Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 1 iberal 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 of Haryana, 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.
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 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 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 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.
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.