Holding

The Supreme Court held that the constitutional issues concerning the scope of Article 20(1) and the validity of sub‑section (5) of Section 49‑C are substantial and referred the questions to a larger bench for determination.

Summary

The case arose when a flour mill owned by the writ petitioners was found to be stealing electricity, leading to an FIR and trial under the Indian Electricity Act, 1910. While the trial was pending before a Metropolitan Magistrate, Andhra Pradesh amended the Act (2000) to create Special Tribunals and Courts, increase punishments, and make pending cases transferable to these special bodies, effectively removing the right of appeal. The petitioners challenged the amendment as ultra vires and as violating Article 20(1) of the Constitution by imposing harsher punishment and denying appeal retrospectively. The High Court held the amendment constitutionally valid but read down s.49‑C(5) to prevent transfer of pending cases, directing the trial to continue in the ordinary criminal court. The Supreme Court, noting that the scope of Article 20(1) and the validity of s.49‑C(5) involve substantial constitutional questions, referred the matter to a larger bench.

Issues considered

The Andhra Pradesh Legislature's competence to amend the Indian Electricity Act, 1910.
Whether the 2000 amendment's retrospective transfer of pending cases to Special Tribunals violates Article 20(1) (ex‑post‑facto) and Article 21 of the Constitution.
Whether sub‑section (5) of Section 49‑C, which mandates transfer of pending cases to Special Tribunals, should be read down to protect the accused's right of appeal and procedural safeguards.
The constitutionality of summary trial provisions and the denial of appeal under Sections 49‑C, 49‑D, 49‑E, and 49‑F of the Amending Act.

Legislation cited

Code of Civil Procedure, 1908
Code of Criminal Procedure, 1973s. 260, s. 262, s. 263, s. 264, s. 265, s. 374(2), s. 386, s. 401
Constitution of Indias. Article 20, s. Article 21, s. Article 254(2)
Electricity Act, 1910s. 39, s. 49-C, s. 49-D, s. 49-E, s. 49-F

Subjects

ex‑post‑factoArticle 20Special TribunalRetrospective legislationLegislative competenceSummary trialRight of appealConstitutional validityIndian Electricity Act

Judgment

TRANSMISSION CORPORATION OF A.P. A
v.
CH. PRABHAKAR AND ORS.

MAY 26, 2004

B
(S. RAJENDRA BABU, CJ. AND G.P. MATHUR, J.]

Indian Electricity Act, 1910 :

Ss. 39, 49-C, 49cD and 49 as amended by Indian Electricity (Andhra C
Pradesh Amendment) Act, 2000-Amendment Act, inter alia, providing for
more severe punishment, trial of offences by Special Tribunal/Special
Court and transfer ofpending cases to Special Tribunal/Special Court-
Constitutional validity of-High Court opined that though in view of
language used in sub-section (5) of s.49-C all pending cases may be
transferred, but no right of appeal or revision can be taken away, nor an D
accused can be deprived of a better procedure in view of the provisions
of Articles 20 and 21 of the Constitution, and held that sub-s, (5) of s.49-
C should be read down whereunder pending cases of the nature before the
Metropolitan Court cannot be transferred to Special Tribunal and writ
petitioner should be tried in regular criminal court in terms ofprovisions E
of Code of Criminal Procedure-Held, since interpretation of Article 20
as to its scope and ambit is involved in these proceedings, matter is referred
to larger Bench-Constitution of India Article 20.

Constitution of India, 1950 :
F
Article 20-1ndian Electricity Act, 1910 as amended by Indian
Electricity (Andhra Pradesh Amendment) Act, 2000-Ss. 39, 49-C, 49-D
and 49-E-Constitutional validity of-Question : 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 G
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
ppssible for the accused to receive greater punishment even though it is H
759
760 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.
A 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
ofany substantial right or immunity possessed at the time ofthe commission
of the offence charged-Referred to larger Bench.

B Article 254(2), Seventh Schedule-List III-Entry 38-Indian
Electricity (Andhra Pradesh Amendment) Act, 2000 amending Indian
Electricity Act, 1910-Legislative competence of State Legislature-Held,
Entry 38 in the concurrent List of Seventh Schedule is 'Electricity'-
Andhra Pradesh Legislature had the legislative competence to make law
on the subject of electricity and to make amendments to Indian Electricity
C Act, 1910-Amending Act has also received the assent of the President of
India and therefore in view of Article 254(2), it shall prevail.

