Bail Slip:-The Appellants/ Accused No.1 & 2 namely i.Sellanuthu S/o. Palaniappa gounder and ii. Senthilkumr S./o. Sellamuthu were directed to be released on bail as per orders of this court dated 12.10.2006 made in C.M.P.No.1 of 2006 in Crl.A.No.873 of 2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 21..07..2011 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Criminal Appeal No.873 of 2006 1.Sellamuthu 2.Senthilkumar ... Appellants -Versus- State by the Inspector of Police, Kumarapalayam Police Station, Namakkal District. [Crime No.467 of 2004] ... Respondent Memorandum of Grounds of Criminal Appeal under Section 374 (2) of the Criminal Procedure Code against the judgement dated 29.09.2006 made in S.C.No.122 of 2005 on the file of the learned Principal Sessions Judge, Namakkal Division. For Appellant : Mr.N.Manokaran For Respondent : Mr.I.Subramaniam Public Prosecutor Assisted by Mr.A.N.Thambidurai, Addl. Public Prosecutor JUDGEMENT 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 A1 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 judgement dated 29.09.2006 for offence under Section 135(1) (b) of The Electricity Act, 2003 r/w 34 of IPC and sentenced to undergo simple imprisonment https://hcservices.ecourts.gov.in/hcservices/ 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 22.06.2004, P.W.2, the then Assistant Executive Engineer, TNEB, Kumarapalayam along with P.W.1, the then Assistant Executive Engineer [O & M] and P.W.3, another Engineer of TNEB made a surprise inspection at the above premises. At that time, A1 was not present. However, A2 was present. P.W.2 gave a notice of inspection to A2. In the presence of A2, P.Ws.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, P.W.2 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. M.O.2 is the said belt piece. M.O.1 is the entire meter with board [series]. Thereafter, P.W.1 prepared an observation mahazar. A2 declined to sign the same. P.W.1 signed the observation mahazar as a witness. P.W.4, the Village Administrative Officer, who was present at the time of inspection also signed the observation mahazar as a witness. Ex.P.2 is the said observation mahazar. As per the relevant rules, P.W.2 calculated the electricity so stealthily consumed by the accused at 14021 units and estimated the loss at Rs.54,331/-. P.W.2 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, P.W.1 preferred a complaint at Kumarapalayam Police Station under Ex.P.1. Based on the above said complaint, P.W.10, 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.P.12. He examined the prosecution witnesses P.Ws.1 to 4 and recorded their statements. He recovered the electricity meter along with the meter board [M.O.1 series] as well as the piece of belt [M.O.2] from the place of occurrence. He requested P.W.5 to take photographs of the meter board and belt etc. Then, he examined the other prosecution witnesses including P.W.4, the Village Administrative Officer. He arrested A1 at 7.30 p.m. on 22.06.2004 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 https://hcservices.ecourts.gov.in/hcservices/ investigation to P.W.11. P.W.11, 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 under Section 135(1)(b) of the Electricity Act r/w 34 of IPC. The accused denied the charge and, therefore, the trial court went ahead with the trial. In order to establish the case of the prosecution, as many as 11 witnesses were examined by the prosecution as P.Ws.1 to 11 besides 17 documents were exhibited. The meter along with the meter board and the piece of belt were marked as M.O.1 [series] and M.O.2 respectively. P.Ws.1 to 3 have spoken to about the inspection made and the preparation of observation mahazar, etc. P.W.4 , the Village Administrative Officer has spoken to about the preparation of observation mahazar by the Sub Inspector of Police. P.W.5 is the photographer who took photographs at the request of the police. P.W.6 to 9 have turned hostile and they have not supported the case of the prosecution at all in any manner. P.W.10 and P.W.11 are the police officers who have spoken to about the registration of the case and investigation. 6. When the incriminating materials were put to the Accused by the trial court under Section 313 of the Code of Criminal Procedure, they denied the same. However, they did not examine any witness on their side, nor did they mark any document. Having considered the available materials, the trial court convicted the accused as stated in the second paragraph of this judgement. That is how, the accused are now before this court with this appeal. 7. I have heard Mr.N.Manokaran, learned counsel appearing for the appellants/A1 & A2 and Mr.I.Subramaniam, learned Public Prosecutor for the respondent. I have also perused the records meticulously. 8. At the outset, the learned counsel for the appellants would submit that as per Section 151 of the Electricity Act, 2003, as it stood prior to the amendment, the competent court can take cognizance of an offence punishable under the Act only upon a complaint in writing made by the appropriate Government or appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for https://hcservices.ecourts.gov.in/hcservices/ this purpose. Subsequently, Section 151 of the Act was amended by which two provisos were added to the same by The Electricity [Amendment] Act, 2007 [Central Act 26 of 2007] which came into effect from 15.06.2007. Section 151 as amended reads as follows:- "151. Cognizance of offences.