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2009 DIGILAW 753 (CAL)

Ganesh Ghosh v. STATE OF WEST BENGAL

2009-09-17

P.S.Datta

body2009
JUDGMENT: Partha Sakha Datta 1. CRR No. 3886 of 2006, CRR No. 618 of 2007 and CRR No. 2356 of 2007 are being disposed of by this common order as the only question involved in these three applications is whether the first proviso to section 151 to the Electricity Act, 2003 which has been introduced by the Electricity (Amendment) Act, 2007 that came into force on 15th June, 2007 by a Gazette Notification of the Government of India is prospective or retrospective. 2. SECTION 151 of the Act with amendment 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 officers 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." The further amended provisions of section 151A and section 151B read as follows:- SECTION 151A :- "For the purpose of investigation of an offence punishable under this Act the police officer shall have all the powers as provided in Chapter XII of the Code of Criminal Procedure, 1973." SECTION 151B:- "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 an offence punishable under sections 135 to 140 or section 150 shall be cognizable and non-bailable." Against the petitioner in CRR No. 3886 of 2006, one Biswanath Bauri,Station Manager of Patrasayer Group Electric Supply, West Bengal State Electricity Board in the district of Bankura lodged an FIR on 14th August, 2005 alleging commission of theft and dishonest abstraction of electrical energy which is an offence punishable under section 135(l)(b)(c) of the Electricity Act, 2003. The police upon completion of investigation submitted charge-sheet against the petitioners under the aforesaid section of the said Act on 30th June, 2006 and the learned Judge, Special Court under the Electricity Act, 2003 by order dated 1st August, 2006 took cognizance of offence. 3. The police upon completion of investigation submitted charge-sheet against the petitioners under the aforesaid section of the said Act on 30th June, 2006 and the learned Judge, Special Court under the Electricity Act, 2003 by order dated 1st August, 2006 took cognizance of offence. 3. AGAINST the petitioner in CRR No. 618 of 2007 FIR was registered by the police on 4th January, 2005 and charge-sheet was submitted on 1st March, 2005 under section 135(l)(b) of the Electricity Act, 2003 and under section 379 of the IPC. The addition of section 379 IPC is of no consequence and ignorable because section 135 of the Act 2003 covers the totality of facts alleged therein. 4. IN CRR No. 2356 of 2007, an FIR was registered on 30th May, 2007 under section 135(l)(a)(c) of the said Act, 2003. This is also a case of alleged dishonest abstraction of electrical energy. So far as this case is concerned, it is not in the record whether charge-sheet has been submitted or not. When the offence was allegedly committed in either of the cases the original and un-amended section 151 of the Act which I have reproduced above was in force. As noted, the Court can take cognizance of offence only upon a complaint in writing made by the authority or person as stated in the said section but here in the instant case even after the enactment of the Electricity Act, 2003 that came into effect from 2nd June, 2003 the FIR was lodged by the officer of the Electricity Board with the police which submitted charge-sheet. The amended section 151 was not mere when the FIR was lodged and or when charge-sheet was submitted. Therefore, it has been the contention of the petitioners herein that the petitioners cannot be prosecuted under section 135(l)(b)(c) of the Electricity Act, 2003 on the basis of the charge-sheet submitted by the police following the registration of the FIR against them as original un-amended section 151 clearly provided that no Court shall take cognizance of offence except on a complaint made in writing by the officer or authority as categorized therein. Therefore, the question is whether the first proviso to section 151 of the Act can be said to be prospective or retrospective. 5. MR. Achintya Kr. Therefore, the question is whether the first proviso to section 151 of the Act can be said to be prospective or retrospective. 5. MR. Achintya Kr. Banerjee, learned Advocate appearing for the petitioners in CRR No. 3886 of 2006 submitted that when by a Gazette Notification dated 12th June, 2007 it has been expressed that in exercise of the powers conferred by sub-section (2) of section 1 of the Electricity (Amendment) Act, 2007 (Act 26 of 2007) the Central Government fixed 15th June, 2007 as the date on which the provisions of the said Act shall come into force it clearly indicates in unmistakable terms that the amended provision of section 151 is but prospective and not retrospective. This point has been thrashed in great details by MR. Banerejee with the submission that there is no room for any authority to come to a conclusion that the date of commencement of the said amended provisions would be retrospective. For, interpretation of statute postulates that an Act cannot be said to commence or to be in force unless it is brought into operation by the legislative enactment or by exercise of authority by a delegate empowered to bring in into operation. Retrospectivity shall not be attached to an Act unless the legislation makes it so by express words or by necessary implication ; when the legislature in no uncertain terms has disclosed its intention of giving effect to the amended Act of 2007 only with effect from 15th June, 2007 there can be no manner of doubt as to the prospectivity of the amended provision. Reference in this connection has been made to the case of Darshan Singh vs Ram Pal Singh, reported in 1992 Supp.