TMI Blog2009 (4) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... The case of the complainant Assistant Director, Enforcement Directorate (the Respondent herein) was that the petitioner wilfully CRL.M.C. 1979 of 2006 page 1 of 10 neglected and failed to appear on 5th April 1990, 29th November 1990 and 20th May 1991despite the summons issued to him under Section 40(4) of the Foreign Exchange Regulation Act, 1973 ( FERA‟) for those dates and had therefore committed an offence under Section 174 IPC. 3. The learned ACMM took cognizance of the offence under Section 174 IPC on the basis of the said complaint on 21st August 1991. Summons was issued for the appearance of the Petitioner on 14th February 1992. The petitioner sought exemption from appearance by filing an application on 29th May 1992. Subseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly there was also no question of converting the complaint filed for an offence under Section 174 IPC, punishable only with imprisonment of one month or fine (and therefore to be proceeded with by a summary trial under Section 260 CrPC) into a warrant case in terms of Section 259 CrPC. 5. The above submissions were resisted by the Respondent by pointing out that cognizance had already been taken of the offence of non-compliance with the summons issued under Section 40 FERA on 21 st August 1991 itself. Only the correct provision, i.e. Section 56 FERA, was not mentioned. It was argued that it was possible that at a later stage the Court may decide to invoke the correct provision of the law and such irregularity was a curable one in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PC in the order dated 16th March 2006 of the learned ACMM is an irregularity and not an illegality per se. It was also held CRL.M.C. 1979 of 2006 page 4 of 10 that since the Petitioner had joined the proceedings only in 2002 he could not be heard to contend that cognizance could not be taken under Section 56 FERA by virtue of Section 49(3) FEMA. The case was accordingly listed for pre-charge evidence on 17th April 2006. 7. Mr. Sidharth Luthra, learned Senior counsel appearing for the Petitioner contends that the complaint filed by the Respondent did not even mention Section 56 FERA and the entire complaint was about the alleged commission of the offence under Section 174 IPC. It is pointed out that after the decision of the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bar created by Section 49 (3) FEMA. In the considered view of this Court, this is where the learned ACMM has erred, since this assumption is not borne out by the record. 9. A reading of the complaint filed by the Respondent shows that it referred only to the offence under Section 174 IPC and makes no mention of Section 56 FERA. Consequently, cognizance was taken by the learned ACMM by the order dated 21st August 1991 only of that offence. This is from the order dated 21st August 1991 which reads as under: New complaint filed today. It is checked and registered. Present: Complainant with Shri S.P. Ahluwalia, Adv. Heard on the complaint. After going through the complaint and other documents placed on record I find that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible to prosecute a person CRL.M.C. 1979 of 2006 page 7 of 10 disobeying a summons issued under Section 40 FERA for the offence under Section 174 IPC or any other relevant provision under Chapter 10 IPC. It was held as under (SCC, p.438): As has been stated earlier, bearing in mind the purpose for which an officer of the Enforcement Directorate has been empowered to summon persons, either to give evidence or to produce a document and the provisions of the Act, making the persons summoned, bound to state the truth, and further the investigation in question having been made to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code, on a plain literal meaning being given to the language used in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by the impugned order. That changed the very complexion of the complaint because the offence under Section 174 IPC is triable only in a summary manner. Consequently, the learned ACMM erred in converting the summons case into a warrant case by invoking Section 259 CrPC. There was no occasion to do so because, for the reasons already explained, the complaint could not be converted into one for the offence punishable under Section 56 FERA. 13. The fact that the Petitioner could be arrested only on 15th March 2004 makes no difference to the legal position. Provisions in statutes that attract penal consequences admit of a strict interpretation. They do not permit courts administering the criminal law to resort to pragmatism when faced w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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