Peoples Union for Civil Libertyv. Union ofIndia, 1199711SCC301;
His Holiness Keshuva Nanda Bharati Sripadagalvaru v. State of Kera/a
D and Anr., 11973) 4 sec 225; A.D.M Jabalpur v. Shivakant Shukla, [19761
2 SCC 521; Mis. Good Year India Ltd. v. State of Haryana, AIR (1990)
SC 781; Synthetics and Chemicals Ltd. v. State of UP., AIR (1990) SC
1927; State of West Bengal v. Anwar Ali Sarkar, AIR (1952) SC 75,
referred to.
E
Calder v. Bull, 1 L.Ed. 648; Fletcher v. Peck, 3 L.Ed. 162; Beazell
v. Ohio, 269 US 167, 70 L.Ed. 216; Bone v. Columbia, (1964) 378 US
347, 12 L.Ed, 2d. 894; Cummings v. Missouri, 71 US 277, 18 L.Ed. 356;
Lindsay v. Washington, (1937) 301 US 397, 81 L.Ed. 1182; Kring v.
F Missouri, 107 US 221, 271, Ed. 506; Hept v. People of Utah, 110 US 574,
28 L.Ed. 262; Mallet v. North Carolina, 181 US 589, 45 L.Ed. 1015;
Winston v. State, 118 A.L.R. 719; Miller v. Florida, (1987) 482 US 423,
96 L.Ed. 2d. 351; Waddington v. Miah, (1974) 2 All E.R. 377; R v. Kirk,
(1985) 1 All E.R. 453, referred to.

G The Framing of Indian's Constitution "A Study" by B. Shiva Rao,
Chapter 7, referred to.

U.S. Constitution, Declaration of Human Rights of the United
Nations; Convention for the Protection ofHuman Rights and Fundamental
H Feedoms; Edger Bodenheimer "The Philosophy and Method of the Law"·
TRANSMISSION CORPN. v. PRABHAKAR [G.P. MATHUR, J.] 761

(First Indian Reprint 1996), p. 327, referred to. A
Corpus Juris Secundum, Paras 409, 414, 420, 16 American
Jurisprudence 2d paras 402, 404 and 407, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6131 of
2002. 13
From the Judgment and Order dated 8.6.2001 of the Andhra Pradesh
High Court in W.P. No. 6752 of 2001.

Shanti Bhushan and Ashok Grover, Sanjai Pathak and Rakesh K. C
Sharma for the Respondent.

Mahendra Anand, Ms. K. Sarda Devi (SCLSC), T.V. Ratnam and K.
Subba Rao for the Respondents.

The following Order of the Court was delivered : D

G.P. MATHUR, J. : I. 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 E
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 F
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 G
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 oflndia and
thereafter it was published in the Andhra Pradesh Gazette on 2.1.2000 H
762 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A 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
B 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
C 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:
D
''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
E to three years, or with fine which shall not be less than one
thousand rupees, or with both", the words "imprisonment for a
term which may extend to five years but which shall not be less
than three months and with fine which may extend to fifty
thousand rupees but which shall not be less than five thousand
F 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
G for a period of two years."

49-C (I) 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
H District or Districts, a Court of District and Sessions Judge to be
TRANSMISSION CORPN. v. PRABHAKAR [G.P. MATHUR, J.) 763

a Special Tribunal to try the offences under this Act and determine A
the compensation \o be awarded to the Electricity utility 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 B
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. C
Every appeal under this sub-section shall be preferred within a
period of sixty days from the date of judgment or order of the
special Tribunal.

Provided ........ (omitted as not relevant) D

(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. E
(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 F
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:
G
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. I-I
764 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A (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
B
such commencement.

(6) ··························

(7) Notwithstanding anything contained in section 260 or
c 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.

D 49-D. (I) 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.
E
(2) A special Cou1t 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
F persons who are or have been District Judges (hereinafter referred
to as Judicial Members) and the other t\vo members, shall be
persons with a Degree in Electrical Engineering and who hold or
have held a post not below the rank ofa Chief Engineer in a State
Electricity Board or its successor entities or a post not below the
G rank of a Chief Electrical Inspector in the State Government
(hereinafter referred to as Technical Members)

Provided................ (omitted as not relevant)

H (4) .............. .
TRANSMISSION CORPN. v. PRABHAKAR [G.P. MATHUR, J.] 765

(5) (a) Subject to the other provisions of this Act, the A
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
B
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 mo to or C
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
(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 E
opinion, and the decision or order shall follow that opinion.

(6) ...............
(7) ...............
F
(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 G
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 H
766 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A punishable under this Act shall be tried in a summary way by the
Special Court and the provisions of the §ections 263 to 265 of the
said Code shall, as far as may be apply to such trial.

(10) ............... .

B
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
c five lakhs and pass such orders (including orders by way of
interim directions) as it deems fit.

Provided............... .

D (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 (I) shall be triable
only in the special court and the decision of the Special Court shall
E be final.

(3)

(4) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, it shall be lawful for the Special Court to try all
F offences punishable under this Act.

