G.P Mathur, J.:— The petitioner Phoolan Devi is facing prosecution under the U.P Dacoity Affected Areas Act (U.P Act No. 31 of 1983) (hereinafter referred to as the Act) in Sessions Trial No. 321 of 1981 and Sessions Trial No. 97 of 1984 before the Special Judge, Kanpur Dehat. She has challenged the constitutional vires of the Act as well as its applicability to her on the ground that the crimes giving rise to the aforesaid two sessions trials were committed on February 14, 1981 and March 29, 1980 which is prior to the enforcement of the Act which by virtue of subsection (3) of Section 1 shall be deemed to have come into force on October 22, 1981, the date on which the U.P Dacoity Affected Areas (Ordinance) was promulgated.

2. Sri Ramendra Asthana, learned counsel for the petitioner has submitted that the Act has created some new offences which were not in existence earlier and has provided greater punishment for the already existing 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 such arbitrary acts as internments and deportations without trial and curbs on the liberty of the Press in the early decades of this century, it became an article of faith with the leaders of the freedom movement. As the freedom struggle gathered momentum after the end of the First World War, clashes with British authorities in India become increasingly frequent and sharp and the harshness of the Executive in operating its various repressive mea ures strengthened the demand for a cons itutional guarantee of fundamental rights. As early as 1895, the Constitution of India Bill –– described as Home Rule Bill by Miss Anie Besant hadenvisaged for India a constitution guaranteering to every one of her free citizen freedom of expression, inviolability of one's house, right to property, equality before the law and right to personal liberty. The Indian National Congress at its special session held in Bombay in Auguast 1918 demand that the new Government of India Act should include among other things, guarantees in regard to equality before the law, protection in respect of peoples life and property freedom of speech and press, and right of association. A resolution passed at the Madrassession of the Indian National Congress in 1927 categorically laid down that the basis of the future Constitution of India must be a declaration of fundamental rights. The Nehru Committee appointed by the all party Conference in its report (1928) incorporated a provision for the enumeration of such rights recommending their adoption as part of the future Constitution of India and one of the rights recommended by it was protection in respect of punishment under ex-post facto laws. The Sub-Committee on fundamental ??? its of the constituent assembly considered the draft proposed by its members. Sri Ambedkar's draft contained a provision— No. Bill of attainder or ex-post facto law shall be passed. After considering the draft of Sri K.M Munshi and other members the Sub-Committee made its recommendation which was adopted by the constituent assembly (The Framing of India's Constitution A study by B. Shiva Rao — Chapter 7). The draft proposed by Sri Ambedkar and the constitutional advisor Sri B.N Rau shows that the framers of our constitution while drafting Article 20 had the provisions of U.S Constitution in their mind.

3. Section 9 of Article 1 of U.S Constitution as adopted 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 cases and jurists have said that a better or more accurate definition has not been given.

4. It will be useful to briefly refer to the development of law by the decision of U.S Supreme Court on this constitutional guarantee which is as under:

(1) A Statute which punishes as a crime a previous act which was innocent when committed violates constitutional guarantee. (Calder v. Bull, (1780-1800) 3 US 386 : 1 Law Ed. 648; Beazeil v. Ohio, (1925) 269 US 167 : 70 Law Ed. 216).

(2) Legislation which aggravates the degree of the crime resulting from an act committed prior to its passage violates the constitutional prohibition. (Fletcher v. Peck, (1809-15) 10 US 87 : 3 Law Ed. 162; Bonie v. Columbia, (1964) 378 US 347 : 12 Law Ed. 2d. 894).

(3) Law which imposes additional punishment to that prescribed when a criminal act was committed is ex post facto (Cummings v. Missouri, (1858-60) 71 US 277 : 18 Law Ed. 356; Lindsay v. Washington, (1937) 301 US 397 : 81 Law Ed. 1181). The key question is whether the new law makes it possible for the accused to receive a greater punishment, even though it is possible for him to receive the same punishment under the new law, as could have been imposed under the prior law.