(l) SCC 191. It is argued that on the date of registration of the case there was total ouster of jurisdiction and authority on the part of the police; submission of chargesheet is not legally entertainable and on the basis of the said charge sheet there cannot be any prosecution against the petitioners. It is submitted that where statute very clearly provides that the amended provision can be operative from 15th June, 2007 it cannot be said that by necessary implication it would be retrospective. It is submitted that where statute very clearly provides that the amended provision can be operative from 15th June, 2007 it cannot be said that by necessary implication it would be retrospective. The petitioners had a vested right in terms of the original statute of being tried before the learned Judge of the Special Court only on the basis of complaint to be made by the authority prescribed in law and such vested right cannot be withered away or impaired with the aid of amended law which was not in force when the offence was allegedly committed or chargesheet was submitted. The amended law created a new jurisdiction which cannot relate back to the date of submission of charge sheet so as to affect the vested right of the petitioners. 6. THE second submission is that the amended law is not procedural but a substantive one and the substantive right existing on the date of lodgment of the FIR or on the date of submission of chargesheet must remain unaffected. THE retrospective operation will be limited only to the extent to which it has been so made by express words and when the language is clear and the grammatical meaning cannot be otherwise than what it appears on a plain reading it cannot be said that the intention of the legislature was to make the law retrospective. If in any legislation the general object of which is to benefit a particular class of persons any provision is ambiguous so that it is capable of two meanings, one of which would preserve the benefit must be adopted. THE police has been given a substitutive right to investigate and to register a case in respect of a cognizable offence as provided in Chapter XII of the Cr: PC. THE distinction between the words 'substituted' and the word 'substantive law' must not be lost sight of. Reference in this case has been made in Bhagat Ram Sharma vs. Union of India, 1988 (Supp.) SCC 30. With reference to the decision in Ram Kanali Colliery of BCCL vs. Workmen, reported in 2001(4) SCC 236 , it is argued that the part of law which creates and defines and regulates the rights and duties of parties is opposed to adjectival law. Mr. Banerjee has further referred to the following decisions: AIR 1979 SC 703, Arjan Singh and Anr. Mr. Banerjee has further referred to the following decisions: AIR 1979 SC 703, Arjan Singh and Anr. vs. State of Punjab and Ors.; 1984 Vol. 3 SCC 281, Ex. Capt. K.C.Arora and Anr. vs. State of Haryana and Ors.; AIR 1990 SC1849, State of Madhya Pradesh vs. Rameshawar Rathore; 2007 Vol.9 SCC page 109, Dharappa vs. Bijapur Coop. Milk Producers Societies Union Ltd.) 2007(9) SCC 650 , Madishetti Bala Ramul (Dead) by Lrs. vs. Land Acquisition Officer; AIR 1995 SC 1012 , K. S. Paripurnam vs. State of Kerala. Mr. Banerjee refers to State of M.P. vs. Rameshawar Rathore (supra) to argue that that the amendment must be deemed to have come into effect on a particular day is a pointer that puts the matter beyond doubt. Section 6 of the General Clauses Act has also been discussed in the decision in I.T. Commissioner, Bangalore vs. R. Saradanba, AIR 1996 SC 3199 and this decision has been cited in support of the submission that if the amended legislation speaks of a particular day for the commencement of an amended Act there can be no doubt that the law is prospective in operation. An Hon'ble Judge of this Court, it is argued, in Anil Kr. Bhunia vs. State of West Bengal, 2006(1) CHN 672 , held that the Electricity Act is the substitutive law relating to offences under the Electricity Act, 2003 and in view of the said observation it cannot be said that the first proviso to section 151 is retrospective in nature. Reference has also been made to Bhakti Hari Nayak and Ors. vs. Vidyawati Gupta, S.C. Agarwala (HUF) and Ors., reported in 2005(2) CHN 575 , to argue that a procedural law may always change prospectively. Thus, it is submitted that amendment being effective from 15th June, 2007 creating a substitutive right and duties, it is not retrospective. 