TaxTMI 
TaxTMI 
2026 (7) TMI 1550
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.... holding that the availability of an alternative remedy of filing a revision under Section 397 of the CrPC would operate as a bar to the maintainability of a petition under Section 482 of the CrPC? 6 (II) Whether the non-compliance with the mandatory requirement of an opportunity notice under the proviso to Section 61(2) of FERA warrants quashing of the criminal complaints and the summoning order issued against the appellants? 14 (III) Whether the appellants' fundamental right to a speedy trial under Article 21 of the Constitution of India could be said to have been violated in the facts and circumstances of the present case? 27 F. CONCLUSION 33 1. These criminal appeals arise from the judgment and order passed by the High Court of Judicature at Bombay dated 22.03.2012, in Criminal Application Nos. 182-183 of 2012, respectively, by which the High Court declined to quash the complaint and the order issuing summons to the appellants herein. The appellants had prayed before the High Court to quash two complaints bearing Criminal Case Nos. 1503-1504 of 2002 for the offence punishable under Sections 56(1) and 73(3) of the Foreign Exchange Regulation Act,....
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.... for a transaction which happened in the year 1992, so as to overcome the sunset period provided under FEMA, which would have come to an end on 01.06.2002. He further submitted that the High Court erred in holding that the quashing petitions under Section 482 of the CrPC were not maintainable, as an alternate remedy of revision under Section 397 was available in the present case. In support of his submission, reliance was placed on the decision of Dhariwal Tobacco Products Ltd. v. The State of Maharashtra, reported in (2009) 2 SCC 370, wherein this Court held that the availability of an alternate remedy of revision under Section 397 of the CrPC cannot be a ground to reject a petition under Section 482 of the CrPC. 5. Mr. Divan further submitted that, as per Section 61(2) of the FERA, no complaint with respect to an offence under Section 56 can be lodged unless an opportunity notice is given to the proposed accused. Referring to the facts, he submitted that in the complaint, the complainant allegedly refers to an opportunity notice, however, neither such opportunity notice was placed on record, nor was any such opportunity notice ever received by the appellants. Since the respond....
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....le 21 of the Constitution would get attracted only if there is an intentional delay on the part of the prosecution, whereas the records of the present case show that there is no intentional delay on the part of the department and, therefore, Article 21 of the Constitution is not applicable. D. ISSUES FOR THE DETERMINATION 9. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions fall for our consideration: (I) Whether the High Court was correct in holding that the availability of an alternative remedy of filing a revision under Section 397 of the CrPC would operate as a bar to the maintainability of a petition under Section 482 of the CrPC? (II) Whether the non-compliance with the mandatory requirement of an opportunity notice under the proviso to Section 61(2) of FERA warrants quashing of the criminal complaints and the summoning order issued against the appellants? (III) Whether the appellants' fundamental right to a speedy trial under Article 21 of the Constitution of India could be said to have been violated in the facts and circumstances of the present case? E. ANAL....
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.... remedy under Section 115 CPC is statutorily barred, recourse to the jurisdiction under Articles 226-227 of the Constitution remains available, as has been held by this Court, and that similarly, even where a second revision before the High Court is barred under Section 397(2) of the CrPC following dismissal of the first by the Court of Session, the inherent power of the Court continues to be available. This Court additionally noted that the High Court's power is traceable not merely to Section 482 but also to Section 483 of the CrPC, which casts a duty on the High Court to exercise continuous superintendence over subordinate Courts of Judicial Magistrates so as to ensure the expeditious and proper disposal of cases. Since the inherent power of the High Court is not conferred by statute but is merely preserved thereunder, this Court held that it would be difficult to conceive of that jurisdiction being ousted merely because a revisional remedy was also available. The relevant observations are as under: "6. Indisputably issuance of summons is not an interlocutory order within the meaning of Section 397 of the Code. This Court in a large number of decisions beginning fro....
