court is final under the Statute.
\nThe High Court cannot interfere with the findings of fact based on evidence
\nand substitute its own independent findings.  The only inquiry which the
\nHigh Court can make under Article 226<\/a> is whether there was any evidence at
\nall, which if believed,  would sustain the charge before the Special Court or
\nthe finding arrived at by it or whether the Special Court acted upon
\nirrelevant considerations neglecting to take account of relevant factors or
\nwhether the decision is so unreasonable that no reasonable person would
\nhave made such a decision.  The proceedings under Article 226<\/a> are not a
\nsubstitute for an appeal.  More so,  as under  section 386<\/a> of the Code there is
\nno embargo on the power of the appellate court.  In an appeal from a
\nconviction it may reverse the finding and sentence and acquit or discharge
\nthe accused or order him to be re-tried by a court of competent jurisdiction.
\nThe conferment of power of review upon the Special Court under Section
\n49-G<\/a> is again no substitute for an appeal as such a power is circumscribed
\nby the language used in this section and can be granted on a very limited
\ngrounds.  Therefore, sub-section (2) of section 49-E<\/a> of the Amending Act
\ncauses prejudice and serious  injury to the accused.\n<\/p>\n
20.\tThe High Court in the impugned judgment has held that though  in
\nview of language used in sub-section (5) of section 49-C<\/a> all pending cases
\nmay be transferred, but no right of appeal or revision can be taken away, nor
\nan accused can be deprived of a better procedure in view of the provisions of
\nArticles 20 and 21 of the Constitution.   Accordingly it held that sub-section
\n(5) of section 49-C<\/a> should be read down whereunder pending cases of the
\nnature before the Metropolitan Court cannot be transferred to the Special
\nTribunal and the writ petitioner should be tried in the regular criminal Courts
\nin terms of the provisions of Code<\/a> of Criminal Procedure.\n<\/p>\n
21.\tHowever, as the interpretation of Article 20<\/a> as to its scope and ambit
\nis involved in these proceedings, we refer the question formulated in para 15
\nof this order to a larger bench for consideration.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Transmission Corporation Of A.P vs Ch. Prabhakar & Ors on 26 May, 2004 Bench: Cji, G.P. Mathur 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-268909","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nTransmission Corporation Of A.P vs Ch. Prabhakar & Ors on 26 May, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/transmission-corporation-of-a-p-vs-ch-prabhakar-ors-on-26-may-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Transmission Corporation Of A.P vs Ch. 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