7. MR. Jayanta Narayan Chatterjee, learned Advocate appearing for the WBSEB and MR. S.S.Roy, learned Advocate appearing for the State of West Bengal submitted that the procedural laws are retrospective in nature unless it is made prospective by necessary implication or by express words. Again, it is not logical to say that an accused can have any right to a particular mode of procedure for his trial in a Court of Law. The amended provision cannot be said to be creative of any right in favour of an accused. Again, it is not logical to say that an accused can have any right to a particular mode of procedure for his trial in a Court of Law. The amended provision cannot be said to be creative of any right in favour of an accused. By the amended law no substantive right of the accused is impaired or lost. An accused does not have any locus standi to say that his trial should be conducted by any particular procedure or in a particular fora. That cannot be the right of an accused. Procedural law is the handmaid of justice and the legislature can mould the procedure to bring about an effective justice delivery System. In the instant case the amended law is truly speaking curative, it having supplied an amission that had crept in the original statute and the defect that lay in the original statute has been sought to be cured or explained in the amended law. MR. Chatterjee has referred to the decisions in Union of India vs. Sukumar Pyne, AIR 1966 8C 1206; Anant Gopal Sheorey vs. State of Bombay, AIR 1958 SC 915 ; Colonial Sugar Refinery Company Ltd. vs. Irving, 1905 AC 369 and Union of India and Anr. vs. Major Bahadur Singh, reported in 2006(1) SCC 368 ; Sudhir G. Angur and Ors. vs. M. Sanjeev and Ors. reported in 2006(1) SCC 141 ; American Home Products Corporation vs. MAC Laboratories Pvt. Ltd. and Anr., reported in 1986(1) SCC 465 ; Gurbachan Singh vs. Satpal Singh and Ors., reported in AIR 1990 SC 209 ; Commissioner of Income Tax, Bombay and Ors., vs. Poddar Cement Private Limited and Ors., reported in 1997(5)SCC 482; Zile Singh vs. State of Haryana and Ors., reported in 2004(8) SCC 1 . 8. IN view of the submission raised at the Bar the followin questions require deliberation: 1. If there is a clear indication that an amended law will take effect from a certain day, will such amended law still be construed as retrospective ? 2. Is the amended law in question, a law of procedure or a substitutive law? 3. If the amended' law is said to be a law of procedure, does it in the circumstances of the case operate retrospectively? 4. Is the amended law curative or explanatory? 5. 2. Is the amended law in question, a law of procedure or a substitutive law? 3. If the amended' law is said to be a law of procedure, does it in the circumstances of the case operate retrospectively? 4. Is the amended law curative or explanatory? 5. Whether the absence of amendment in the original Act resulted in defect proposed to be cured later by an amendment? Presumption against retrospectivity is the rule. Unless the contrary intention appears, an enactment is presumed not to be intended to have a retrospective operation. For, the law presumes that current law should govern current activities as law looks forward not backwards Bennion on Statutory Interpretation, 5th Edition refers to the decision in Philips vs. Eyre, 1870 LR 6 QB 1, which says that retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law. This is not of course the law in general when amended law is procedural. 9. MAXWELL has been referred to by both the parties and the emphatic terms are as follows : "It is a fundamental rule of English Law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication." 10. MR. Banerjee argued that the amended provision has been expressly said to be in force only from 15th June, 2007, while MR. Chatterjee submits that this being a law of procedure the legislator intended to operate it retrospectively. I find in the Principles of Statutory Interpretation by Justice G.P. Singh (11th Edition) an observation of Lord Denning : "The rule that an Act of Parliament is not to be given retrospective effect applies only to statutes which affect vested rights, it does not apply to statutes which only altered the form of procedure or the admissibility of evidence, or the effect which the Courts give to evidence." If the new Act affects matters of procedure only then it applies to all actions pending as well as future. In Anant Gopal Sheorey vs. State of Bombay, AIR 1958 SC 915 , the Supreme Court held that a change in the law of procedure operates retrospectively and 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 and if by any Act of Parliament the mode of procedure is altered; he has no other right than to proceed according to the altered mode. In Union of India vs. Sukumar Pyne (supra). Their Lordships of the Supreme Court observed as follows : "In our opinion, there is force in the contention of the learned Solicitor General. As observed by this Court in 1953 SCR 1188 : 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 Article 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. But if this is a matter of procedure, then it is not necessary that there would be a special provisions to indicate that the new procedural law is retrospective. No right of appeal under the Criminal Procedure Code is affected because no proceeding had been started under the Criminal Procedure Code." 11. IN K. S. Paripoornan vs. State of Kerala and Ors. No right of appeal under the Criminal Procedure Code is affected because no