(5) .............. .

(6) ···············
G
(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.

H (8) ···············
- .. TRANSMISSION CORPN. v. PRABHAKAR [G.P. MATiillR, J.] 767

(9) Any case, pending before any court or other authority A
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. B
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, C
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 D
Public Prosecutor.

4. Two contentions were raised before the High Court. The first
contention was that the Andhra Pradesh Legislature had no legislative
competence to amend the Indian Electricity Act and the second contention E
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 Vllth Schedule of the Constitution
of India is 'Electricity'. Therefore Andhra Pradesh Legislature had the F
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 oflndia 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 G
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 H
768 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A 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
B 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 (I) of
C Article 20 of the Constitution. The inclusion ofa set ofFundamental 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
D 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 s~rengthened the demand for a
E constitutional guarantee of fundamental rights. As early as 1895, the
Constitution of India Bill - described as Home Rule Bill by Miss Anie
Besant - had envisaged for India a constitution, guaranteeing to every one
of her free citizen freedom of expression, inviolability of one's house, right
to property, equality before the law and right to personal liberty. The
F 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
G basis of the future Constitution oflndia 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
H punishment under ex-post facto laws. The Sub-committee on fundamental
TRANSMISSION CORPN. v. PRABHAKAR [G.P. MATHUR, J.] 769

rights of the constituent assembly considered the draft proposed by its A
members. Sri Ambedkar's draft contained a provision - No Bill of
attainder or ex-post facto Jaw shall be passed. After considering the draft
of Sri K.M. Munshi and other members, the Sub-committee made its
·I
recommendation which was adopted by the constituent assembly (See The
Framing of India's Constitution "A Study" by B. Shiva Rao Chapter 7). B
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 I of U.S. Constitution as adopted on July 4, C
1776 provides that no Bill of attainder or ex-post facto Jaw shall be passed
and Section I 0 of the same Article Jays down that no State shall pass any
bill of attainder or ex-post facto Jaw. The import of this constitutional
guarantee was explained two centuries ago by U.S. Supreme Court in
Calder v. Bull. I. L.Ed. 648, which has still held the field, in the following D
words: "(!) every law that makes an action done before the passing of
the Jaw, and which was innocent when done, criminal and punishes such
action (2) every Jaw 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 E
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 te>convict the offender." Chief Justice
Marshall's definition of an ex-post facto law in Fletcher v. Peck, 3 L.Ed.
162- "One which renders an act punishable in a manner in which it was
not punishable when it was committed" has been followed in many cases F
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 : G

(I )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, I L.Ed. 648; Beazell v. Ohio, 269
us 167, 70 L.Ed.216) H
770 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A (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)

B (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) 301US397, 81L.Ed1182). The key question is whether
the new law makes it possible for the accused to receive a greater
c 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
D
or which elirninates, after the date of a criminal act, a defense
available to the accused person at the time the act was commitled
violates constitutional guarantee (Kring v. Missouri, 107 US
221, 271. Ed. 506, Bezel/ v. Ohio, 269 US 167, 70 L.Ed.216).

E (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, Beaze/l v. Ohio, 269
F 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
G 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
H Carolino, 181 US 589, 45 L.Ed. 1015).
TRANSMISSION CORPN. v. PRABHAKAR [G.P. MATHUR, J.] 771

(7)A change in law that alters a substantial right can be ex-post A
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 B
16-A Corpus Juris Secundum Paras 409, 414, 420 and in 16 American
Jurisprudence 2d paras 402, 404, 407.

9. In United Kingdom the Parliament being the supreme, the Courts
interpret the penal laws in a manner that they do not have ex post facto C
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 D
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 (l)(a) can be construed as
having any reference to what any entrant may have done in this E
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 F
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 G
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.
H
772 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A 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.

B I 0. This shows that the principle that penal provisions may not have
retroactive effect is observ¢d by member-nations of European Economic
Community of which almost all the democracies of Western Europe are
members.

C 11 . In fact it is not a new principle but is coming down from ancient
times will be clear from the following passage on the topic of legislation
in "Jurisprudence - The Philosophy and Method of the Law'' by Edger
Bodenheimer (First Indian Reprint 1996) at page 327:

"Another typical feature of a legislative act, as distinguished
D
from a judicial pronouncement, was brought out in Mr. Justice
Holmes's opinion in Prentis v. Atlantic Coastline Co. 1 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
E characteristic oflegislation 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,
F 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
G 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 postfactum (after the fact) and was therefore necessarily
unknown to the parties when the transactions or events giving rise

H 1. 211 us 210. at 226
TRANSMISSION CORPN. v. PRABHAKAR [G.P. MATHUR, J.] 773

to the dispute occurred. The Greeks frowned upon ex post facto A
laws, laws which are applied retrospectively to past-fact situations2..
The Corpus Juris Civilis of Justinian proclaimed a strong
presumption against the retrospective application oflaws3• Bracton
introduced the principle into English law'. Coke and Blackstone
gave currency to it5, and the principle is recognised today in B
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 C
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:
D
"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 E
committed."