- No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose: Provided that the court may also take cognizance of an offence punishable under this Act upon a report of a police officer filed under Section 173 of the Code of Criminal Procedure, 1973 [2 of 1974] Provided further that a Special Court constituted under Section 153 shall be competent to take cognizance of an offence without the accused being committed to it for trial." 9. In the instant case, the final report was submitted by P.W.11 on 13.09.2004. Soon thereafter, cognizance was taken. The charge was framed on 28.08.2006 by the trial court. Thus, as on the date when cognizance was taken, the Electricity [Amendment] Act, 2007 had not come into force. Therefore, according to the learned counsel for the appellants, as per the unamended provision in Section 151 of the Electricity Act, 2003, the cognizance taken in this case on the police report is illegal which vitiates the entire proceedings including the conviction and sentence. 10. Per contra, the learned Public Prosecutor would contend that of course it is true that as on the date when cognizance of the offence was taken by the trial court, the amended Act had not come into force. He would further submit that such cognizance taken by the trial court on the police report is only irregular and not illegal. He would also submit that the amendment which came into force on 15.06.2007, being purely procedural, is retrospective in operation and, therefore, the above irregularity in the matter of taking cognizance stands cured. 11. In order to substantiate the his contentions, the learned counsel for the appellants would rely on a judgement of the Hon'ble Supreme Court in Kartar Sing v. State of Punjab, 1994 (3) SCC 569 wherein the Hon'ble Supreme Court had an https://hcservices.ecourts.gov.in/hcservices/ occasion to deal with the scope of Article 21 and the phrase "except according to the procedure established by law" and it has held in paragraph 448 as follows:- "448. ....... Article 21 is a constitutional command to State to preserve the basic human rights of every person. Existence of right and its preservation has, thus, to be construed liberally and expansively. As a corollary to it the exercise of power by the State has to be construed narrowly and restrictively. It should be so understood and interpreted as not to nullify the basic purpose of the guarantee. No legislative or executive action can be permitted to get through unless it passes through the judicial scanning of it being not violative of the cherished right preserved constitutionally. If the article is construed as empowering the State to make a law and deprive a person as the Constitution permits it then the entire concept of personal liberty shall stand frustrated. A political party voted to power may adopt repressive measures against its political foes by enacting a law and it may well be said that deprivation being in accordance with procedure established by law it is within the constitutional frame. The procedure adopted by State either legislatively or executively must therefore satisfy the basic and fundamental requirement of being fair and just. The word ‘except’ restricts the right of the State by directing it not to fiddle with this guarantee, unless it enacts a law which must withstand the test of Article 13. Today it appears wellnigh settled that procedure established by law, extends both to the substantive and procedural law. Further mere law is not sufficient. It must be fair and just law. ......... " [Emphasis supplied] 12. Relying on the above judgement, the learned counsel for the appellant would submit that the term "procedure established by law" as enumerated in Article 21 of the Constitution of India, does not mean a law which is substantive alone but includes procedural law as well. In the case on hand, indisputably, Section 151 of the Electricity Act, both before and after the amendment is pure and simple a procedural law and the same is not a substantive law. In such view of the matter, the learned counsel for the appellant would contend that though it is a procedural law, if the same violates in any manner Article 21 of https://hcservices.ecourts.gov.in/hcservices/ the Constitution, the conviction which is a result of such violation is vitiated. 13. But, the learned Public Prosecutor would submit that it is only in a case where the law which is alleged to have been violated is a substantive law, then for such violation the entire conviction based on the same will stand vitiated. But, at the same time, in respect of violation of a law which is pure and simple a procedural law, it shall not result in vitiation of the conviction unless it is established by the accused that such violation has caused prejudice to him resulting in failure of justice. For this purpose, the learned Public Prosecutor has relied on a judgement of the Hon'ble Supreme Court in Purshottam Jethanand v. The State of Kutch, AIR 1954 SC 700 wherein the Hon'ble Supreme Court has held as follows:- "We think it clear that without a fresh order under Section 190(2) Cr.P.C. Shri Kansara had no power to take cognizance subsequent to the 19th August, 1950. Notwithstanding this conclusion, we are of the opinion that the defect is cured by Section 529 Cr.P.C. It is admitted that Shri Kansara had no knowledge at all of the notification dated 19th August , 1950 by the date he took cognizance of the case on the filing of the complaint on the 26th August, 1950. His taking cognizance of this case was therefore 'bona fide' and no prejudice has been shown." 