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TMI Blog2004 (5) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... eded 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 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 ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 50,000/- but shall not be less than ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revailing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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