TMI Blog2009 (4) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... uance of summons, is clearly without application of mind and cannot stand in law. In the light of the well settled principles noticed, there is no embargo from quashing the proceedings which are pending before the ld trial court. Bare perusal of the complaint, it has been found that the complaint has been filed without compliance of the provisions of Section 61 of the FERA, 1973. No further inquiry is necessary or required to be conducted for the purposes. The compliance is mandatory and goes to the root of the matter. There is a statutory prohibition to the filing of a complaint without such statutory compliance. The objection raised by the petitioner to the filing and maintainability of the prosecution against it, is squarely covered under the guideline 6 laid down by the Apex Court in State of Haryana Vs. Chaudhary Bhajanlal [ 1990 (11) TMI 386 - SUPREME COURT] and Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi Ors [ 1976 (4) TMI 213 - SUPREME COURT] . The respondents have urged at length that the petitioner must be required to undergo the trial and establish his objections as a defence to the prosecution. The present case is one where examination of a statutory prohi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Special Cell of the Delhi police alleging that the subscriber was misusing the telephone connection in violation of the provisions of the Indian Telegraph Act, 1885. The police raided the business premises of the company, arrested Sh. Sanjay Malviya, its managing director and Sh. Deepak Gupta, Technical Advisor and also seized all equipment attached with the telephone connection. A case bearing FIR No. 136/2000 was registered under section 420/120B of the Indian Penal Code read with Section 4/20 of the Indian Telegraph Act, 1885. 3. The allegations in the complaint were that one of the ISD and telephone lines was made into a permanent channel and thereafter by using sophisticated equipment, international calls were being distributed to Delhi and nearby areas illegally through the Public Safety Telephone Network (PSTN network for brevity). In the complaint allegations were also made by the MTNL that the channels/connection allotted to the company were found busy day and night which indicated that the ISD and lines were being misused. Transmission of data from the USA to the connnection through ISD and connection was compressed. Instead of 24 calls, only one call would s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 27th May, 2002 and submitted a detailed reply denying that he had committed any violation of FERA, 1973. Certain clarifications were also sought with regard to the allegations and violations alleged by the respondent no. 2 in their notice under reply. On 7th June, 2002, the petitioner claims to have read a newspaper report in the newspapers English Daily and Hindustan Times, stating that the respondent no. 2 has filed a criminal complaint against the petitioner and other accused persons for alleged violations of the provisions of FERA, 1973. 8. As per the available record, the respondent no. 2 filed criminal complaint no. 880/2001 dated 27th May, 2002 under section 56 of the FERA, 1973 read with sub-sections 3 and 4 of Section 49 of FEMA, 1999 before the court of Additional Chief Metropolitan Magistrate who took cognizance of the complaint vide an order dated 27th May, 2002 and summoned all accused persons including the petitioner for appearance on 20th August, 2002. It is submitted on behalf of the petitioner that on the inspection of the court record, it has been revealed that the respondent no. 2 illegally and arbitrarily did not place the communication dated 27th May, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. On the other hand, Mr. P.P. Malhotra, learned Additional Solicitor General appearing for the respondent has contended that the fact that the petitioner has annexed a copy of the opportunity notice with the petition, itself evidences that he was duly served and had even filed a reply to the same. The submission of the learned ASG is that the petitioner's grievance is of insufficiency of notice which is a matter of his defence. It is contended that the petitioner would have adequate opportunity to establish the same in the trial at the pre-charge stage. It is submitted that according to the respondent, this notice was served by affixation in the presence of panchas and the panchnama in this behalf, would be proved before the trial court. In support of these submissions, reliance is placed on the judicial pronouncements reported at (1984) 3 ECC 319 A.S.G. Jothimani v. Dy. Director of Enforcement (page 18) ; (2002) 3 SCC 269 (paras 2, 14.5) Medchl Chemicals Pharma (P) Ltd. vs. Biological E. Ltd.; (2006) 3 SCC 658 : 2006 (2) JCC 114 (para 29) Musaraf Hossain Khan vs. Bhagheeratha Engg. Ltd. Ors. ; 1999 (110) ELT 313 (para 11) Assistant Collector, Customs v. L.R. Malwani. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon a written complaint made by the Director of Enforcement, the Central Government or the Reserve Bank of India or by a person authorised by anyone of them to make a complaint. As per the proviso to clause 2 of sub- section 2 of section 61, in case of an alleged contravention which prohibits the doing of an act without permission, no complaint shall be made without giving an opportunity to such person to show that he had such permission. Inherent in this statutory requirement would be the opportunity to a person to show that there was no requirement of such permission. 