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....397, can be read as affecting or limiting the inherent power conferred under Section 482, though such power ought not to be exercised so as to invade areas specifically set apart for other powers conferred under the CrPC. There is, however, no absolute bar on the exercise of inherent jurisdiction where an abuse of the process of the court or some other extraordinary situation warrants its invocation, the only limitation upon such exercise being one of self-restraint only. The relevant observations are as under: "6. In our considered view any attempt to explain the law further as regards the issue relating to inherent power of the High Court under Section 482 CrPC is unwarranted. We would simply reiterate that Section 482 begins with a non obstante clause to state: "482. Saving of inherent powers of High Court.-Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice." A fortiori, there can be no total ban on the exercise of such wholesome jurisdi....
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....ourt further held that the nomenclature under which a petition is filed is wholly immaterial, and that in order to do substantive justice, the High Court can always treat and convert a petition filed under Section 482 CrPC as one under Section 397 CrPC, and vice versa.. The relevant observations are as under: "7. This Court has, in a catena of decisions, provided that nomenclature of a petition is immaterial and for doing substantive justice, the High Court can always convert a petition under Section 482 CrPC to a revision under Section 397 CrPC and vice versa. The approach of the High Court in dismissing the petition filed by the appellant under Section 482 CrPC on the hyper technical ground that she had to avail the remedy of revision cannot be appreciated because the same has unnecessarily compelled the appellant to approach this Court by way of this appeal filed under Article 136 of the Constitution of India. 8. In Madhu Limaye v. The State of Maharashtra, this Court held that the label of a petition filed by an aggrieved party is immaterial. The High Court can always examine the controversy in an appropriate case in exercise of its inherent powers. 9....
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.... been made the threshold on which the maintainability of the appellants' applications under Section 482 was to be tested. We are of the opinion that the High Court erred in treating the availability of the remedy of revision under Section 397 of the CrPC as the threshold for examining the maintainability of the appellants' applications under Section 482 of the CrPC. 15. The respondents contended that the High Court dismissed the appellants' applications solely on merits, that is, on the ground of delay, without reference to any threshold objection as to maintainability. We are unable to accept this submission. The impugned order, at its very inception, frames the common thread running through all ten applications disposed of by it, including Criminal Application Nos. 182 and 183 of 2012, respectively, filed by the appellants, as being that each sought to invoke Section 482 of the CrPC "without first exhausting the remedy of seeking revision before the Court of Sessions", and records that the applications were listed together specifically to examine whether such a course was desirable. This threshold view on maintainability thus forms the organising premise of the impugned order ....
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....e Reserve Bank authorised by the Reserve Bank by a general or special order: Provided that where any such offence is the contravention of any of the provisions of this Act or of any rule, direction or order made thereunder which prohibits the doing of an act without permission, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission." (Emphasis Supplied) 17. In Devashis Bharracharya v. Union of India, reported in 2009 SCC OnLine Del 1018, the petitioner therein had assailed a complaint and the consequent summoning order under Section 56 of FERA read with Section 61(2)(ii), respectively, on the ground that the criminal complaint had been instituted even before the expiry of the three-day period granted to him to show cause. The entire challenge of the petitioner rested on the contention that his prosecution under FERA was illegal and without jurisdiction for failure to comply with the proviso to clause (ii) of sub-section 2 of Section 61. The facts were that an opportunity notice dated 17.05.2002 was served upon the petitioner on 25.05.2002, requiring him to state in writing within t....
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.... of the FERA, 1973 certainly results in drastic penal consequences. The statute prescribes that it shall be lawful for any Metropolitan Magistrate and for any Magistrate of the First Class to pass a sentence of imprisonment for a term exceeding three years or of fine exceeding five thousand rupees on any person if found guilty of the offence under clause (ii) of sub-section 2 of Section 61 of the Act. The present case is not a case where the legislation does not prescribe compliance of the principles of natural justice. xxx xxx xxx 23. In this background, the opportunity which the respondents are directed to give under the proviso to clause (ii) of sub-section 2 of Section 61 is a matter which is required to be treated with utmost seriousness with which the respondents do not appear to have treated the same in the instant case. 24. There can also be no dispute that the requirement of the statute is mandatory so far as giving the opportunity of the person accused of an offence under section 56 or 57 is concerned. 25. The well-settled principle that where law mandates something to be done in a particular way, then it has to be done in that way or n....