14. The learned Public Prosecutor would nextly rely on a Constitution Bench judgement of the Hon'ble Supreme Court in Willie [William] Slaney v. State of Madhya Pradesh, AIR 1956 SC 116. That was a case where a question arose as to whether the conviction of the accused shall stand vitiated for want of a proper charge. The Hon'ble Supreme Court while holding that the conviction does not stand vitiated proceeded on the footing that only in a case where there is a failure of justice occasioned on account of the irregularity, then only the benefit of the same will enure in favour of the accused or else conviction shall not stand vitiated. In the words of the Hon'ble Supreme Court "In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, be is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a https://hcservices.ecourts.gov.in/hcservices/ reasonable and substantial likelihood of it, is not disclosed the conviction must stand." 15. There can be no doubt that the most cherished fundamental right in the constitution is the right to life guaranteed under Article 21 of the Constitution of India. As it is enshrined in the said provision, the right to life can be deprived of only by following a procedure established by law. Here, the learned counsel for the appellants would point out that the term 'procedure established by law' as found in Article 21 of the Constitution will include both the substantive law as well as the procedural law. As has been held by the Hon'ble Supreme Court in Katar Singh's case cited supra, there can be no doubt on the said legal position. But, at the same time, as held by the Hon'ble Supreme Court in the other judgements cited supra, if the law is, pure and simple, one dealing with procedure regulating the trial of the case, unless it is shown to the court that by the violation of the said procedure, prejudice has been caused or prejudice is imminent, it cannot be held automatically that there is a violation of Article 21 of the Constitution so as to hold that the conviction is vitiated. If the law is, pure and simple, a procedural law regulating the conduct of investigation or trial, in addition to establishing the violation of the said procedural law, it is incumbent upon the accused to show prejudice which has resulted in failure of justice. To put it otherwise, on the ground of 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. 16. Section 529 of the Code of Criminal Procedure, 1898 is exactly reproduced in the Code of Criminal Procedure, 1973 in Section 460. Section 460 of the Code of Criminal Procedure, 1973 contemplates the irregularities which do not vitiate the proceeding. Sub-section (e) of Section 460 of the Code states that if any Magistrate, not empowered by law to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of section 190 Cr.P.C., takes cognizance of any offence, then the said irregularity will not vitiate the proceedings. In the case on hand, as per the unamended Act, the learned Magistrate was not empowered to take cognizance on a police report in respect of an offence punishable under Section 135 of the Electricity Act. Instead, under Section 151 of the Act, the Court can take cognizance only on a complaint filed by any of of the authorities enumerated thereunder. Therefore, taking cognizance on the police report is a violation of section 151 of the Act as it stood unamended and it is surely an irregularity. But, in view of Section 460 of the Code, the said irregularity will not vitiate the entire proceedings. That is what has been succinctly held by the Hon'ble Supreme Court in Purshottam Jethanand v. The State of Kutch, AIR 1954 SC 700. Therefore, I https://hcservices.ecourts.gov.in/hcservices/ have no hesitation to hold that in this case, though as on the date when cognizance was taken on the police report, the Magistrate was not empowered to take cognizance on such police report, such irregularity shall not vitiate the entire proceedings. 