TMI Blog1997 (3) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... g offences. It lays down a different procedure for trial, a more stringent provision for grant of bail, and also provides for raising some presumption against the accused, the result whereof is that he is liable to be convicted for a more serious offence. It is thus urged that the trial of the petitioner under the provisions of the Act would violate her fundamental right guaranteed under sub-clause (1) of Article 20 of the Constitution of India. Sri Mahendra Pratap, learned A.G.A, and learned Addl. Advocate General have, on the other hand, submitted that the petitioner cannot complain of violation of her fundamental right under subclause (1) of Article 20 till she was actually convicted and sentenced by the Special Court and such a plea is not open to her at this state as the trial is yet to commence. In order to examine the contentions raised at the bar, it is necessary to consider the real import of the guarantee enshrined in sub-clause (1) of Article 20 of the Constitution. The inclusion of a set of Fundamental Rights in India's Constitution had its genesis in the forces that operated in the national struggle during British rule. With the resort by the British Executive to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted on July 4, 1776 provides that no Bill of attainder or ex-post facto law shall be passed and Section 10 of the same Article lays down that no State shall pass any Bill of attainder or ex-post facto law. The import of this constitutional guarantee was explained two centuries age by U.S Supreme Court in Calder v. Bull, (1780-1800) 1 Law Ed. 648, which has still held the field, in the following words: (1) every law that makes on action done before the passing of the law, and which was innocent when done, criminal and punishes such action (2) every law that aggravates a crime, or makes itgreater that it was when committed (3) every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed (4) every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offence in order to convict the offender. Chief Justice Marchall's definition of an ex post facto law in Fletcher v. Peck, 3 (1809-15) 3 Law Ed. 162 One which renders an act punishable in a manner in which it was not punishable when it was committed - has been followed in many case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e does not deprive the accused of a substantial right or immunity possessed at the time of the Commission of the offence charged. (Hopt v. People of Utah, (1883-84) 110 US 574 : 28 Law Ed. 262; Mallet v. North Carolino, (1900) 181 US 589 : 45 Law Ed. 1015). (7) A change in law that alters a substantial right can be ex post facto even if the statute takes a see mingly procedural form (Winston v. State, 118 ALR 719; Miller v. Florida, (1987) 482 US 423 : 96 Law Ed. 2d. 351. (8) Statute denying bail on appeal from conviction is ex post facto (Greene v. State, 238 So. 2s. 296 as quoted in 1979 Cumulative Annual Pocket Part of 16-A Corpus Juris Secundum Page 14). 5. The above quoted view of the legal position has also been stated in 16-A Corpus Juris Secundum Paras 435, 440, 445 and in 16 American Jurisprudence 2d. paras 402, 404, 407. In United Kindom the Parliament being the Supreme, the Courts interpret the penal laws in a manner that they do not have ex post facto operation of the principle that Parliament would not pass retrospective criminal legislation. In Waddington v. Mian, (1974) 2 All ER 377, while examining the provisions of Section 34(1)(a) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied thereafter the all or some part of those subject to its power . These passages must be understood as elucidating certain normal and typical aspects of legislation rather than stating a conditio sine qua non, as essential condition, of all legislative activity. The large majority of enactments passed by legislatures take effect ex nunc, that is, they are applied to situations and controversies that arise subsequent to the promulgation of the enactment. It is a fundamental requirement of fairness and justice that the relevant facts underlying a legal dispute should be judged by the law which was in existence when these facts arose and not by a law which was made post factum (after the fact) and was therefore necessarily unknown to the parties when the transactions or events giving rise to the dispute occurred. The Greeks frowned upon ex post facto laws, which are applied retrospectively to past-fact situations4. The Corpus Civilis of Justinian proclaimed a strong presumption against the retrospective application of laws5. Braction introduced the principle into English laws6 and Blackstone gave currency to it7 and the principle is recognized in England as a basic rule of statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 intrepreted inconformity with the International Law. On the same analogy Art. 20 should also be interpreted in conformity with United National Charter and conventions. 9. A literal interpretation of sub-clause (1) of Art. 20 would mean that the protection available is only against conviction for an act or 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. However, in my opinion, it will not be fair or proper to con fine the constitutional guarantee in such a restricted manner. Constitution is a living organic thing and it must not be construed in a narrow or pedantic manner. A construction most beneficial to the widest possible amplitude of its powers must be adopted. Of all the instrument, the constitution has the greatest claim to be construed broadly and liberally [See Good Year India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Transport v. State of Rajasthan, AIR 1962 SC 1406, State Of West Bengalplaintiff; v. Union Of Indiadefendant, AIR 1963 SC 1241, Special Reference No. 1 of 1964 AIR 1965 SC 745, R. Rajapogal v. State of Tamil Nadu, (1994) 6 SCC 632 : (1994 AIR SCW 4420) and in host of othercases. There can be little doubt that while drafting Article 20, the framers of the Consttution had Section 9 of Article 1 of the U.S Constitution, as interpreted by the Courts there, in their mind and therefore a similar interpretation will be more in tune with the spirit with it was included in Part III of the Constitution relating to fundamental rights. 