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....ucially, and squarely applicable to the case at hand, the High Court of Delhi noted that the complaint neither disclosed any date of service of the opportunity notice nor was any proof of service filed by the department in support of the complaint, the respondent having merely stated that an opportunity notice had been served without any accompanying service report. It was further an admitted fact that no proof of service was filed at the time of filing the complaint to establish that an opportunity under Section 61(2) had in fact been given to the petitioner. The Court held that this would amount to non-compliance of the principle of natural justice envisaged under Section 61(2) of FERA, and reiterated, relying upon the ratio in Devashis Bhattacharya (supra), that before initiation of proceedings under Section 56 of FERA, an opportunity must be granted to the offender, and that the Magistrate is under a statutory duty to satisfy himself, before taking cognizance, that such an opportunity had in fact been given. The Court accordingly held that the summoning of the petitioner was, in a mechanical manner, and accordingly quashed both the complaint and the summoning order. The relevan....
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....order taking cognizance in the instant case and issuance of summons is contrary to law. xxx xxx xxx 27. In the complaint neither any date of service of opportunity notice is given nor any proof of service to effect is filed by department in support of the complaint did not mention the factum of compliance with Section 61(2) and only gave date of the notice in the complaint. The respondent in para 5 at page 22 of complaint simply stated that one opportunity notice and Show Cause Notice dated 4th April, 2002 was served upon the petitioner which means an opportunity under Section 61(2) by affixation but no service report along with the same was filed at the time of initiation of proceedings before the trial court till date. On 17th May, 2002 the respondent served the opportunity notice by way of affixing the same at a address given therein where the petitioner is not even residing despite the fact though the respondent was having the knowledge of present address of the petitioner where he is actually living which is also mentioned in the opportunity notice which reflects no proper care is taken to serve the notice in accordance with prescribed in Rule 3 of the FERA w....
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....nted. Since the opportunity notice had admittedly not been served upon the petitioners, the Court held that the Trial Court had clearly erred in taking cognizance, and accordingly set aside the impugned order on charge. The relevant observations of the Court are extracted below: "7. The requirement of proviso to Clause (ii) of sub-Section (2) of Section 61 is that an opportunity of showing that the accused had the requisite permission, is a mandatory requirement. 8. A Coordinate Bench of this Court in Sanjay Malviya v. R.K. Rawal, CEO Enforcement Directorate : (2015) 149 DRJ 231 has held that there is a statutory bar imposed under Section 61 of FERA on a magistrate on taking cognizance unless it is shown that the opportunity of showing availability of permission has been granted to the accused. 9. It is well settled that where law mandates something to be done in a particular way, it has to be done in that way or not at all. 10. Before initiation of proceedings under Section 56 of the FERA, an opportunity must be granted to the accused. Before taking the cognizance of the offence Magistrate is under statutory duty to satisfy himself that an oppor....
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....roceedings, including the complaint filed against the petitioner. The relevant observations of the Court are extracted below: "22. It is clear from the aforesaid that the ED did not have the fresh and correct address of the petitioner which was not disclosed by the Central Bank of India despite being fully aware of the same. Having regard to the aforesaid undisputed admission being part of judicial record, propels this Court to conclude that the notice under proviso to Clause (ii) of sub section (2) of Section 61 FERA was never served upon the petitioner. xxx xxx xxx 24. The plain reading of the proviso would indicate that no complaint can be filed unless the person accused of such offence has been given an opportunity of showing that he has such requisite permission [...] xxx xxx xxx 28. A similar issue has been subject matter of a case decided by the learned Single Judge of this Court on 05.04.2018 in Crl. Rev. P. 642/2017 titled United India Airways Ltd. v. Chief Enforcement Officer, Enforcement Directorate, 2018 SCC OnLine Del 8233. xxx xxx xxx 31. This Court respectfully concurs with the observations and the ratio ....