17. The learned public prosecutor would nextly contend that the said irregularity stand cured by amendment to Section 151 of the Electricity Act brought in by the Electricity [Amendment] Act, 2007 [26 of 2007] which came into force on 15.06.2007. According to him, since Section 151 is pure and simple a procedure for taking cognizance, the Electricity [Amendment] Act, 2007 [26 of 2007] will have retrospective operation and the irregularity pointed out by the learned counsel for the appellant in the matter of taking cognizance thus stands cured. For this proposition, the learned public prosecutor relies on a judgement of the Calcutta High Court in Ajoy Kumar Ghosh v. The State of West Bengal and antoher, 2008 Cri.L.J. 276 wherein the retrospective applicability of Section 151 of the Electricity Act, 2007 came up for consideration. After making a thorough survey of various judgements of the Hon'ble Supreme Court, the Calcutta High Court has held that the said procedural law is retrospective in operation. As a matter of fact, the Calcutta High Court has followed the judgement in Union of India v. Sukumar Pyne , AIR 1966 SC 1206 wherein the Hon'ble Supreme Court has held as follows:- "9. ..... In our opinion, there is force in the contention of the learned Solicitor- General. As observed by this Court in 1953 SCR 118: AIR 1953 SC 394, a person accused of commission of an offence has no vested right to be tried by a particular court or a particular procedure except in so far as there is any Constitutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognized that "no person has a vested right in any course of procedure" (vide Maxwell 11th Edition, p. 216), and we see no reason why this ordinary rule should not prevail in the present case. There is no principle underlying Art. 20 of the Constitution which makes a right to any course of procedure a vested right. Mr. Chatterjee complains that there is no indication in the Amending Act that the new procedure would be retrospective and he further says that this affects his right of appeal under the Criminal Procedure Code. But if this is a matter of Procedure, then it is not necessary that there should be a special provision to indicate that the new procedural https://hcservices.ecourts.gov.in/hcservices/ law is retrospective. No right of appeal under the Criminal Procedure Code is affected because no proceedings had been started under the Criminal Procedure Code." [Emphasis supplied] 18. Again the Calcutta High Court has referred to the judgement of the Hon'ble Supreme Court in Anant Gopal Sheorey v. The State of Bombay, AIR 1958 SC 915 wherein the Hon'ble Supreme Court has held as follows:- "The question that arises for decision is whether to a pending prosecution the provisions of the amended Code have become applicable. There is no controversy on the general principles applicable to the case. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by any Act of Parliament the mode of procedure is altered he has no other right than to procedure according to the altered mode. [See Maxwell on Interpretation of Statutes on P.225] : [Colonial Sugar Refining Co. Ltd. v. Irving, 1905 AC 369]. In other words, a change in the law of procedure operate retrospectively and unlike the law relating to the vested right is not only prospective." [Emphasis supplied] 19. Lastly, the Calcutta High Court had an occasion to refer to yet another judgement of the Hon'ble Supreme Court in K.S.Paripoornan v. State of Kerala, AIR 1995 SC 1012 wherein the Hon'ble Supreme Court has held as follows:- "A statute dealing with substantive rights differs from a statute which relates to procedure or evidence or is declaratory in nature inasmuch as while a statute dealing with substantive right is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect, a statute concerned mainly with matters of procedure or evidence or which is declaratory in nature has to be constructed as retrospective unless there is a clear indication that such was not the intention of the legislature. [Emphasis supplied] https://hcservices.ecourts.gov.in/hcservices/ 20. After having a thorough analysis of the above judgements, the Calcutta High Court has come to the conclusion in paragraph 19 which reads as follows:- "19. Since the amendment of Section 151 of the Electricity Act, 2003, i.e. the Principal Act by the Electricity (Amendment) Act, 2007 is purely procedural in nature which has merely altered the form of procedure, in absence of anything to the contrary would apply retrospectively to all pending cases,in the sense that such amended provisions shall apply to all actions, even though such action may have began earlier and then not reached to its logical conclusion. As held by the Apex Court in the case of Union of India v. Sukumar Pyne (1966 Cri.L.J. 946) (supra) since the amendment in question is merely a matter of procedure such amendment should operate retrospectively without even any indication the same would operate retrospectively. Thus, the amended provision would be applicable to all pending cases where charge-sheet has been submitted by the police in respect of an offence punishable under the Electricity Act even before such amendment came into force." 21. Similar view has been taken by the Jharkhand High Court in Ashish Kumar Jain v. State of Jharkhand and another, 2009 (84) AIC 893 (JHAR. H.C.)] wherein in paragraph 15 the Jharkhand High Court has held as follows:- "15. In view of my aforesaid finding that the amendment in section 151 of the Electricity Act will operate with retrospective effect and governs all pending cases, the institution of present FIR by the police is consonance to the law, as such, there is no illegality in it." The Jharkhand High Court had the benefit of referring to the judgement of the Hon'ble Supreme Court in State of Madras v. Latif Hamid and company, (1971) 3 SCC 560 wherein the Hon'ble Supreme Court has held that "it is well settled that new procedure prescribed by law governs all pending cases." 22. But, the learned counsel for the