11. It may be pointed out that the earlier interpretation based upon reasonable classification given to Article 14 was given a new dimension in Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 : AIR 1974 SC 555, Menaka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597, Ajai Hasia v. Khalid Suhrawardy, (1981) 1 SCC 722 : AIR 1981 SC 487, and Ramanna v. Airport Authority, (1979) 3 SCC 489 : AIR 1979 SC 1628. The current view is that Article 14 Strikes at arbitrariness of State action in any form and has thus widened the concept of equality. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the crime which operates to the detriment of the accused and deprives him of some substantial right even with regard to matter relating to grant of bail would violate sub-clause (1) of Art. 20 as such a legislation may result in a long period of incarceration prior to final decision of the case. 13. In my opinion the constitutional guarantee enshrined in sub-clause (1) of Art. 20 not only prohibits 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 commission of offence. It also prohibits legislation which aggravates the degree of crime or makes it possible for the accused to receive greater punishment even through 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 at the time of the commission of the offence charged or acts to his detriment in the matters concerning pre conviction incarceration. 14. The provision of the Act may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sentence of death is not awarded, the judgment shall state the special reasons for not awarding the death sentence. A special definition of public servant has been given in S. 4 of the Act and a certificate by the Superintendent of Police has been made conclusive. Explanation to S. 12 shows that the expression member of a family of a public servant has been given a very wide meaning and it includes even a dependent or a person residing with such public servant. It may be recalled that under sub-sec. (5) of S. 367 of the Code of Criminal Procedure, 1898 if a person was convicted of an offence punishable with death and the sentence of death was not awarded the court was required to state the reason why the sentence of death was not passed. This was interpreted by judicial authorities to mean that death sentence was the rule and imprisonment for life was exception. The legislature in its wisdom deleted sub-sec. (5) of S. 367 by Code of Criminal Procedure (Amendment) Act, 1955 (Act No. 26 of 1955) which came into force on January 1, 1956. Sub-section (3) of S. 354 of the Code of Criminal Procedure, 1973 contains a converse provision namely the court has to record special reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfied the first proviso will not apply. There is ??? difference between S. 10 of the Act ???. 437 and 439 of the Code of Criminal ??? as here there is no requirement that the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence while granting bail. The benefit of the first proviso to sub-sec. (1) of S. 437 which empowers the court to grant bail if the accused is under the age of 16 years or is a woman or is sick or infirm will not be available to a person who is either accused or is convicted of a scheduled offence. Thus there can be no doubt that the provisions to S. 10(b) of the Act cause serious prejudice of an accused who is being tried under the Act. 16. As mentioned earlier in the two Sessions-Trialin which the petitioner is being prosecuted the offences were committed prior to the enforcement of the Act and therefore the application of sub-sec. (b) of S. 10, and S. 12(b), 13, 14, 15, 16 and item No. (ii) to (viii) of the Schedule to the Act will violate her fundamental right under sub-clause (1) of Art. 20 of the Constitution. 17. Sri R. Asthana, learned counsel for the petitioner has submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act will be tried under the provisions of the present Act it is well settled that statutes dealing with merely matters of procedure are presumed to be retrospective unless such a construction is textually inadmissible (see Delhi Cloth and General Mills v. C.I.T Delhi, AIR 1927 PC 242, Jose De Costa v. Bascora, (1976) 2 SCC 917 : AIR 1975 SC 1843 and Gurbachan Singh v. Satpal Singh, (1990) 1 SCC 445 : AIR 1990 SC 209). The statement in Maxwell on the Interpretation of Statutes - no person has a vested right in any course of procedure. He has only the right of prosecution and defence in the manner prescribed for the time being by, or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode - has been quoted with approval in several decisions of the Apex Court (see Anant Gopal Sheorey v. State Of Bombay, AIR 1958 SC 915 and Union Of India v. Sukumar Pyne., AIR 1966 SC 1206). It has been held in Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1953 SC 394 that a trial under a procedure different from what obtained at the time of the commission of the offence or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therefore, on facts there is no violation of sub-clause (1) of Art. 20 of the Constitution can also not be accepted for the reason that the charges have not yet been framed and after recording of evidence they can be amended at any time before judgment is pronounced in view of S. 216, Cr. P.C That apart, as shown earlier, there are several such provisions in that Act whose application or enforcement would violate the constitutional guarantee. 