- (1.) 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 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 was lodged and after investigation charge-sheet under Sections 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 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 of India and thereafter it was published in the Andhra Pradesh Gazette on 2-1-2000 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 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 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 : "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 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 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 for a period of two years." 49-C (1) 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 District or Districts, a Court of District and Sessions Judge to be a Special Tribunal to try the offences under this Act and determine the compensation to 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 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. 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) (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. (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 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: 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. (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 such commencement. (6) ................................ (7) Notwithstanding anything contained in Section 260 or 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. 49-D.(1) 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 the theft of energy and trial of cases and for awarding compensation to the Electricity Utility. (2) A special Court 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 persons who are or have been District Judges (hereinafter referred to as Judicial Members) and the other two members, shall be persons with a Degree in Electrical Engineering and who hold or have held a post not below the rank of a Chief Engineer in a State Electricity Board or its successor entities or a post not below the rank of a Chief Electrical Inspector in the State Government (hereinafter referred to as Technical Members). Provided.......................... (Omitted as not relevant) (4) ................................ (5) (a) Subject to the other provisions of this Act, the 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 Presiding Officer of such a bench and where the bench consists of two members, the Judicial Members shall be the Presiding Officer. (c) It shall be competent for the Chairman, either suo motu or 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) 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 opinion, and the decision or order shall follow that opinion. (6) to (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 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 punishable under this Act shall be tried in a summary way by the Special Court and the provisions of the Sections 263 to 265 of the said Code shall, as far as may be apply to such trial. (10) ............................ 49-E (1) The Special Court may either suo motu 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 five lakhs and pass such orders (including orders by way of interim directions) as it deems fit. Provided...................... (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 (1) shall be triable only in the special Court and the decision of the Special Court shall 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 offences punishable under this Act. (5) and (6) ........................... (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. (8) ............................ (9) Any case, pending before any court or other authority 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. 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, 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 Public Prosecutor.;