Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (5) TMI 882 - DELHI HIGH COURT

2016 (5) TMI 882 - DELHI HIGH COURT - TMI - Entitlement to officials of the petitioner summoned to be accompanied by the advocate(s) - case before the Competition Commission of India (CCI) under Section 26(1) of the Competition Act, 2002 wherein the petitioner was one of the opposite parties in the case related to a cartel/bid-rigging; - Held that:- Section 30 of the Advocates Act confers on an advocate a right to practice inter alia before any person legally authorized to take evidence. The DG, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cting what is said against the person. In my opinion the aforesaid is true of the role of the DG also and as a part of the duty to act fairly, DG ought to allow the officials of the petitioner summoned, if so desire, to be accompanied by Advocates. The fear of the DG of the Advocates is also not understandable. DG has full discretion to regulate its proceedings and ensure and control that the presence of the advocates does not delay its proceedings, as was the apprehension expressed. Sachs L.J., .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the fears of potential witnesses. Buckley L.J. in his opinion in the said judgment held that fair treatment required the Inspectors to give to persons being investigated the material against him and must put to him their proposed conclusions therefrom to give him fair opportunity to explain.

The objection of the respondent CCI/DG, to the officials of the petitioners summoned by the DG being accompanied with an advocate is thus overruled and it is declared that the officials of the pet .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

anufacturer of several rubber products including manufacturing of fabric re-enforced rubber conveyor belts and ancillary products; b. that on 2nd June, 2015 the petitioner received a notice dated 27th May, 2015 from the respondent No.2 Director General, Competition Commissioner of India (DG) in suo motu case no. 06/2013 in pursuance of the order of the Competition Commission of India (CCI) under Section 26(1) of the Competition Act, 2002 wherein the petitioner was one of the opposite parties in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

w cause why its acts and conduct should not be treated to be in contravention of Section 3 of the Competition Act; f. that though the DG supplied a copy of the unreasoned order of the CCI under Section 26(1) of the Act but neither the CCI nor the DG explained which particular conduct of the petitioner had contravened the provisions of the Competition Act; no other documents/evidence on the basis of which impugned inquiry had been initiated and notices issued were also disclosed. g. that the appl .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

before DG on 14th December, 2015 in respect of the inquiry / investigation. j. that the CCI/DG were thus conducting inquiry/investigation against the petitioner, asking the petitioner to join in the same, without giving access to the petitioner the evidence/documents based on which such inquiry/investigation was being conducted. k. that as per Section 36(1) of the Competition Act, the CCI, in discharge of its functions, is to be guided by principles of natural justice and the CCI/DG by failing t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the petitioner is entitled to inspection of records but which was being denied to the petitioner. o. that the petitioner cannot present its case to the CCI/DG in a fair and reasonable manner in the absence of documents/evidence. p. that once the DG furnishes its inspection report, CCI does not generally accept new evidence. Accordingly, reliefs of (i) seeking a direction to the CCI/DG to allow the petitioner to inspect of documents/evidence that were being relied upon while making allegations ag .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

titled Forech India Ltd. Vs. Competition Commission of India & Anr. disposed of vide order dated 2nd December, 2015 and sought disposal of this petition in the same manner. 4. The counsel for the respondents appearing on advance notice does not controvert and states that the petition be disposed of in the same manner as order dated 2nd December, 2015 supra save that it be clarified that the petitioner shall be entitled to only those documents which are relevant to and pertain to the petition .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

etition Act, 2002 as well as denial by the respondent No.2 Director General (DG), CCI of information in the form of inspection of documents and evidence against the petitioner sought by the petitioner from the DG, CCI. 2. On enquiry from the senior counsel for the petitioner, as to how the challenge to the order dated 26(1) which is more than two years old i.e. of 6th November, 2013, is maintainable now, the senior counsel for the petitioner states that the petitioner for the first time learnt o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ention to Regulation 20(2) of the Competition Commission of India (General) Regulation, 2009 which provides for the CCI, while directing the DG, CCI, to investigate, to submit a report within such time as may be specified by the CCI which ordinarily shall not exceed sixty days from the date of receipt of the directions. 4. The counsel for the respondents on oral instructions states that the period was extended from time to time but is unable to state, till what time it is valid now. It is stated .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t. A question arises that when the allegation of cartelisation is against several persons, why investigation against one should be initiated after a long gap of one and a half years. 7. It is also the contention of the senior counsel for the petitioner that the petitioner has also been denied the material if any against it and the right to cross-examine the witnesses, if any whose statement has been recorded and which is found to be against the petitioner. The senior counsel for the petitioner h .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ross-examination or not, unless the evidences, if any, recorded against such person are made available / known to him. 10. The counsel for the respondents states that even if the right of cross-examination is not given by the DG, CCI, the same can be sought before the CCI, after the DG, CCI has submitted the report. 11. The senior counsel for the petitioner in this regard has drawn attention to Regulation 43 which bars a party from producing any additional evidence before the CCI and which was n .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