proceeding had been started under the Criminal Procedure Code." 11. IN K. S. Paripoornan vs. State of Kerala and Ors. (supra), this position has been again made explicit and clear 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 rights 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 construed as retrospective unless there is a clear indication that such was not the intention of the legislature. A statute is regarded as retrospective if it operates on cases or facts coming into existence before its commencement in the sense that if effects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. By virtue of the presumption against retrospective applicability or laws dealing with substantive rights transactions are neither invalidated by reason of their failure to comply with formal requirements subsequently imposed, nor open to attack under powers of avoidance subsequently conferred. They are also not rendered valid by subsequent relaxation of the law whether relating to form or to substance. Similarly, provisions in which a contrary intention does not appear neither impose new liabilities in respect of events taking place before their commencement, nor relieve persons from liabilities then existing, and the view that existing obligations were not intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings." 12. CRAIES in his statute law observes that if a retrospective operation is not expressly given, then the Courts may be called upon to construe provisions and answer the question whether the legislature had sufficiently expressed the intention giving the statute retrospectivity. Certain situations like general scope of the law, the remedy sought to be supplied, the law as was existing then, and the law the legislature contemplated to introduce are to be considered. Thus, when a statute is enacted for the purpose of supplying an obvious omission in former law or to explain a former law the subsequent law relates back to the time when the previous law was enacted. Thus, when a statute is enacted for the purpose of supplying an obvious omission in former law or to explain a former law the subsequent law relates back to the time when the previous law was enacted. Such an amended law is called the law explained, the law cured and such a law is by nature retrospective. Thus a declaratory law is retrospective. In Chaman Singh and Anr. vs. Jaikaur,reported in 1969(2) SCC 429 , the Supreme Court held that when a statute is curative retroactivity has to be attached to. The first proposition of Mr. Banerjee that when a statute clearly provides that it has to come into force on a certain day it, is said to be expressly prospective needs examination. Mr. Banerjee has referred to State of M.P. vs. Rameshwar Rathore (supra) and IT Commissioner, Bangalore (supra) and State of Orissa vs. Chandra Sekhar Singh) reported in 1969(2) SCC 334 . The later decision has been given much emphasis by Mr. Banerjee but he missed to note the spirit of the decision. It was argued in State of Orissa vs. Chandra Sekhar Sinha that the statute can be said to be in operation in a Constitutional sense and Their Lordships held that law cannot be said to be in force unless it is brought into operation by legislative enactment, or by exercise of an authority by a delegate, empowered to bring it into operation. The theory of a statute being in operation in a Constitutional sense has no validity. Reference has been made to Darshan Singh (supra) where it has been observed at paragraph 35 that merely because an Act envisages a past act or event in the sweep of its operation, it may not necessarily be said to be retrospective . In this decision a particular amending Act was held to be not retrospective. Here a distinction was made between right to contest and right to appeal, and of the two rights the right to contest was held to be a customary right, while right to appeal is creature of the statute. The change of forum for appeal by enactment may not affect the right to appeal itself. It was held that no person has any right to contest any alienation of immovable property, ancestral or not ancestral on the ground of being contrary to customs after 23rd January, 1973. The change of forum for appeal by enactment may not affect the right to appeal itself. It was held that no person has any right to contest any alienation of immovable property, ancestral or not ancestral on the ground of being contrary to customs after 23rd January, 1973. This provision would thus apply to all pending actions whether at the stage of trial or before tile Court of Appeal. As an appeal is a continuation of the suit and if a right to contest is taken away because of being contrary to the custom then right to contest does not exist at the appeal. In the context of the factualities of the case it was held in Darshan Singh (supra) that the amended law was prospective because by such law a vested right was sought to be taken away. Thus, Darshan Singh case does not apply here. The decision in State of West Bengal and Anr. vs. Md. Khalil and Ors., reported in 1995(1) SCC 684 , does not deal with the situation we are confronted with. Here in this decision it was held that taking cognizance means cognizance of cases and not of a person. Mr. Banerjee