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2014 (1) TMI 1462 - DELHI HIGH COURTViolation of the provisions of Section 3(3)(a)(b)(c) - Whether the Commission is required to give notice or hearing, to the person against whom an information is given or a reference is made, in terms of Section 19 of the Competition Act, 2002, before the Commission directs further investigation, in exercise of the powers conferred upon it by sub-section (7) of Section 26 of the Act - Held that:- investigation by the Director General, pursuant to the Commission forming an opinion that prima facie there exists a contravention of the provisions of the Act and directing investigation by the Director General, cannot be treated at par with the investigation by a police officer into a cognizable offence in exercise of the powers conferred upon him by the Code of Criminal Procedure, 1973. Section 156 of the Code of Criminal Procedure empowers any officer in charge of a police station to investigate any cognizable case, without the order of a Magistrate, wherever a cognizable offence is committed within the local area of jurisdiction. As regards non- cognizable offences, sub-section (2) of Section 155 of the Code of Criminal Procedure mandates that no police officer shall investigate a non-cognizable case, without the order of the Magistrate having power to try such case or commit the case for trial. There is no provision in the Code of Criminal Procedure for an accused to apply to the investigating officer to permit him to examine his witnesses. Under the scheme of the Code, a police officer investigating a criminal case cannot allow cross-examination of witness, during the course of investigation conducted by him. On the other hand, clause (4) of the Regulation 41 expressly permits the Director General to record evidence and the power conferred upon him includes the power to record evidence of the enterprise against whom the information is being investigated by him. Unlike the provisions of the Code of Criminal Procedure, clause (5) of Regulation 41 empowers the Director General to allow cross-examination of a witness by the opposite party during the course of investigation conducted by him. Therefore, the scheme of investigation by a police officer, in terms of the provisions contained in the Code of Criminal Procedure and investigation by the Director General in terms of the Competition Act, are altogether different. If a police officer, while carrying out investigation into a cognizable offence, receives information or evidence relating to Commission of yet another offence, whether that be cognizable or non-cognizable, he is competent to carry out investigation into the said offence as well, the reason being that investigation in a cognizable case can be carried out without the order of the Magistrate and as provided in sub-section (4) of Section 155, where the case relates to two or more offences, of which at least one is cognizable, the case shall be deemed to be a cognizable one, notwithstanding that the other offences are non- cognizable. The Director General, on the other hand, does not have any suo motu power of investigation and, therefore, cannot be treated at par with a police officer, investigating a cognizable case. Under Section 147 of Income-tax Act is given by the same authority which undertakes the scrutiny and assessment, whereas under the scheme of the Act, the opinion is framed by one authority, whereas the investigation is conducted by another authority, in terms of the directions of the first authority - report of the Director General, to the extent he has reported contravention of the provisions of Section 4 of the Act by the petitioner by misuse of its dominant position as a VSF manufacturer, shall not be subjected to the procedure prescribed in sub-section (8) of Section 26 nor shall the Commission be entitled to pass order on the said report, in terms of the provisions of Section 27 of the Act. The Commission, however, shall be entitled to treat the aforesaid part of the report of the Director General as an information in terms of Section 19 of the Act and proceed accordingly in terms of the provisions of the Act, if the Commission on consideration of the aforesaid part of the report of the Director General, is of the opinion that there exists a prima facie case of contravention of the provisions of Section 4 of the Act by the petitioner - Decided in favour of Petitioner.
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