(4) Legislation which in relation to that offence or its consequences alters the situation of a party to his disadvantage or which eliminates, after the date of a criminal act. A defence available to the accused person at the time the act was committed vilates constitutional guarantee (King v. Missouri, (1881-83) 107 US 221 : 27 Law Ed. 506; Beazeil v. Ohia, (1925) 269 US 167 : 70 Law Ed. 216).

(5) A law which alters the legal rules of evidence so as to require less proof than the law required at the time of the commission of an offence, in order to convict the accused, can amount to an ex post facto law within the constitutional guarantee (Kring v. Missori, (1881-83) 107 US 221 : 27 Law Ed. 506, Beazeil v. Ohio, (1925) 269 UA 167 : 70 Law Ed. 216).

(6) Constitutional prohibition does not apply to laws bringing about changes in procedure which do not alter substantial rights, even though they might in some way operate to a person's disadvantage. It does not give defendants a vested right in the remedies and methods of procedure employed in trials for crimes, provided that any statutory procedural change 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 Immigration Act, 1971 which lays down that the Act, as from its coming into force, shall apply in relation to entrants or others arriving in the U.K at whatever date before or after it comes into force, Lord Reid with whom all other Law Lords agreed, observed as follows:

“I cannot see how Section 34(1)(a) can be construed as having any reference to what any entrant may have done in this country before thj Act came into force. All that it does is to subject to the provisions of the Act for the future, any one who entered in the past.”

6. In R. v. Kirk, (1985) 1 All ER 453 the Court of Justice of the European Economic Community observed as follows:

“The principle that penal provisions may not have retroactive effect is one which is common to all the legal orders of the member states and is enshrined in Art. 7 of the European convention tor the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950, TS 71 (1953); Cmd 8969) as a fundamental right; it takes its place among the general principles of law whose observance is ensured by the Court of Justice.

Consequently the retroactivity provided for in Art. 6(1) of Regulation 170/83 cannot be regarded as validating ex post facto national measures which imposed criminal penalties, at the time of the conduct at issue, if those measures were not valid.

This shows that the principle that penal provisions may not have retroactive effect is observed by member-nations of European Economic Community of which almost all the democracies of Western Europe are members.

7. In fact it is not a new principle but is coming down from ancient times will be clear from the following passage on the topic of legislation in “Jurisprudence — The philosophy and Method of the Law” by Edger ??? (First ??? Reprint 1996) at page 327:

“Another typical feature of a legislative act, as distinguished from a judicial pronouncement, was brought out in Mr. Justice Holmes's ??? in Prentis v. Atlantic Coast Line Co., (1908) 211 US 210, at 226. As he pointed out in this opinion, while a “judicial inquiry investigates, declares, and enforces liabilities as they ??? on present or past facts and under laws supposed already to exist,” it is an important characterstic of legislation that it “looks to the future and changes existing conditions by making a new rule to be applied 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 statutory construction. In the United States, ex post facto laws incriminal cases and retrospective state laws impairing the obligation of contracts areexpressly forbidden by the terms of the federal Constitution; in other types of situations, a retroactive legislative infringement of vested rights may present ??? of constitutional ??? under ??? process clause of the Constitution.”

8. Article 11(2) of the Declaration of Human Rights of the United Nations lays down as under:

“No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.” Article 7 of the Convention for the protection of Human Rights and Fundamental Freedoms reads as under:

(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or International law at the time when it was committed, Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