argues that taking cognizance of offence is bad in law because the law is not retrospective. True, there is difference between taking cognizance and initiation of a proceeding. It is argued that if the initiation of a proceeding by the police through an FIR is illegal then taking cognizance of offence is also illegal. This argument can be accepted only when it is established that law is prospective and not otherwise. In Bhagat Ram Sharma (supra) it has been held that it is a matter of legislative practice to provide while enacting an amending law that an existing provision shall be deleted and a new provision shall be substituted and such delation has the effect of repeal of the existing provision. If the amendment of an existing law is small, the Act professes to amend; if it is extensive, it repeals a law and re-enacts it. This decision does not answer the question we are beset with. This is not a case here, for the amended law is not a law of substitution for the one which was originally enacted in the original Act. It was provided that Court can take cognizance of offence on a complaint made in writing. This decision does not answer the question we are beset with. This is not a case here, for the amended law is not a law of substitution for the one which was originally enacted in the original Act. It was provided that Court can take cognizance of offence on a complaint made in writing. It has also been provided that the Court can also take cognizance of offence upon a police report. The original law was not repealed by the amendment. In Arjan Singh and Anr. vs. State of Punjab, reported in AIR 1970 SC 703 , it was held that the retrospectivity must not be stretched beyond what was intended when a provision is made retrospective. This decision is of no help to either of the sides. In Ex.-Capt. K.C. Arora vs. State of Haryana, reported in 1984(3) SCC 281 , it has been held that amendment of law taking away the vested right with retrospective effect is invalid. This is the general principle of law. When a vested right is taken away the law amended must not operate retrospectively. In the decision in Dharappa vs. Bijapur Cooperative Milk Producers Societies Union Limited, 2007(9) SCC 109 , the question of repugnancy in terms of Article 254 of the Constitution of India was dealt with. It was held that if law made by the State Legislature governed by an entry in the State List incidentally touches any of the entries in the Concurrent List, Article 254 is not attracted. This decision has no manner of application to the facts of our case. In Madishetti Bala Ramul (dead) by Lrs. vs. Land Acquisition Officer, reported in 2007(9) SCC 650 , what we find is that section 25 of the Land Acquisition Act, 1894 was amended in 1984 and it was held to be a substitutive law. It was held that a substitutive provison cannot have retrospective operation. In Commissioner of Income Tax, Bangalore (supra), factualities were different. Here section 274(2) of the Income Tax Act was deleted by Taxation Laws (Amendment) Act, 1970 and it was held that the Inspecting Asstt. Commissioner did not lose his jurisdiction to continue with the pending proceedings. This decision is not directly refereable to our question. In Commissioner of Income Tax, Bangalore (supra), factualities were different. Here section 274(2) of the Income Tax Act was deleted by Taxation Laws (Amendment) Act, 1970 and it was held that the Inspecting Asstt. Commissioner did not lose his jurisdiction to continue with the pending proceedings. This decision is not directly refereable to our question. The case in Bhakti Hari Nayak vs. Vidyawati Gupta, 2005(2) CHN 575 , dealt with a question regarding the applicability of the Original Side Rules vis-a-vis the amended Civil Procedure Code. Certain amendments were said to be procedural and it can always change prospectively. 13. THE submission of Mr. Banerjee that since the amended law has been said to be effective from a certain date it must be held to be prospective appears to be not correct. A law has to be made effective by a Gazette Notification from a certain date. It does not mean that it will always be prospective. When an amendatory enactment is said to be coming into force on a certain date it does not necessarily signify that irrespective of whether it is a substantive law or procedural law it shall be effective prospectively from that date. When retrospectivity is permissible in case of procedural law by necessary implication, a notification with regard to the coming into operation of the said amended Act does not make it necessarily prospective. THE decision in State of Orissa vs. Chandra Sekhar Singh (supra) has been misplaced. Also the decisions in State of M.P. vs. Rameshwar Rathore (supra) and IT Commissioner, Bangalore (supra) are also misplaced. In Rameshwar Rathore (supra) which Mr. Banerjee seeks to rely on with great emphasis there is an observation that that a date has been put for coming into effect of the section 4 of the Amendment Act, 1974 and that itself put the matter beyond doubt. But at the same breath at paragraph 4 of the judgment it has been observed that it is well settled that the normal rule of construction is that a provision in a statute is prospective