2004 Supreme(SC) 659

2004(5) Supreme 37
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
Rajendra Babu, CJI., G.P. Mathur, J.
Transmission Corporation of A.P. -Appellant
versus
Ch. Prabhakar & Ors. -Respondents
Civil Appeal No. 6131 of 2002
Decided on 26-5-2004
Counsel for the Parties :
For the Appellant : Shanti Bhushan and Ashok Grover, Sr. Advocates, Sanjai Pathak and Rakesh K. Sharma, Advocates.
For the Respondents : Mahendra Anand, Sr. Advocate, Ms. K. Sarda Devi (SCLSC), T.V. Ratnam and K. Subba Rao, Advocates.

IMPORTANT POINT
Sub-section (5) of Section 49-C of the Indian Electricity (Andhra Pradesh Amendment) Act, 2000, should be read down whereunder pending cases of the nature before the Metropolitan Court cannot be transferred to the Special Tribunal.

Headnote:Indian Electricity Act, 1910 as Amended by Indian Electricity (Andhra Pradesh Amendment) Act, 2000-Sections 49-C to 49-F-Constitution of India-Articles 20(1), 226-Validity of Amendment Act challenged-Writ petition filed alleging that Amendment Act taking away right of appeal could not have any retrospective effect-A flour mill being run by writ petitioners was inspected by staff of Electricity Department-FIR lodged alleging theft of electricity was being committed-Charge sheet u/s 39 and 44 of the 1910 Act was submitted in 1999-Metropolitan Magistrate took cognizance of the offence and proceeded with the trial of writ petitioners-Amendments of 2000 introduced during the pendency of the case-Case against writ petitioners stood transferred to a Special Tribunal-Writ petitioners claim that trial of writ petitioner should continue before the Court of Metropolitan Magistrate-High Court held that transfer and trial of accused by the Special Tribunal at this stage would offend the guarantee enshrined in Article 20(1) of the Constitution-Sub-section (5) of Section 49-C should be read down whereunder pending cases before the Metropolitan Court cannot be transferred to the Special Tribunal.

       Held : 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 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. (Para 16)

       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 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. (Para 18)

       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. (Para 19)

       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. (Para 19)

       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. (Paras 20 & 21)