TMI Blog1996 (7) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... he Code of Criminal Procedure, before the Chief Judicial Magistrate (Economic Offences), Jaipur, for grant of permission to the said Deputy Superinten dent of Police, CBI, to investigate Case No. RC 8/91/SIU(IX)/CBI/New Delhi, under section 25(1) read with section 56 of the Foreign Exchange (Regu lation) Act, 1973 (hereinafter referred to as "the FERA"), against respon dent No. 3, Shri Arvind Singh Mewar of Udaipur, Rajasthan. It was, inter alia , stated in the said application under section 155(2) of the Code of Criminal Procedure, that the aforesaid case was registered against Shri Arvind Singh Mewar on the allegation that Shri Mewar, an Indian national and a resident in India, had purchased three properties in the United Kingdom and got them repaired and renovated involving total expendi ture of Rs. 288 lakhs (782790 pounds) approximately. The said Arvind Singh had also incurred heavy expenditure on the education of his daughter in the U. K., journey expenditure to and from the United Kingdom and on the purchase of a Rolls Royce car, etc. All such expenditure was incurred by Shri Mewar without any permission from the Reserve Bank of India or the Government of India. Accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences alleged against Shri Arvind Singh Mewar by the Central Bureau of Investigation could not be given and the said application was dismissed. Being aggrieved by the said order of the learned Judicial Magistrate, the appellant made an application under section 482 of the Code of Criminal Procedure, being S. B. Crl. Misc. Petition No. 81 of 1992. The learned single Bench of the Rajasthan High Court (Jaipur Bench) by order dated July 6, 1993, dismissed the said S. B. Crl. Misc. Petition No. 81 of 1992 by observing that the reasonings given by the learned Chief Judicial Magistrate in the impugned order being justified, there was no occasion to interfere with the same. Mr. Jayaram, learned Additional Solicitor-General, appearing for the appellant, has submitted that the learned Chief Judicial Magistrate and the High Court failed to appreciate that section 5 of the FERA clearly empowers the Central Government to entrust the functions of director or other officer of Enforcement or any police officer or any other officer of the Central Government or of a State to exercise such powers and discharge such of the duties. Mr. Jayaram has further submitted that any officer who has been ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation is purely a "State object" and the same is within the inherent powers of a State Government. Therefore, the consent given by the Government of Rajasthan is within the inherent powers and jurisdiction of the State Government and such exercise of the power and jurisdiction are out of the scope of judicial interference. Mr. Jayaram has contended that the State Government has the prime responsibility over the crime, law and order situation within its territory. It has also been contended by Mr. Jayaram that in view of the consent given by the Government of Rajasthan, Department of Personnel and Administrative Reforms of the Central Government, vide Order No. 228/ 2/74-AVD/II, dated October 26, 1977, in exercise of the powers conferred under section 5 of the DSPE Act, notified the offences under the FERA for investigation by DSPE in various States including the State of Rajasthan. Mr. Jayaram has submitted that a consolidated Notification bearing No. 228/8/89-AVD/II, dated September 7, 1989, was issued under section 3 of the DSPE Act in respect of the offences for which consent by all the State Governments has been given for the purpose of investigation by the Central Bureau o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed has been prosecuted for the same offence by two authorities. Mr. Jayaram has submitted that it is not necessary to give specific authority to officers of the Central Bureau of Investigation individually to cause investigation relating to offences under the FERA. A general notification authorising the officers of the DSPE to investigate offences under the FERA must be held to be proper authorisation to all the members of the Central Bureau of Investigation to cause investigation. In support of this contention, Mr. jkyaram has referred to a decision of this court in Major E. G. Barsay v. State of Bombay, AIR 1961 SC 1762. Our attention has been drawn to the observation of this court, at page 1778, which is to the following effect. "It was contended before the High Court and it was repeated before us that the consent should have been given to every individual member of the Special Police Establishment and that a general consent would not be a good consent. We do not see any force in this argument. Under section 6 of the Delhi Special Police Establishment Act, no member of the said establishment can exercise powers and jurisdiction in any area in a State without the