16. In an unreported decision by the Bombay High Court in Crl.A.No. 39/1952 entitled State v. B. Albuquerque, it was held that the opportunity should be given by the Reserve Bank or the Central Government or a person authorised in that behalf and not by an investigating officer. 17. Having regard to the penal consequences of committing the contravention of FERA, 1973 noticed hereinabove which includes incarceration, there can be no manner of doubt that such an opportunity has to be a meaningful opportunity and not merely a notional compliance of the statutory provisions. The respondents do not dispute that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s Arthasastra - the rule of law has had this stamp of natural justice, which makes it social justice. We need not go into these depths for the present except to indicate that the roots of natural justice and its foliage are noble and not newfangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system. Law cannot be divorced from life and so it is that the life of the law is not logic but experience. If, by the experimental test, importing the right to be heard will paralyse the process, law will exclude it. It had been said that no army can be commanded by a debating society, but it is also true that the House of Commons did debate, during the days of debacle and disaster, agony and crisis of the Second World War, the life-and-death aspects of the supreme command by the then British Prime Minister to the distress of all our friends and to the delight of all our foes' - too historic to be lost on Jurisprudence. Law lives not in a world of abstractions but in a cosmos of concreteness and to give up s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not amount to proper notice. It was held that the requirement of natural justice are met only if opportunity to represent is given in view of the proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. 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 not at all is so well settled that it needs no elaboration. (Ref : 1875 (1) CHD Div. 426 : 1945 LJ CH 373 Tailor v. Tailor ; (1936) 63 IA 372 : AIR 1936 PC 253 Nazir Ahmed vs. King Emperor ; AIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reply of the petitioner. It is pointed out that the 26th May, 2002 was a Sunday and hence not even the working day of the respondent. The complaint was filed on Monday, the 27th May, 2002, the first working day thereafter. There is apparently force in the contention of learned counsel for the petitioner that the period of three days which did not include three working days, would certainly not be adequate for the petitioner to gather such material whereby it could justify actions and place the same before the respondents. Opportunity has to be adequate and meaningful opportunity whereby a person against whom the respondent is able to place such material as to support its plea of innocence on the ground that it had complied with statutory formalities or that no such formality applied. It has to be held, therefore, that there is no compliance of the statutory requirements in the instant case. 31. In the decision of the Madras High Court reported at (1984) 3 ECC 319 A.S.G. Jothimani v. Dy. Director of Enforcement relied upon by the learned Additional Solicitor General, it was held that if a show cause notice is issued before the adjudication proceedings commences, it would u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the filing of the complaint. The petitioner has admittedly also sent a reply thereto. In this view of the matter, in my view, nothing turns on not naming the panchas who were witness to the pasting of the notice in the list of witnesses. 34. This now brings us to the last but most important question in the matter. The complaint was filed before the learned ACMM who took cognizance of the offences under Section 56 of FERA, 1973 and directed issuance of summons to petitioner and other accused persons for the 20th August, 2002. Serious objection has been raised by the petitioner to the effect that the learned trial court has acted without jurisdiction in taking cognizance of the complaint and that notice has been ordered to issue without application of mind. 35. Mr. S.K. Sharma, learned counsel for the petitioner has placed reliance on several precedents reported at (1964) 1 SCR 63 Chandru Deo Singh vs. Prokash Chandra Bose and Anr.; (1976) 3 SCC 736 Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi Ors.; 1993 Supp.(1) SCC 499 Punjab National Bank Ors. vs. Surendra Prasad Sinha; (1988) 1 SCC 692 Madhavrao Jiwajirao Scindia Ors. v. Sambhajirao Chandrojirao Angre O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable. 39. The principles which govern exercise of inherent jurisdiction under section 482 of the Criminal Procedure Code are not very different from the exercise of writ jurisdiction by the High Court under Article 226 of the Constitution of India in quashing criminal proceedings. No hard and fast rule can be laid down for exercise of such powers which would be guided by the facts and circumstances of the case. In this behalf, this court laid down the applicable principles in the judgment reported at 2002 III AD (Delhi) 1101 Smt. Sangeeta Ors. v. The State Ors. thus :- 14. So far so good. But even so, basic position enunciated by the Apex Court remains intact and unaltered. As a matter of fact, it required to be appreciated that exercise of writ jurisdiction by the High Court was not a matter of arithmetical proposition. No hard and fast rule or any cut and dry formula could be laid for exercise of such a power which indeed was exercisable on se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised: xxx 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 41. In (2002) 3 SCC 269 Medchl Chemicals Pharma (P) Ltd. vs. Biological E. Ltd., the court laid down the following caution :- 2. Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather a rule and the case for quashing at the initial stage must have to be treated as rare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in. the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Sections 202 of the CrPC which culminates into an order under Sections 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside : (1) Where the allegations made in the complaint or the statements of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . vs. J.K. Marattuklam, the court reiterated the principles that jurisdiction under section 482 of the CrPC should be sparingly and cautiously exercised by the high court and only when the court upon consideration, comes to a conclusion that otherwise it would be a case of abuse of process of court, or that there will be a gross miscarriage of justice, the court invoke its inherent jurisdiction. The Apex Court also laid the parameters that the High Court was not entitled to look to the several documents purported to have been filed by the petitioner in several civil proceedings or to rely on some order/observations made therein. If it did so, it would be in excess of the jurisdiction conferred on the High Court under section 482 of the Code of Criminal Procedure. In view of the above discussion, there can be no manner of doubt that this court is adequately empowered to examine the grievance made by the petitioner that the criminal prosecution initiated against him is an abuse of the process of law and totally without jurisdiction at this stage itself. 46. The principles laid down in (1973) 3 SCC 753 : 1973 SCC (Crl.) 521 Nirmaljit Singh Hoon v. State of West Bengal are notewo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that there is no sufficient material on record to make out offence under Sections 420, 406, 120-B of the IPC against the petitioner and has consequently discharged the petitioner for the said offences. The petitioner has been arrayed for trial for commission of offence under Section 4 of the Indian Telegraph Act, 1885. The learned counsel has cited at length the findings of the trial court in this order which are to the following effect:- In order to attract the provision of Section 406 IPC following ingredients have to be satisfied:- (i) that there was an entrustment of the property with the accused or the accused was having any dominion over the property, (ii) that the persons entrusetd (a) dishonestly, misappropriated or converted that property for his own use, (b) dishonestly uses or disposed off that property or willfully suffers any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged (ii) of any legal contract made touching the discharge of such trust - (VIII (2001) SLT 439) S.C. In the facts and circumstances of the case, the accused persons cannot be said to have the dominion over the functioni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e wholly misconceived. There would be no warrant for requiring the petitioner to defend a prolonged trial, if the filing of the complaint itself is statutorily prohibited. Continuation of such proceedings against the petitioner would, therefore, be vexatious, useless, serving no purpose and defeating the ends of justice. 51. In (2001) VII SLT 439 S.W. Palantikar Ors. v. State of Bihar Anr., the Apex Court has held thus :- 15. In case of a complaint under Sectin 200 Cr.P.C. or IPC a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vaxatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words sufficient ground used under Section 203 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction. The court placed reliance on the pronouncement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of a case also quash the proceeding even though it may be at a preliminary stage. . 52. Learned Additional Solicitor General has also placed reliance on the pronouncement of the Apex Court reported at 1999 (110) ELT 313 (para 11) Assistant Collector, Customs v. L.R. Malwani in support of the submission that even if an accused person may be given the benefit of doubt in departmental adjudication by the respondents, prosecution can be validly launched against him for being involved in commission of offences. The prosecution in the instant case is not a challenge by the petitioner on such a ground. The petitioner has however placed reliance on the order of the learned Metropolitan Magistrate to contend that he stands discharged with regard to most of the allegations made by the respondents against him. 53. The petitioner has placed several other grounds of challenge in the written submissions which are being filed. However in the light of the view which I have taken, it is not necessary to go into the same. In view of the above discussion, this writ petition is allowed. It is directed that the proceedings arising out of complaint no. 880/1 dated 27th May, 2002 entitled E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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