(2) This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations. India is a member of the United Nations Organization and is also a signatory to the aforesaid conventions. In Peoples Union for Civil Liberty v. Union of India, (1997) 1 SCC 301 the Apex Court has held that it is almost an accepted proposition of law that rules of customary International Law, shall be deemed to be incorporated in the domestic law. For holding this the Court relied upon the observation made by Sikri C.J in Keshava Nand Bharati, (1973) 4 SCC 225 : (AIR 1973 SC 1461 at p. 1510) that in view of Article 51 of the directive principles the Court must interpret the language of the constitution if not intractable in the light of the United Nation Charter and the solemn declaration subscribed by by India. The Court also took notice of similar observation made by Khanna, J. in A.D.M, Jabalpur, (1976) 2 SCC 521 : (AIR 1976 SC 120 at p. 1259) that if two constuctions of the Municipal Law are possible, 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 Ltd. v. State of Haryana, (1990) 2 SCC 71 : AIR 1990 SC 781 at 791 and Synthetics and Chemicals Ltd. v. State of U.P, (1990) 1 SCC 109 : AIR 1990 SC 1927 at 195. The following observation of Vivian Bose, J. in State Of West Bengal v. Anwar Ali Sarkar,, AIR 1952 SC 75 (Paras 85 and 86) though given immediately after enforcement of the Constitution has become more relevant now.

“I find it impossible to read these portions of the Constitution without regard to the back ground out to which they arose. I cannot blot out their history andomit from consideration the brooding spirit of the times. They are not just dull lifeless words static and hine-bound as in some mummified manuscript, but living flames intended to give life to a great nation and order its being, tongues of dynamic fire potent to mould the future as well as guide the present. The constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of changing world with its shifting emphasis and differing needs………………Doing that, what is the history of these provisions? They arose out of the fight for freedom in this land and are but the endeavour to compress into a few pregnant phrases some of the main attributes of the sovereign democratic republic as seen through Indian eyes. There was present to the collective mind of the constituent Assembly, reflecting the mood of the peoples of India, the memory of grim trials by hastily constituted tribunals with novel forms of procedure set forth in Ordinance promulgated in haste because of what was then felt to be the urgent necessities of the moment.”

10. Therefore, a liberal construction has to be given to the language used in sub-clause (1) of Article 20. The interpretation given to Section 9 of Article 1 of American Constitution by US Supreme Court can be helpful for the purpose of understanding the true content and scope of guarantee enshrined in sub-clause (1) of Article 20 of Constitution of India. The Supreme Court has extensively referred to decisions of US Supreme Court while interpreting Articles 14 and 19 of the Constitution in State Of Uttar Pradesh v. Deoman Upadhyaya , AIR 1960 SC 1125 and Express News Papers v. Union of India, AIR 1958 SC 578. While dealing with other provisions of the Constitution the decisions rendered by U.S Supreme Court have been considered in detail in Automobile 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. Similarly content and scope of Article 21 has been very much enlarged in Menaka Gandhi v. Union of India (supra) and the expression “procedure established by law” has been interpreted to mean a procedure which is just, fair and reasonable. In R. Raj Gopal v. State of Tamil Nadu, (1994) 6 SCC 632 : (1994 AIR SCW 4420) right to privacy has been held to be implicit in Art. 21. Therefore, it will not be proper to give a very restricted meaning to subclause (1) of Art. 20.