consent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offences under the FERA, the power conferred on the officers of the Enforcement under the FERA has not been taken, away. Mr. Jayaram has also contended that as the offence under the FERA can be investigated by the members of the Central Bureau of Investigation in view of the specific notification issued by the Central Government under the DSPE Act and as the jurisdiction of such officers of the Central Bureau of Investigation to cause investigation has been extended to the State of Rajasthan with due consent of Government of Rajasthan, there cannot be any impediment to the Officer of the Central Bureau of Investigation causing investigation relating to the offences alleged to have been committed by Shri Arvind Singh Mewar. In the aforesaid circumstances, the permission sought for by the Deputy Superintendent of Police of the Central Bureau of Investigation before the learned Chief Judicial Magistrate, Jaipur, should have been granted and the High Court erred in not setting aside the order of rejection of such permission sought by the Central Bureau of Investigation. Mr. Jayaram has submitted that despite very serious allegations of violations of the FERA by Shri Arvind Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orises the Officers of Enforcement to seize documents. Section 39 authorises the Director of Enforcement or any other Officer of Enforcement authorised by the Central Government to examine persons. Section 40 authorises the Gazetted Officer of Enforcement to summon persons to give evidence and produce documents. Section 41 authorises an Officer of Enforcement to take into custody documents. Section 42 authorises such officer to investigate drafts, cheques and other instruments. Section 43 authorises the Officer of Enforcement to inspect books of account and other documents. Other provisions of the Act provide various courses of action for implementation of the Act. The said contravention of section 25 is punishable under section 56. Section 62 of the Act makes offences under the FERA non-cognizable. Mr. Sen has submitted that the aforesaid scheme of the FERA clearly shows that the FERA is a special Act and is a self-contained code which is fully comprehensive specifying the various offences, prescribing the procedure for investigation or trial of such offence's and the punishment to be awarded for such offences. These provisions constitute special law and according to Mr. Sen, in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t provides under section 19A for the necessary investigation into the alleged suspected commission of an offence under the Act, by the Director of Enforcement. The provisions of the Code of Criminal Procedure, therefore, will not apply to such investigation by him." Mr. Sen has also referred to the decision of the Madras High Court in L E. Mohamed Hussain v. Deputy Superintendent of Custom, AIR 1970 Mad 464. It has been observed in the said decision (head note) : "When there is a prohibition against taking cognizance by the magistrate without a complaint by a concerned authority and when procedure is laid down under the Foreign Exchange Regulation Act which is a special Act, the power of the police to investigate can only be confined to that conferred on them under section 19J(2) of the Act. So far as offences in the special enactments are made cognizable, the police, under the general power, may investigate. In the Foreign Exchange Regulation Act, the only offence that is made cognizable is the contravention of sub-section (1) of section 4, and the police cannot investigate other offences except on the complaint of the officer concerned and with the order of the magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erve Bank of India, acquire or hold or transferor dispose of by sale, mortgage, lease, gift, settlement or otherwise any immovable property situate outside India. The offence under section 25 cannot be committed in India. Therefore, the powers by the notification issued under the DSPE Act purporting to authorise the officers of the DSPE to investigate in respect of the offences committed outside India under the FERA is beyond the provisions of the DSPE Act and such notification is ex facie illegal. Mr. Sen, has, therefore, submitted that the learned Chief Judicial Magistrate has rightly rejected the application made under section 155 of the Code of Criminal Procedure and the High Court has rightly rejected the application under section 482 of the Code of Criminal Procedure to challenge the said decision of the learned Chief Judicial Magistrate. He has, therefore, submitted that the appeal should be dismissed. On a careful consideration of the facts and circumstances of the case and submissions made by learned counsel for the parties, it appears to us that under section 3 of the DSPE Act, the Central Government may, by notification, specify the offences, which are to be investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that