IMPORTANT POINTS
(1) Mere violation of a procedure, in the absence of any prejudice to the accused, resulting in failure of justice, the conviction shall not stand vitiated.
(2) A law which prescribes only a procedure is retrospective in operation and as such Section 151 of Electricity Act, 2003 (as amended by Amendment Act, 2007) is retrospective in operation.

JUDGMENT

S. Nagamuthu, J.—An important question, “whether Section 15 of the Electricity (Amendment) Act, 2007 (26 of 2007) has got retrospective operation?” has come up for consideration in this case.

2. The appellants are AI and A2 in S.C. No.122 of 2005 on the file of the learned Principal Sessions Judge, Namakkal Division. They have been convicted by judgment dated 29.9.2006 for offence under Section 135(1) (b) of The Electricity Act, 2003 r/w 34 of IPC and sentenced to undergo simple imprisonment for one year. Challenging the aforesaid conviction and sentence, they are now before this Court with this criminal appeal.

3. The facts of the prosecution case in brief would be as follows:

The appellants are father and son respectively. The 1st appellant A1 is the consumer of electricity under Electricity Service Connection No.642 installed at D.No.3/29, Teachers Colony, Edhirmedu, Kumarapalayam to run the power-looms. On 22.6.2004, PW2, the then Assistant Executive Engineer, TNEB, Kumarapalayam along with PW1, the then Assistant Executive Engineer [O & M] and PW3, another Engineer of TNEB made a surprise inspection at the above premises. At that time, A1 was not present. However, A2 was present. PW2 gave a notice of inspection to A2. In the presence of A2, PWs 1 to 3 conducted inspection, during which, they noticed the power-looms running. But, they also noticed that the electricity meter was not running and recording the electricity consumption. They developed suspicion. When, PW2 further probed, he found a small piece of belt inserted in between the meter and the meter board. When the belt was removed, the meter started running. Thus, it came to light that the belt had been inserted in order to prevent the meter running and recording the electricity consumption. MO2 is the said belt piece. MO1 is the entire meter with board (series).Thereafter, PW1 prepared an observation mahazar. A2 declined to sign the same. PW1 signed the observation mahazar as a witness. PW4, the Village Administrative Officer, who was present at the time of inspection also signed the observation mahazar as a witness. Ex. P2 is the said observation mahazar. As per the relevant rules, PW2 calculated the electricity so stealthily consumed by the accused at 14021 units and estimated the loss at Rs.54,331. PW2 gave an offer to A2 to pay a sum of Rs. 1,40,000 as compounding fees so as to avoid complaint to the police. A2 expressed his inability to pay the same. Therefore, PW1 preferred a complaint at Kumarapalayam Police Station under Ex. Pl. Based on the above said complaint, PW10, the then Sub-Inspector of Police, registered a case in Crime No.467 of 2004 for offence under Section 135(1)(b) of The Electricity Act, 2003. He proceeded to the place of occurrence at 3.30 p.m. and prepared an observation mahazar under Ex. P12. He examined the prosecution witnesses P Ws l to 4 and recorded their statements. He recovered the electricity meter along with the meter board (MO l series) as well as the piece of belt (MO2) from the place of occurrence. He requested PW5 to take photographs of the meter board and belt etc. Then, he examined the other prosecution witnesses including PW4, the Village Administrative Officer. He arrested Al at 7.30 p.m. on 22.6.2004 at Kumarapalayam bus stand and forwarded him for judicial remand. Then, he forwarded the material objects to the Court. He examined the photographer and collected the photographs with negatives. Then, he handed over the investigation to PW11. PW11, the then Inspector of Police took up further investigation and on completing the investigation, he laid the final report under Section 135(1)(b) of the Electricity Act, 2003 r/w 34 of IPC against both the accused.

4. The learned Magistrate took cognizance on the said police report and after complying with the requirements of Section 207 Cr.P.C. committed the case to the Court of Sessions for trial.

5. Based on the above materials, the trial court framed a lone charge und