12. Delay in the trial is not an unknown phenomenon and there are numerous instances where ordinary cases have taken more than 5 to 7 years to conclude. Such state of Affairs was noticed in Hussainara Khatoon, (1980) 1 SCC 93 : AIR 1979 SC 1360, 1369, 1377 and with the passage of time the workload has increased resulting in further delay in disposal of cases. In the case in hand the crimes were committed in March 1980 and Feb. 1981 but the trial of the petitioner is yet to commence. The entire blame for this delay cannot possibly be laid upon her as she was confined in jail for 11 years from Feb. 1983 to February 1994. Section 428, Cr. P.C no doubt provides that the period of detention during investigation, inquiry or trial of the same case and before the date of conviction shall be set off against the term of imprisonment imposed on conviction. In the event of acquittal the accused cannot be compensated in any manner. If he is sentenced to imprisonment for life the benefit of this provision will not be available in view of the law laid down in Kartar Singh v. State of Haryana, (1982) 3 SCC 1 : AIR 1982 SC 1439. Thus in a case where the accused is either ultimately acquitted or is sentenced to imprisonment for life or death any preconviction incarceration is an additional imprisonment as a jail being jail it hardly matters to him whether he is confined as an undertrial prisoner or as a convict. If a subsequent legislation makes no provision for bail orcontainsan illusory provision and the trial is delayed, the accused may have to remain confined in jail indefintely. A literal interpretation of the constitutional guarantee can provide no protection in such a situation as the confinement would be prior to conviction and would also not be a penalty. Thus the matter of grant of bail is of paramount importance to an accused. Therefore, any such legislation enacted subsequent to the commission 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 now be examined. The proviso to sub-sec. (1) of S. 7 of the Act lays down that all cases triable by a Special Court under the Act pending before any court immediately before the date of the commencement of the 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 Act. This shows that irrespective of the date of commission of the offence all cases triable by a Special Court under the Act shall be tried and disposed of in accordance with the provisions of the Act and no distinction is made even if the offence was committed prior to the enforcement of the Act. Section 2(b) defines a scheduled offence which in relation to a dacoity affected area means an offence specified in the schedule to the Act being an offence committed by a scheduled offender. The schedule appended at the end of the Act will show that the offences mentioned from No. (ii) to (viii) are new offences which have been created for the first time by the Act. Section 364-A, I.P.C which was inserted by Act No. 42 of 1993 w.e.f May 22, 1993 has a different import as the compulsion mentioned therein should be against a government or any foreign State or International Inter-Governmental Organisation. These offences were not in existence when the petitioner is alleged to have committed the crime in question. Similarly S. 15, whereunder a person found in possession of property which he cannot satisfactorily account for and which has been acquired by or as a result of the commission of a scheduled offence is liable to be punished with imprisonment up to seven years, is also a new offence created by the Act. Section 12(b) provides punishment for a scheduled offence, other than an offence punishable with death or imprisonment for life under the Indian Penal Code, and it may extend to 10 years and with fine. There are some offences in clause (i) of the Schedule like 325, or 308 or 402, I.P.C where the maximum sentence provided under the Indian Penal Code is 7 years, but by virtue of this provision the sentence has been enhanced to 10 years. Section 13 of the Act provides that notwithstanding anything contained in S. 354(3), Cr. P.C when the conviction under the Act is for the murder of more than one person or murder of a public servant or a member of his family and where 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 for awarding death sentence and the current view is that the capital punishment should be awarded in rarest of a rare case. It is, therefore, obvious that S. 13 has the effect of enhancing or inflicting greater penalty. Section 14 gives the penalty for the scheduled offences which are not covered by S. 12. Section 16 of the Act provides that the minimum punishment for a scheduled offence shall be imprisonment for three years. There are many such offences described in clause (i) of the schedule for which the minimum punishment under the Indian Penal Code can be imprisonment till the rising of the Court like Ss. 325, 326, 327, I.P.C The effect of S. 16 is that the Court is not left with any discretion and has to award a sentence of not less than three years R.I and therefore, this provision would act to the detriment of the accused, Section 27 raises a presumption which alters the rules of evidence and acts to the detriment of the accused. However this provision is akin to S. 113-A of the Evidence Act (except for the use of words ‘may’ and ‘shall’) which the Apex Court, after taking notice of the law in England, has held to be procedural and consequently retrospective in Gurbachan Singh v. Satpal Singh, (1990) 1 SCC 445 : AIR 1990 SC 209 and therefore it will apply.