members of the DSPE are members of a special police force constituted under section 2 of the DSPE Act by the Central Government The question that arises for decision in this case is whether or not a member of the DSPE, which is also a member of the special police force constituted by the Central Government, even if authorised under section 3 and section 5 of the DSPE Act to investigate in respect of offences under the FERA in a particular State other than the Union Territory, with the consent of such State Government, can investigate the offences for violation of the FERA, more so, when the offence is alleged to have been committed outside Indian territory. It will be apposite at this stage to refer to the provisions of sections 3, 4 and 5 at the FERA: "3. Classes of officers of Enforcement There shall be the following classes of officers of Enforcement, namely : ( a )Directors of Enforcement ; ( b )Additional Directors of Enforcement ; ( c )Deputy Directors of Enforcement ; ( d )Assistant Directors of Enforcement; and ( e )Such other class of officers of Enforcement as may be appointed for the purposes of this Act. 4 Appointment and powers of officers o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or any other officer of Enforcement under the FERA as may be specified in the order to be issued by the Central Government. In our view, a combined reading of sections 3, 4 and 5 of the FERA makes it quite evident that primarily the officers of the Enforcement Directorate as mentioned in sections 3 and 4 have been empowered to exercise the powers and discharge the duties conferred or imposed on such officers of the Enforcement' Directorate under the FERA. As it may be expedient in some cases to confer powers and duties under the FERA to persons outside the Enforcement Directorate, the Legislature in its wisdom has given authority to the Central Government under section 5 of the FERA to authorise any officer of Customs or Central Excise Officer or a police officer or any officer of the Central Government or State Government to exercise such of the powers and discharge such of the duties of the director of Enforcement or any other officer of Enforcement under the FERA as may be specified subject to such conditions and limitations, as deemed fit by the Central Government. The member of the DSPE is a member of a police force constituted under the DSPE Act by the Central Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FERA. The FERA is a special legislation relating to regulation of foreign exchange. The FERA is also a Central legislation enacted at a later point of time than the DSPE Act which was enacted in 1946. In our view, sections 4and 5 of the Code of Criminal Procedure will not come in aid of the investigation of the offences under the FERA by a member of police force like, an officer of the DSPE in accordance with the Criminal Procedure Code. Sections 4 and 5 of the Code of Criminal Procedure, provide that in the absence of any provision regulating investigation inquiry or trial of non-IPC offences, i.e. , offences under any other law, the investigation, inquiry and trial shall be in accordance with the Code of Criminal Procedure. But the FERA is a self-contained code containing comprehensive provisions of investigation, inquiry and trial for the offences under that Act. The provisions unclear the FERA give power to the officers of the Directorate of Enforcement or other officers duly authorised by the Central Government under the FERA to search, confiscate, recover, arrest, record statements of witnesses, etc. The FERA contains provisions for trial of the offences under the FERA and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fences in the Union Territory, for the superintendence and administration of the said force and for extension to other of the powers and jurisdiction of the members of the said force in regard to the investigation of the said offences". Under sections 1 and 2 of the DSPE Act, the authority under the said Act is to investigate the offences committed in the Union Territory or in such other States where the jurisdiction of the member of the DSPE has been extended under section 5 of the Act The member of the DSPE, therefore, is not clothed with the authority to investigate offences committed outside India. Even under section 188 of the Code of Criminal Procedure, investigation of an offence committed outside Indian territory may be made only with the permission of the Central Government. Of course, if permission is granted, offences committed outside India can also be investigated. In the aforesaid facts, we do not find any reason to interfere with the impugned order and the appeal is, therefore, dismissed. Writ Petition (Civil) No. 33 of 1996 : This writ petition has been filed for quashing Order No. 228/2/74-AVD-II, dated October 26, 1977, issued by the Government of India, un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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