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....n record any additional documents, if any; however, the respondents failed to place on record the copy of the alleged opportunity notice. To this date, the respondents have not even stated the date of such notice, nor have they sought to place the same on record either before the Magistrate, the High Court, or before this Court. Further, the respondents have not substantiated the proper service of the opportunity notice by placing on record any proof of service. In fact, the Magistrate took cognizance on the complaint without recording his satisfaction of compliance with the mandatory requirement under Section 61(2) of FERA, since no such opportunity notice was on record before the Magistrate. The High Court also ignored this issue altogether. 23. Besides, the appellants have, time and again, before the High Court as well as this Court, claimed that the Magistrate could not have taken cognizance on the complaint since no opportunity notice under Section 61(2) was served upon or received by them. The respondents have not even denied such a claim, either by apprising the High Court or this Court of the date of the alleged opportunity notice, or by refuting it through production of....
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.... same time, this Court was equally emphatic that delay is often a deliberate defence tactic, and since the burden of proving guilt lies upon the prosecution, delay ordinarily works to the prejudice of the prosecution rather than the accused. This Court accordingly held that in every case where infringement of the right is alleged, the first question to be put and answered is: who is responsible for the delay? Proceedings taken in good faith by either party to vindicate their rights cannot be treated as a delaying tactic, nor can the time taken in pursuing such proceedings be counted towards delay. This Court further held that undue delay must be assessed having regard to all the attendant circumstances, including the nature of the offence, the number of accused and witnesses, the workload of the court concerned, and prevailing local conditions, namely, what are described as systemic delays, and that a realistic and practical approach, rather than a pedantic one, must inform this exercise. Importantly, this Court held that mere length of delay does not by itself establish a violation of the right, rather, an inordinately long delay may be taken as presumptive proof of prejudice, tri....
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....t further noted that the appellant before it had remained un-summoned for a period of nearly 35 years for no fault of his own, the sole explanation offered by the State being that he had shifted out of the jurisdiction upon the bifurcation of the State and could not thereafter be traced. The Court further observed that keeping a person in what it described as a state of "suspended animation" for 35 years was wholly incompatible with the fair, just and reasonable procedure that Article 21 contemplates, and that quick and timely justice is the very sine qua non of that constitutional guarantee. Holding that it would be unjust and inequitable, in the circumstances, to permit the prosecution to proceed any further, this Court quashed the proceedings against the appellant. 30. Now adverting to the facts of the present case, we find that this is not a case where the delay can be laid at the doorstep of the appellants, nor is it a case of mere passive lapse of time, rather, the record discloses a chronicle of persistent and unexplained inaction on the part of the respondent - complainant itself, spanning virtually the entire life of these proceedings. The complaint came to be institute....
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....was duly granted on 29.06.2012, extending the outer limit to 6-months. Despite this further indulgence, the respondent - complainant continued to remain absent right up to the filing of the present appeals. On this chronology, therefore, the question that the decisions discussed above require us to ask, namely, who is responsible for the delay, admits of only one answer - at every stage at which the proceedings could have been carried further, it was virtually the prosecution that failed to act with even ordinary diligence and failed to take further steps wherever needed. The respondent - complainant could have filed the application for issuance of a non-bailable warrant long back, well before 2012, since the summons had returned unserved on multiple occasions over the years, but chose not to do so, and for what special reasons, nobody knows. 33. Equally telling is the conduct of the respondent - complainant in the period following the High Court's time-bound directions. Given a clear window of one-month to conclude the trial, the respondent - complainant's response was to refuse to even collect the notices meant for service upon the accused. This compelled the trial court t....