15. Section 10 makes a special provision regarding bail and the effect of sub-clause (b) is that where the prosecution opposes the application for bail, bail can be granted only if the court is satisfied that there are ‘easonable grounds for believing that the accused is not guilty of a scheduled offence. If this condition is not satisfied, the bar operates and the person under detention cannot be released on bail. Section 37 of N.D.P.S Act contains almost a similar provision and in Narcotics Control Bureau v. Kishan Lal, (1991) 1 SCC 705 : AIR 1991 SC 558, it has been held that the power of the High Court to grant bail under S. 439, Cr. P.C are subject to the limitations contained in S. 37 and the restrictions placed on the power of the court under the said section are applicable to the High Court also in the matter of granting bail. No doubt the first proviso to sub-sec. (b) of S. 10 carves out an exception and court may release a person on bail if he has been under custody for 180 days. This is subject to further restriction and if the conditions mentioned in the second proviso are satisfied 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 submitted that the provisions of the Act are discriminatory as a person accused of having committed the same type of scheduled offence like dacoity in an area other than dacoity affected area as notified under S. 3 of the Act wi 11 be tried under the normal procedure of 1973 Code while a person accused of having committed a scheduled offence in the dacoity affected area will be tried under the provisions of the present Act. In my opinion the contention raised by the learned counsel is wholly misconceived. A conjoint reading of sub-sees. (2) and (3) of S. 7 of the Act will show that the Special Court while trying a scheduled offence shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 in so far as they are not inconsistent with the provisions of the Act. The only inconsistency which can be discerned is that under the Act the Special Court directly takes cognizance of a scheduled offence and there are no commital proceedings. The avoidance of the committal proceedings are neither discriminatory nor cause any prejudice to the accused. Unlike the Code of 1898 which provided an elaborate procedure for recording evidence of prosecution witnesses with a right of cross-examination to the accused and also examination of the accused in Chapter XVIII (S. 206 to 220) there is no such provision in the present Code. Under S. 209 of 1973 Code the Magistrate is required to commit the case to the Court of Sessions if it appears to him that the offence is triable exclusively by the Court of Session. The evidence of prosecution witnesses is not recorded. Therefore, the Act cannot he said to be discriminatory on the ground that there are no commitment proceedings and cognizance is straightway taken by the Special Court. It is well known commitment proceedings take time which results in delay in disposal of a case. The primary object which weighed with the legislature while enacting the Act was to curb effectively the commission of scheduled offences and to make provisions for speedy trial thereof. It may be mentioned here that there are several statutes like Essential Commodities Act, Prevention of Corruption Act and N.D.P.S Act in which there are no commitment proceedings and cognizance is straightway taken by the Sessions Judge trying the offence.

18. Regarding the contention that even those who committed the offence prior to the enforcement of the 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 by court different from that which had competence at the time cannot ipso facto be held to be unconstitutional and no accused has any fundamental right to trial of a particular court or by a particular procedure. Therefore, the provisions of the Act cannot per se be held to be violative of Art. 14 of the Constitution and the challenge made on that ground must fail.

19. Learned Addl. Advocate General has submitted that the trial of the petitioner having not commenced it is not open to her to challenge the vires of the Act or to urge that her fundamental right guaranteed under sub-clause (1) of Art. 20 has been violated, as the stage for taking such a plea can arise only after her conviction. There is no dispute that the Special Judge (Dacoity Affected Areas Act) Kanpur Dehat has already taken cognizance of the offences in accordance with S. 7 of the Act and has fixed a date for the appearance of the petitioner in court. The application for bail which the petitioner may move after being taken into custody has to be decided in accordance with S. 10 of the Act. If according to the petitioner the provisions of the Act or the application thereof violate her fundamental right, she is certainly entitled to challenge the same at this stage. The injury, if any, caused to her by application of S. 10 of the Act cannot be rectified in an appeal against the final judgment. Article 226 of the Constitution empowers the High Court to issue writs for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. It has been held in K.K Kochunni v. State of Madras, AIR 1959 SC 725. that a writ petition at the instance of a person whose fundamental right has been infringed by the mere operation of an enactment is maintainable even if there is no overt act by the State. In S.M.D Kiran Pasha v. Government of A.P, (1990) 1 SCC 328, it has been held that if fundamental right of a person is threatened and overt acts towards violation have already been done, he can approach the High Court under Art. 226 of the Constitution. Therefore, the objection raised to the maintainability of the petition at this stage has no substance. The contention that in the two sessions trials chage-sheet has been submitted against the petitioner for offences under the Indian Penal Code which were in existence at the time of the commission of the crimes and 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 registered as Criminal Appeal No. 16 of 1997. What is under challenge in the aforesaid appeal is the order passed on the applications moved by the State of U.P for withdrawal of the prosecution. The questions raised in the present petition were neither urged nor considered in the criminal revision. In the application for permission to urge additional grounds, the only plea taken is that as the Act was enacted after the commission of the crime and the notification regarding the declaration of Kanpur Dehat as a dacoity affected area and constitution of the Special Court was subsequent, the Special Judge who is dealing with the case is ‘quorum non juris’ and therefore, had no jurisdiction to proceed with the matter. The grounds do not show that any plea regarding constitutional validity of the Acr or that the provisions of the Act should not be made applicable to the petitioner in view of sub-clause (1) of Art. 20 of the Constitution has been raised. In the affidavit filed on behalf of the petitioner on March 6, 1997 it is stated that the application is merely pending and even notices have not been issued. Sri R. Asthana, learned counsel for the petitioner made a statement at the bar that the application has neither been considered by the court nor any order has been passed so far. Therefore, the contention that this court should not hear the writ petition cannot be accepted.