de available before the statement of the representatives of the petitioner is recorded and for which purpose they have been summoned tomorrow i.e. 1st December, 2015 and on 3rd December, 2015. 14. The counsel for the respondents seeks time to obtain instructions. 15. List tomorrow i.e. 1st December, 2015 , on 1st December, 2015 - 1. The counsel for the respondents states that complete instructions have not been received as yet. 2. List on 2nd December, 2015. 3. In the meanwhile, the hearing list .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ts, save those with respect to which any party has claimed confidentiality, to the petitioner on the date when the statement of the official of the petitioner who has been summoned to appear is recorded and after confronting the said official with some of the documents with which it is deemed expedient to confront him. 3. It is further stated that the respondents will similarly give an opportunity to the petitioner to cross examine any witness whose oral statement pertaining to the petitioner ha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed on the application of any other person claiming confidentiality with respect to any document / material shall also be supplied to the petitioner. 6. In this view of the matter, the petition is disposed of keeping all contentions of both the parties open and giving liberty to the parties to apply if any difficulty arise. 4. When this petition was listed next on 11th December, 2015, the following order was passed: 1. This order is in continuation of the previous order dated 9th December, 2015. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

examine the witnesses whose evidence is intended to be used against the petitioner but would not be allowed to accompany the officials of the petitioner whose statement is to be recorded by the Director General (DG), Competition Commission of India (CCI). 2. Attention of the counsel for the respondents has been drawn to Section 30 of the Advocates Act, 1961 which confers a right of practice In the advocates before authorities competent to take evidence and DG, CCI under the provisions of the Com .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

being accompanied by the Advocate should be of the officials of the petitioner summoned by the respondents and cannot be of the petitioner but upon the counsel for the petitioner stating that he would implead the said officials also as petitioners, the counsel for the respondents has not pressed the said objection. 3. Arguments on the right of the said officials to be accompanied by advocates have been heard. 4. Order reserved. 5. Since the question is of some significance and since the responde .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

this stage, the counsel for the respondents states that the respondents at this stage are not insisting upon the personal appearance of the said officials; the respondents will give a questionnaire to be answered by the said officials and to which replies may be submitted by the said officials. 9. The senior counsel for petitioner, under instructions, is agreeable thereto. 6. The counsel for the petitioner in his written submissions has addressed the entire controversy but which, as recorded in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t the Competition Appellate Tribunal also in its order dated 11th December, 2015 in Appeal No.105/2012 titled Lafarge India Limited Vs. Competition Commission of India and other connected appeals has held that the procedure required to be followed by the DG as a prelude to the passing of an order under Section 27 of the Act is akin to the provisions to be followed by a Civil Court in deciding a civil suit except that the DG is not bound by the technicalities of the procedure contained in the Cod .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

be judicial proceedings under Section 193 and Section 228 of the Indian Penal Code, 1860; under the Customs Act also a gazetted officer is empowered to summon persons and to take evidence under the Act and to ask persons for production of documents. c. While interpreting the provisions of the aforesaid laws, the Courts have consistently held that a person who is called to give his / her statement by way of evidence cannot insist as a matter of right that he be accompanied by a lawyer; reliance i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, the question to self-incrimination would not arise; reliance in this regard is placed on Percy Rustomji Basta Vs. State of Maharashtra (1971) 1 SCC 847; Surjeet Singh Chabra Vs. Union of India (1997) 1 SCC 508; and K.T.M.S. Mohd. Vs. Union of India (1992) 3 SCC 178. f. The legislature can carve out a different procedure and the principles of natural justice can be moulded while carving out such procedures; reliance is placed on Swadeshi Cotton Mills Vs. Union of India (1981) 1 SCC 664; Union o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

that there is compliance of principles of natural justice. i. That CCI/DG is not barring advocates from practicing before it but a person being investigated has no right to be represented by an advocate during investigation when there is only a fact finding. 8. I have considered the rival contentions on the aspect of officials of the petitioner if summoned by DG to be accompanied by advocates. 9. I have, speaking for the Division Bench of this Court, in Google Inc. supra, with respect to the pro .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

espect of, (i) summoning and enforcing the attendance of any person and examining him on oath, (ii) requiring the discovery and production of documents, (iii) receiving evidence on affidavit, (iv) issuing commissions for the examination of witnesses and documents, and (v) requisitioning public records or documents from any public office. The DG is further empowered by Section 41(3) read with Sections 240 and 240A of the Companies Act, 1956 to keep in its custody any books and papers of the perso .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lakh for each day of failure, subject to a maximum of rupees one crore. (E) It would thus be seen that the powers of the DG during such investigation are far more sweeping and wider than the power of investigation conferred on the Police under the Code of Criminal Procedure. While the Police has no power to record evidence on oath, DG has been vested with such a power. Our experience of dealing with the matters under the Competition Act has shown that not only statement on oath of witnesses summ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