but not retrospective but in the case of statutes which are merely declaratory or which rely to only matters of procedure or of evidence it may have retrospective effect if there are indications to that effect or the manifest purpose compels one to construe the Act as such. In this decision offence was committed on 15th March, 1972 when section 4 of the Amendment Act was not there. Having analysed the scheme of the Act it was held that section 4 of the Amendment Act, 1974 was not retrospective. THE decision reached in this case is upon consideration of the nature of the offence vis-a-vis the amended law. In Zile Singh (Supra) the amending statute came into effect on 4th October, 1994 but it was held to be curative in nature and hence given retrospective effect. In Commissioner of Income Tax and Ors. vs. Poddar Cement Private Limited (supra) the amending statute was effective from 1st of April, 1988 but because of it being clarificatory in nature it was given retrospective effect. Similarly, in R. Subramanium and Sons vs. CIT, Cochin, reported in 2001(1) SCC 460 , the amending statute came into force on 1st April, 1989 but it was given retrospective effect since it was said to be clarificatory in nature. THErefore, the date when an amended statute comes into effect is not of prime consideration invariably in all cases in the matter of construction whether the amended statute is prospective or retrospective. 14. THE next question is whether by the amended law any vested right has been created or whether by original Act a substantive right originated. Section 151 dealt with a procedure. It provided that no Court shall take cognizance of offence unless a complaint is made in writing. This is a procedure to taking cognizance of offence. This is a procedure for enquiry, or trial under the Criminal Procedure Code. This provision of section 151 of the Act does not confer any right to the accused. By the amended section 151 (first proviso) the scope of the procedure has been widened to include to the taking cognizance of offence also on police report. This is an adjectival law dealing with the procedure for enquiry or trial and has nothing to do it with creation of a substantive right in favour of the accused. THE accused or prosecution has a right to contest, or to prosecute. THE right to contest or the right to prosecute is a substantive right but the legislature can prescribe the mode of trial and normally an accused has no right to say that he has a right to be tried by a particular procedure or in a particular fora. THE accused or prosecution has a right to contest, or to prosecute. THE right to contest or the right to prosecute is a substantive right but the legislature can prescribe the mode of trial and normally an accused has no right to say that he has a right to be tried by a particular procedure or in a particular fora. It is difficult to hold, therefore, that the amended provision confers a vested right . THE general principle that current activities must be governed by current law does not apply universally when the law is a procedural law. In Sudhir G. Angur vs. M. Sanjeev and Ors., reported in 2006(1) SCC 141 it has been held that all procedural laws are retrospective unless the legislature expressly states to the contrary. THE decision in State of M.P. vs. Rameshwar Rathore (supra) dealt with amendment of section 6A of the Essential Commodities Act by section 4 of the Amendment Act, 1974. Here offences were committed when original section 6A was in force. This decision has no manner of application. Law is clear that an offence is an offence when it is declared to be such when it is committed. Mr. Chatterjee has placed reliance on American Home Products Corporation vs. MAC Laboratories Pvt. Ltd. and Anr., reported in 1986(1) SCC 465 . In this decision it has been held in paragraph 66 that it is a well-known principle of interpretation of statutes that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpably injustice or absurd inconvenience or anomaly. It is argued that if the amended law is held to be prospective then the result would be that offences would go unpunished simply because of the fact that prosecution was launched on police report; and it is with a view to supplying the omission that the legislature brought about this amendment and the intention is very clear and loud that it has to be retrospective. I am agreeable with this submission. The decision in Gurbachan Singh vs. Satpal Singh, AIR 1990 SC 209 dealt, with the question as to whether section 113A of the Evidence Act will be retrospective or prospective. Their Lordships held that it is retrospective . I am agreeable with this submission. The decision in Gurbachan Singh vs. Satpal Singh, AIR 1990 SC 209 dealt, with the question as to whether section 113A of the Evidence Act will be retrospective or prospective. Their Lordships held that it is retrospective . In the said decision Halsbury's Laws of England was quoted as follows : "The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters or procedure or of evidence,, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature...." 15. FURTHER Halsbury's Laws of England was quoted as follows :- "The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidences; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament." 