21. Learned Addl. Advocate General had also urged that as the fact of moving the application for urging additional grounds has not been disclosed in the present writ petition, the same is liable to be dismissed. In support of this submission he has placed reliance on Atiq Ahmad v. Chief Minister, (1955) 2 EFR 378; State of U.P v. Ramashraya Yadava, (1996) 3 SCC 332 : AIR 1996 SC 1188 : (1996 All LJ 596); S.B Mathur v. Matiullah, 1995 Supp (2) SCC 650 and Vijay Kumar v. State of Haryana, (1983) 3 SCC 333 : AIR 1983 SC 622. In my opinion on the facts of the present case it cannot be held that the petitioner is guilty of concealment of any material fact. The cases cited are clearly distinguishable as in the first three a second writ petition was filed without disclosing the filing of an earlier petition and in the fourth one some material fact was concealed. It has been held in Nand Kishore v. State of Punjab, (1995) 7 JT (SC) 69 : (1995 AIR SCW 4650) that challenge to the constitutionality 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 application before the Presiding Officer of the Special Court itself where her trials are pending. He has cited the case law reported in Kartar Singh v. State Of Punjab., 1994 SCC (Cri) 899, in support of his contention.

25. Section 7 of the Uttar Pradesh Dacoity Affected Areas Act, 1983 (hereinafter described as the “Act”), provides the procedure and powers of Special Courts. Section 7 of the Act being releyapt is being quoted below:

“7. Procedure and Powers of Special Courts:

(1) A Special Court may take cognizance of any scheduled offence:—

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon its own knowledge that such offence has been committed.

Provided that all cases triable by a Special Court under this Act, pending before any Court immediately before the date of the commencement of this 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 this Act.

(2) A Special Court shall, while trying a scheduled offence, so far as may be, follow the procedure provided by the Code of Criminal Procedure, 1973 for trial of sessions cases;

Provided that the Special Courts may, wherever necessary, perform the functions of a Magistrate under S. 207 of the said Code and proceed to try the case as if the case had been committed to Court of Session for trial under the provisions of such Code.

(3) Save as otherwise expressly provided in this Act, the provisions of the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973 shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before a Special Court and for the purposes of the provisions of the said Code, the Special Court shall be deemed to be a Court of Session and the person conducting the prosecution before a Special Court shall be deemed to be a public prosecutor.

(4) A Special Court may, with a view to obtain the evidence of any person supposed to have been directly or indirectly concerned in or privy to any scheduled offence, tender a pardon to such person on condition of his making a full and true 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 upon a police report the option has not been kept open for the Special Judge to consider as to which provision of the Act would not be applicable to such an accused. In contrast to this, however, in S. 18 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, an option has been given to the Designated Court to apply his mind as to whether the offence is triable by it or not and in case he comes to the conclusion that he has no jurisdiction to try such offence, he shall transfer the case for the trial of such offence to any court having jurisdiction under the Code of Criminal Procedure and the Court to which the case is transferred may proceed with the trial of the offence as if he has taken cognizance of the offence. From the above it is clear that an accused of the scheduled offence under the Act, who has allegedly committed an offence before the enforcement of the Act has no option except to invoke the extraordinary jurisdiction of this Court under Art. 226 of the Constitution. Therefore, the contention of the learned Additional Advocate General to the effect that the petitioner has remedy to move application before the Court of Special Judge, Dacoity Affected Area where her trial is pending for redressal of her grievances raised in the present petition is overruled.