20. Learned Addl. Advocate General has also urged that the petitionerhas moved an application before Supreme Court in Criminal Appeal No. 16 of 1997 for addition of some grounds which are similar to the grounds taken in the present writ petition and therefore, this court should not hear the petition. The State of U.P had moved an application under S. 321, Cr. P.C before the Special Judge for withdrawal of petitioner's prosecution but the same was rejected on March 15, 1994 and the order was affirmed by this court in Criminal Revision No. 561 of 1994 which was decided on December 18, 1996 (reported in 1997 All LJ 1191). The State of U.P and the petitioner have both preferred appeals before the Supreme Court which has been regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of an Act stands on an entirely different footing and therefore, even if the application for urging additional grounds is not allowed and is rejected by the Supreme Court the plea of constructive res judicata will not come into play. 22. The writ petition is, consequently, partly allowed. A writ of mandamus is issued to the Special Judge, Kanpur Dehat, not to apply or enforce sub-clause (b) of S. 18, sub-clause (b) of S. 12, Ss. 13, 14, 15 and 16 of U.P Dacoity Affected Areas Act to the petitioner and not to charge or convict her for the offence described in items (ii) to (viii) of the Schedule to the aforesaid Act while trying Sessions Trial No. 321 of 1981 and Sessions Trial No. 97 of 1 ??? 4 in which crimes in question were committed prior to the enforcement of the Act. Stay order is vacated. 23. I.M Quddusi, J.:- I have got the privilege of going through the judgment prepared by my revered brother Mr. Justice G.P Mathur, with whom I had long discussions. I am in complete agreement with him. However, I would like to add few words. 24. The learned Additional Advocate General has raised a contention that the petitioner had opportunity to move applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned whether as principal orabettor in the commission thereof and any pardon so tendered shall for the purposes of S. 308 of the said Code, be deemed to have been tendered under S. 307 thereof. (5) A Special Court may pass upon any accused person convicted by it any sentence authorised by law for the punishment of offence of which such person is convicted. Proviso to S. 7(1) of the Act provides that all cases ??? by a. Special Court under the said Act pending before any court immediately before the date of the commencement of that Act in a dacoity affected area shall stand transferred to the Special Court having jurisdiction over such cases and shall be dealt with and disposed of in accordance with the provisions of the Code. In this provision the Special Court has not been given a discretion to consider as to which provision of the Act would apply to an accused who has allegedly committed offences prior to the date of enforcement of the Act. On the basis of the cases instituted upon receiving a complaint of facts, which constitute an offence or u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 276-77 of AIR):- In the present case even if it be assumed that S. 10 of the Ordinance was an ex-post facto law. In that in the matter of penalty a minimum sentence of fine was directed to be imposed by a court whereas at the time that the appellant committed the offence, S. 420 contained no such provision. What is prohibited under Art. 20 of the Constitution is imposition of a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The total sentence of fine - ordinary and compulsory - in the present case cannot be said to be greater than that which might have been imposed upon the appellant underthelaw in force at the time of the commission of the offence because the fine which could have been imposed upon him under S. 420, I.P.C was unlimited. A law which provides for a minimum sentence of fine on conviction cannot be read as one which imposes a greater penalty than that which might have been inflicted under the law at the time of the commission of the offence where for such an offence there was no limit as to the extent of fine which might be imposed. Whether a fine was excessive or not would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of the commission oftheoffence is not unconstitutional. However, under the English history of jurisprudence ex post facto laws are treated as a ground compelling beneficent construction thereof where the language of the statute does not permit it. 29. In the matter of Rattan Lal Alias Ram Rattan v. State Of Punjab, AIR 1965 SC 444, Hon'ble K. Subba Rao, J. for himself and on behalf of K.C Das Gupta, observed as under (at p. 446 of AIR): Every law that takes away or impairs a vested right is retrospective. Every ex post facto law is necessarily retrospective. Under Art. 20 of the Constitution, no person shall be convicted of any offence except for violation of a law in force at the time of the commission of that act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. But an ex post facto law which only modifies the rigours of a criminal law docs not fall within the said prohibition. If a particular law makes provision to that effect, though retrospective in operation, it will be valid. The question whether su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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