16. LET us see the history of legislation. The Electricity Act, 1910 which is a Central Statute operated in the field for a period of about a century. The penal offence under this Act has been laid down in section 39. Section 50 of the Act laid down that no prosecution shall be instituted against any person for any offence against this Act or any Rule, or order therein; except at the instance of the Government or a State Electricity Board or an Electrical Inspector or of a person aggrieved by the same. This Section 50 has never been construed to mean that no Court can take cognizance of offence except upon a complaint made in writing by any specified person or authority. It simply laid down the law that the prosecution has to be instituted at the instance of the Government or the State Electricity Board. The expressions 'at the instance of means at the request of; it does not mean that no Court can take cognizance of offence except on a complaint made in writing; and for a period of about a century it is the police who had the right to launch prosecution. This section does not at the same time deter the electricity board officers to lodge petition of complaint. This section does not at the same time deter the electricity board officers to lodge petition of complaint. The Second List of the First Schedule of the Criminal Procedure Code, shows that it is a cognizable offence and at the material time the offence was punishable with three years imprisonment. Therefore, at any rate, an FIR could be lodged by a competent person under section 50 of the Electricity Act, 1910 or a petition of complaint could be instituted either alleging offence under section 39 of the Act, 1910. Section 50 of the old law only signifies that the prosecution not launched at the instance of persons mentioned in that section is not maintainable. That is to say, the legislative intent was that a prosecution shall not be instituted by some busybody who had nothing to do with the matter. A scheme of things that had been operative for a long period of about a century underwent a change in section 151 of the Electricity Act, 2003 that came into effect from 2nd June, 2003. The Electricity Act, 2003 is a consolidating statute relating to generation, transmission, distribution and use of electricity, and to promote and protect interest of consumers. Meanwhile, there took place a West Bengal Amendment called the Indian Electricity (West Bengal Amendment) Act, 2001 which came into force from 15th July, 2002. This West Bengal Amendment was prior to the enactment of the Electricity Act, 2003 and also prior to the repeal of the Electricity Act, 1910. By this West Bengal Amendment the forum of trial was changed, punishment was enhanced from the term which was originally there in section 39 and under this amendment Act Special Court was created for trial of the offences under the Indian Electricity Act, 1910 in its application to West Bengal. Then by section 151 of the new Act, 2003 procedure was changed as we have noticed. Meanwhile, a reference was made by an Additional Sessions Judge of this State to this Court whether Court can take cognizance of offence under the Electricity Act, 2003 on the basis of police report. This was Ranjit Kumar Bag, Additional District and Sessions Judge vs. State of West Bengal, reported in 2006(1) C Cr. LR (Cal) 334. Reference was answered by a Division Bench of this Court on 3rd May, 2005. This was Ranjit Kumar Bag, Additional District and Sessions Judge vs. State of West Bengal, reported in 2006(1) C Cr. LR (Cal) 334. Reference was answered by a Division Bench of this Court on 3rd May, 2005. On the date of the decision the amended section 151 did not yet come into being, Necessarily Their Lordships held that Court can take cognizance of offence only upon complaint by specified authority because that was the law then under the new Act. Still then it was held by the Division Bench that there was no bar in investigation by police .It was held that commencement of investigation and power of taking cognizance of offence are distinct acts. After this decision was rendered the first proviso to section 151 came into being to incorporate the provision that the Court can also take cognizance of offence on the basis of police report. Thus by the amended Act the position as was there in, section 50 of the old Act was virtually restored. In such a scenario, the question naturally arises whether it was not the intention of the legislature to make the amended section 151 retrospective. Unquestionably, it is a law of procedure. Unquestionably it did not deal with any substitutive right of an accused. The legislature had in mind that nearly for about 100 years the police had been submitting chargesheet to prosecute a person under section 39 of the old Act and abruptly a change was made in section 151 in the Act 2003. We must not forget that Electricity Act, 2003 is a consolidating statute. The legislature must have been aware of what the procedural law was prior to coming into effect of section 151 of the Act 2003. In order to remove the anomaly, to bring about a harmony in the matter of prosecution, to suppress the mischief and advance