Article 7 of the Convention for the Protection of Human Rights and
Fundamental Freedoms reads as under:

F
"(!) No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a criminal

2. See Paul Vinogradoff, Outlines of Historical Jurisprudence, II, 139-140; Elmer E.
Smead, "The Rule Against Retrospective Legislation; A Basic Principle of
Jurisprudence, "20 Minnesota Law Review 775 (1936) G
3. Code I, 14, 7 "It is certain that the laws and constitutions regulate future matters,
and have no reference to such as are past, unless express provision is made for past
time, and for matters which are pending "S.P. Scott, The Civil Law (Cincinnati, 1932)
4. Henry De Bracton, De Legibus et Consuetudinibus Angaliae, ed. G.S. Woodbine.
5. Edward Coke, TI1e Institutes 4th ed. (London, 1671), P. 292; William Blackstone
Commentaries on the Laws of England ed. WC Jones (San Francisto, 1916), Vol. 1, H
sec. 46.
774 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A 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
B 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
C a signatory to the 1aforesaid 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
D by Sikri, C.J. in Keshava Nanda Bharati [1973] 4 sec 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 t J 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
E constructions of the Municipal Law arc, 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
F 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
G 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 1iberal sense. A construction most beneficial to the widest
H possible amplitude of its powers may have to be adopted. Of all the
TRANSMISSION CORPN. v. PRABHAKAR [G.P. MATHUR, J.) 775

instruments, the constitution has the greatest claim to be construed broadly A
and liberally (See Mis. Good Year India Ltd. v. State ofHaryana, AIR 1990
SC 781 at 791 and Synthetics and Chemicals Ltd. v. State of U.P., AIR
I 990 SC I 927 at 195). The following observation of Vivian Bose, J. in
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 7.5 (pgs. 85 and
86) though given immediately after enforcement of the Constitution has B
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 C
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 D
left elastic enough to meet from time to time the altering
conditions of a changing world with its shifting emphasis and
differing needs ............................................................................ .
Doing that, what is the history of these provisions? They arose
out of the fight for freedom in this land and are but the endeavour E
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!ndia,
the memory of grim trials by hastily constituted tribunals with
novel forms of procedure set forth in Ordinance promulgated in F
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 (I) of Article G
20 and not a narrow one. The interpretation given to Section 9 of
Article I 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 (!)of Article 20 of Constitution of
~ia. H
776 SUPREME COURT REPORTS [2004) SUPP. 2 S.C.R.

A 15. Whether constitutional guarantee enshrined in clause (I) 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
B 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
C 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
D examined first. Normally in view of Section 49-C(l) 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-
E 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 (!). Section 49-F lays down that the provisions of Code
F 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
G a person convicted on a trial held by a Sessions Judge to prefer an appeal
to the High Court and in view of Section 26(a)(ii) of the Code the Court
of Sessions means a Sessions Judge. Therefore it follows that except for
such category of cases which are covered by section 49-E(2) of the
Amending Act, there would be a right of appeal to the High Court against
H a conviction recorded by the Special Court. Similarly in a case where
!~
I
TRANSMISSION CORPN. v. PRABHAKAR [G.P. MATHUR, J.] 777

conviction has been recorded by the Special Tribunal and the appeal has A
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 B
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 XX! of the Code of
Criminal Procedure deals with summary trials. In view of the mandate of C
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 D
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 E
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 F
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 G
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 H
778 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A 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
B 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.
C the case of the type described in sub-section (I) 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
D 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. Suhbiah Choudhary, AIR (1957) SC 540, following the
decision of the Privy Council in Colonial Sugar Refining Company v.
E Irving, [l 905] 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 pmceedings all connected by an intrinsic unity and are to be r~garded
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
F 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 !is commences and
although it may be actually exercised when the adverse judgment is
G 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
a\ the-date of its decision or at the date of filing of appeal; (v) this vested

-·
right of appea~ can be taken away only by a subsequent enactment if it so
provides expressly or by necessary intendment and not otherwise. Therefore
H if the right of appeal is a substantive right which is really a step in series
TRANSMISSION CORPN. v. ,PRABHAKAR [G.P. MATHUR, J.] 779

of proceedings all connected by an intrinsic unity and is to be regarded A
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 B
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 C
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 i~ 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 D
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 E
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 F
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 ofreview G
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. H
780 SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R.

A 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
B 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.
c 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.

R.P. Referred to the Larger Bench.