26. Article 20(1) of the Constitution has two parts. The first part provides that no person shall be convicted of any offence save for violation of a law in force at the time of the commission of the act charged as an offence. The second part provides that no person shall be subjected to a penalty greater than that which may have been inflicted under the law in force at the time of the commission of the offence. It is only retroactive criminal legislation that is prohibited under Art. 20(1) of the Constitution. However, a law which provided for a minimum sentence of fine on conviction cannot be regarded as a statute which might have been inflicted under the law at the time of the commission of the offence wherefor such an offence there was no limit as to the extent of fine which might be imposed. In the case of Satwant Singh v. State of Punjab (AIR 1960 SC 266) (supra) Hon'ble Syed Zafar Imam J. while delivering the judgment for himself as well as on behalf of Hon'ble B.P Sinha, the Chief Justice, Hon. K.N Wanchoo and Hon. K.C Das Gupta, JJ. observed as under (at pp. 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 be a question of fact in each particular case but no such question can arise in a case where the law imposes a minimum sentence of fine. Under Art. 20 of the Constitution all that has to be considered is whether the ex post facto law imposes a penalty greater than that which might be inflicted under the law in force at the time of the commission of the offence. For the reasons already stated it cannot be said that S. 10 of the Ordinance imposed any such penalty and, therefore, was in contravention of the provisions of Art. 20.”

27. In the matter of T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177 : AIR 1983 SC 150, Hon'ble A.P Sen, J. observed:

“It is only retroactive criminal legislation that is prohibited under Art. 20(1). The prohibition contained in Art. 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he 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. It is quite clear that in so far as the Central Amendment Act created new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable. But in so far as the Central Amendment Act reduces the punishment for an offence punishable under S. 16(1)(a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense.”

28. The distinction between S. 9 of Art. 1 of the United States Constitution and Art. 20(1) of the Indian Constitution is that in the former ex post facto laws are void but in the latter the ex post facto laws providing conviction of any offence for violation of a law enforced retrospectively for the commission of the act charged as an offence and in respect of laws imposing penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence was unconstitutional and hence void. But, ex post facto laws which impose a lesser sentence 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 such a law is retrospective and, if so, to what extent depends upon the interpretation of a particular statute having regard to the well settled rules of construction…”

30. The definitions of the ‘scheduled offence’ and the ‘scheduled offender’ provided in Ss. 2(b) and 2(c) are as under:

“2(b) “Scheduled offence” in relation to a dacoity affected area means an offence, specified in the Schedule to this Act, being an offence committed by a scheduled offender;

(c) “Scheduled offender” means a person who commits or has committed or is accused of committing or attempt to commit dacoity or robbery as such or being so connected with scheduled offence as to form part of the same transaction, whether such offence as to form part of the same transaction, whether such offence has occurred at the same time and place or at different times and places.”

31. In the schedule the offences punishable under certain sections of the Indian Penal Code have been given for which the petitioner is to be tried in the Sessions trials in question and hence it cannot be said that commission of those acts by the petitioner were not offences in fact. But the rest of the offences shown in the Schedule were certainly not the offences under any Act at the time of the alleged commission of the offences.

32. The definition of the “offence” has been given in S. 3(38) of the General Clauses Act, 1897 according to which “offence” shall mean any act or omission made punishable by any law for the time being in force and hence for an offence there must be an act or omission made punishable by law for the time being in force. In view of this the petitioner cannot be convicted for the offences mentioned in items (ii) to (viii) of the Schedule appended to the Act, and also the penalty greater than that which has been provided in the Indian Penal Code for such offences can be imposed against her. But she can be tried under the U.P Dacoity Affected Areas Act by the Special Judge constituted under S. 5 of the said Act, for the offences mentioned in item No. (i) of the Schedule to the Act.

33. Order accordingly.