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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

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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\005\005\005\005(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)     \005\005\005\005\005\005\005 (7)     Notwithstanding  anything contained in section 260  or

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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\005\005\005\005..(omitted as not relevant)

(4)     \005\005\005\005\005.

(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)     \005\005\005.

(7)     \005\005\005..

(8)     \005\005\005.

(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

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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)    \005\005\005\005\005..

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\005\005\005..

(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)      \005\005\005\005\005.

(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)     \005\005\005\005\005.

(6)     \005\005\005\005\005.

(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)     \005\005\005\005\005.

(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.

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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 \026 described as Home  Rule Bill by Miss Anie Besant \026 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 \026 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.

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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" \026 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.

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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 \026 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

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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

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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\005\005\005\005\005\005\005\005..  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

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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

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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.