basis of an ex parte prima facie opinion. Though the Supreme Court in Para 116 of SAIL (supra) [(2010) 10 SCC 744] has held that inquiry by CCI commences after the DG, CCI has submitted report of investigation but, in the facts of that case, had no occasion to consider that the DG, CCI in the course of investigation has powers far wider than of the Police of investigation. Para 29 of the judgment also notices that the counsels had addressed arguments on issues not strictly arising for adjudicat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

urnishing no cause of action for a challenge thereto. (H) Before registration of an FIR the concerned Police Officer is not to embark upon an inquiry and is statutorily obliged (under Section 154(1) of the Cr.P.C.) to register a case and then, if has reason to suspect (within the meaning of Section 157(1) Cr.P.C.) to proceed with the investigation against such person. Per contra, as noticed above, investigation by the DG under the Competition Act commences not merely on the receipt of reference/ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to the person/enterprise being investigated into/against or that such person/enterprise, in the event of the report of investigation being against him/it, will have an opportunity to defend. (N) The Supreme Court, in Rohtas Industries (supra) 1969 (1) SCC 325 and the Calcutta High Court in New Central Jute Mills Co. Ltd. (supra) [AIR 1966 Calcutta 151], cited by the counsel for the respondent No. 2/complainant, also has held that an investigation against a public company tends to shake its credi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

6(1) of the Competition Act can be so drastic, in our view, availability of an opportunity during the course of proceedings before the CCI after the report of the DG, to defend itself cannot always be a ground to deny the remedy under Article 226 of the Constitution of India against the order of investigation. Though we do not intend to delve deep into it but are reminded of the principle that in cases of violation of fundamental rights, the argument of the same causing no prejudice is not avail .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

vance Redressal Committee of bank/financial institutions to oppose such a proposal has a right to be represented by an advocate in the said hearing. It was noticed that Section 30 of the Advocates Act 1961 as under- 30. Right of advocates to practise-Subject to provisions of this Act, every advocate whose name is entered in the [State roll] shall be entitled as of right to practise throughout the territories to which this Act extends,- (i) in all courts including the Supreme Court; (ii) before a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Bombay and for the reasons hereafter appearing hold that a proposed wilful defaulter, in the hearing before the GRC, would have a right of representation though an advocate. ………… (Q) That takes us to Section 30 of the Advocates Act supra conferring in the advocates a right to practice. Chief Justice of India Justice T.S. Thakur speaking for the High Court of Karnataka in M/s. Kothari Industrial Corporation Limited v. The Coffee Board MANU/KA/0414/1999 held that the ri .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

titution. (S) Supreme Court in Dr. D.C. Saxena, Contemnor v. Hon'ble the Chief Justice of India MANU/SC/0627/1996 : (1996) 5 SCC 216 held that advocacy touches and asserts the primary value of freedom of expression so dear in a democracy. It was further held that freedom of expression produces the benefit of the truth to emerge and assists stability by tempered articulation of grievances and plays its part in securing the protection of fundamental human rights. (X) Though the counsel for the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

(NN) A Division Bench of the High Court of Punjab and Haryana in Paramjit Kumar Saroya v. Union of India MANU/PH/0765/2014, in the context of the provision in the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 debarring representation through an advocate before the Tribunals constituted under the said Act, held that after the coming in to force of Section 30 of the Advocates Act, there cannot be an absolute bar to the assistance by legal practitioner to before a Tribunal. 12. S .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

investigation. 13. As far as the judgments cited by the counsel for the respondent are concerned, i. Poolpandi supra is of an era before Section 30 of the Advocates Act had come into force and hence would not be applicable hereto. Moreover, what was for consideration therein and adjudicated was, whether a person summoned during investigation under the Customs Act is entitled to protection of Article 20(3) of the Constitution of India and suffers mental torture by being called away from the comf .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

erned with the question, as in this petition i.e. whether a person has been called for giving statement before a person who is authorized to take evidence has a right to avail services of an advocate and whether an advocate under Section 30 has a right to practice before such person. ii. the judgment of the Division Bench of the Bombay high Court in Satyanarayan Nandlal Nuwal supra merely follows Poolpandi supra iii. Paradip Port Trust supra was concerned with the Industrial Dispute Act which co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

er the question aforesaid under consideration herein. v). Swadeshi Cotton Mills supra is on the applicability of the principle of audi alteram partem in emergent situations and under the provisions of Industries (Development and Registration) Act, 1951 and the extent of judicial review against such decisions. vi). Similarly, W.N. Chadha supra also is on the aspect of affording opportunity of being heard to an accused before issuing a letter rogatory at the stage of investigation. vii). Tulsiram .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

dgments requiring me to take a different view from that emerging from a combined reading of Google Inc. and Kingfisher Airlines Limited surpa. 14. Lord Denning M.R. in In Re: Pergamon Press Ltd. (1971) 1 Ch. 388, after noting that the Inspectors of an investigation under Section 165(b) of the (U.K.) Companies Act, 1948 were not a Court of law, their proceedings not judicial or even quasi-judicial for they decided and determined nothing and only reported, observed that the same would however not .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version