the remedy and to supply the omission the legislature inserted by amendment of section 151. It cannot be conceived of that an accused can face trial on the basis of the chargesheet on 15th June, 2007 but an accused in respect of which chargesheet was filed on 14th June, 2007 could not be prosecuted under the amended law. That cannot be the intention of the legislature and with that in view the amendment has been introduced. That cannot be the intention of the legislature and with that in view the amendment has been introduced. As said above when the offence is cognizable in nature power of the police to investigate is a necessary corollary. The situation becomes anomalous or rather paradoxical. When the offence is cognizable investigation, is not barred but it creates an anomaly when section 151 says that cognizance cannot be taken on the basis of the police report. This anomaly is sought to be rectified by the amending Act which inserted a proviso to section 151 of the Act. We have already noticed the section 50 of the Electricity Act, 1910, It is noticeable that sections 39 to 50 of the old Act is under a heading, "criminal offence and procedure". Thus section 50 of the Act 1910 deals with a procedure as to by whom prosecution shall be instituted. Section 151 of the Act 2003 also deals with a procedure dealing with how to take cognizance of an offence. This, is also a procedural law as distinguished from substantive law. Procedural law, it is commonly known prescribes the method of enforcing rights or obtaining redress for their invasion. This procedural law is distinguishable from the substantive law which defines the rights. The procedure means one by which the Court is to administer; it is said to be a machinery as distinguished from its product. By the procedural law formal steps are taken in connection with the judicial proceeding. In this connection Mr. Banerjee referred to Anil Kr. Bhunia vs. State of West Bengal, reported in 2006(1) CHN 672 , where an Hon'ble Judge of this Court held that Indian Electricity Act, 2003 is a substantive law. Mr. Banerjee submitted that since in this decision it has been held that the provision of the Indian Electricity Act deals with substantive law the matter in question has to rest there. Now the ratio of the decision has to be noted. In this reported decision offence was committed when old Act of 1910 was in force. Charge was framed under section 39 of the old Act. One witness was also examined under the old Act. Then the new law came into being with effect from 2nd June, 2003 . In such a situation it was held that section 6 of the General Clauses Act will not cure the defect. Charge was framed under section 39 of the old Act. One witness was also examined under the old Act. Then the new law came into being with effect from 2nd June, 2003 . In such a situation it was held that section 6 of the General Clauses Act will not cure the defect. Here also the learned Judge has observed that every procedural law has to be retrospective. The question whether the amendment by virtue of which proviso to section 151 that was brought into statute by amendment was retrospective or prospective was not decided nor was it the question in the decision. Certain provisions of the Electricity Act, 2003 may be substantive and I am not supposed to consider which sections of the new Act deal with the substantive law. The statute may contain substantive law and also some laws of procedure. 17. IN Gurcharan Singh vs. Directorate of Revenue INtelligence, reported in JT 2008(4) SC 383, it has been reminded that the Court while interpreting a statute must consider the purpose for which the Act has been enacted. Rajendra Kumar vs. Kalyan, reported in 2000(8) SCC 99 , quotes an English decision in Blyth vs. Blyth where it has been held: "The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidences; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the intention of Parliament." 18. AN Hon'ble Single Judge of this Court in Ajoy Kumar Ghosh vs. State of West Bengal and ANr., reported in 2007(2) C Cr. LR (Cal) 463, in a similar situation held the amendment to be retrospective in nature. Thus, having considered the provisions of the amended Act and the judicial decisions rendered by the Supreme Court, I am of the judgment that section 151 of the Electricity Act, as amended is retrospective. 19. IN CRR No. 2356 of 2007 additional point has been taken to the effect Annexure P1 was issued as loss of pilferage but this alleged loss on account of the pilferage does not relate to domestic connection. This is a question of fact that cannot be allowed to be agitated here. The second point is that as the offence is compoundable and police investigation is hindrance towards a compound-ability. This point is also unacceptable. This is a question of fact that cannot be allowed to be agitated here. The second point is that as the offence is compoundable and police investigation is hindrance towards a compound-ability. This point is also unacceptable. Section 152 dealing with componding of offences does not have any conflict with section 151. 20. THREE applications are, therefore, dismissed. Interim orders are vacated. Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible.