TMI Blog2018 (7) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... air construction principle as discussed supra would apply. This Court is unable to see any demon in the summons issued at this stage. There is no need to speculate. Neither a likelihood of bias nor malice can be seen through the summons issued. The appellant did not choose to challenge the summons earlier. She did rightly appear through the authorised agent. Issues have been raised only when the second respondent had asked her to appear in person. The Submissions on the CBI enquiry vis-a-vis the summons cannot be countenanced with the scope being totally different. Similarly, the scope and applicability of Sections 126 to 129 of the Indian Evidence Act, 1872, is not required to be gone into at this stage as otherwise we will be entering into a realm of speculation. We also find that the appellant is not entitled to invoke Section 160 of the Code of Criminal Procedure since the special enactment specifically deals with the power, authority and procedure for issuance of summons under Section 50 of the Act and therefore, there is no requirement to read the proviso to Section 160 of the Code of Criminal Procedure into Section 50 of the Act. The contention of the learned Senior Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation with Mr.Matang Sinh by co-ordinating with her lawyers. 5. It was followed by another Agreement signed by one Ms.Manoranjana Sinh on behalf of GNN Pvt. Ltd., and Mr.Sudipto Sen on behalf of M/s Bengal Media Pvt. Ltd., in which, clause 5.2 is apposite. 5.2. The company shall issue fresh shares to the Investor which is valued at ₹ 30 crore. The Promoters shall transfer a portion of the shares from their 5,74,000 Equity shares for which the Investor shall pay an additional ₹ 12.5 crores directly to the Promotors such that after the about to transactions the investor and the promotor shall hold 50% each in the total share capital of the company. The capital gains tax is any payable on such transfer will be borne by the Promotors in favour of the Investors shall take place anytime after 4.12.2010. 6. The appellant is stated to have been paid ₹ 1 crore by Mr.Sudipto Sen through his company. It was done after deducting TDS. The appellant disclosed the income in her return of income and accordingly paid the tax. 7. Mr.Sudipto Sen failed to honour his commitment to the depositors, a case was registered by the Central Bureau of Investigation. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ORATE AND OTHERS ((2002) Criminal Law Journal 819); (iii)M/S PUSMA INVESTMENT PVT. LTD., AND OTHERS VS. STATE OF MEGHALAYA AND OTHERS ((2010) Criminal Law Journal 56); (iv)FOZIYA SAMIR GODIL VS. UNION OF INDIA AND TWO OTHERS (Spl. Crl. Application (Direction) No.1725 of 2014 with Spl. Crl. Appln.No.1748 of 2014 dated 09.05.2014); (v)VIJAY MADANLAL CHOUDHARY VS. UNION OF INDIA AND ANR. (W.P.Nos.4336, 4341, 4344, 4347, 4350, 5089, 5091 and 5625 of 2015 dated 20.10.2015); (vi)ASHOK MUNILAL JAIN AND ANOTHER VS. ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT (Crl.Appeal No.566 of 2017 dated 22.03.2017); (vii) B.PREMANAND AND OTHERS V. MOHAN KOIKAL AND OTHERS ((2011) 4 Supreme Court Cases 266); (viii) SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS, WEST BENGAL VS. SATYEN BHOWMICK AND OTHERS ((1981) 2 Supreme Court Cases, 109); (ix)THE SUPERINTENDENT, OFFICE OF THE PUBLIC PROSECUTOR VS. THE REGISTRAR, TAMIL NADU INFORMATION COMMISSION AND ANOTHER (W.P.No.20574 of 2009 dated 05.01.2010); and (x)KOKKANDA B.POONDACHA AND OTHERS VS. K.D.GANAPATHI AND ANOTHER ((2011) 12 Supreme Court Cases 600). 10. Submissions of the Respondents: Shri G.Rajagop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii)real estate agent, as may be notified by the Central Government; (iv)dealer in precious metals, precious stones and other high value goods, as may be notified by the Central Government; (v)person engaged in safekeeping and administration of cash and liquid securities on behalf of other persons, as may be notified by the Central Government; or (vi)person carrying on such other activities as the Central Government may, by notification, so designate, from time-to-time; (sb) precious metal means gold, silver, platinum, palladium or rhodium or such other metal as may be notified by the Central Government; (sc) precious stone means diamond, emerald, ruby, sapphire or any such other stone as may be notified by the Central Government; (t) prescribed means prescribed by rules made under this Act; (u) proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property; (v) property means any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are examined or make statements, and produce such documents as may be required. (4) Every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860). 12.5. Section 50(2) gives sufficient ammunition to an authority to summon any person whose attendance is considered necessary. The word shall is to be interpreted to mean absolute power to seek attendance ofcourse to a subjective satisfaction. Such a power can be exercised requiring a person to give evidence or to produce during the course of investigation. An investigation cannot be given a restrictive meaning since it is included in the definition clause of proceedings . Section 50(2) also makes this position abundantly clear by suffixing the word investigation with the word any . 12.6. Such an exercise of an authority is also reiterated under sub-section 3 which mandates a person so summoned to attend in person. Here also the discretion given to the authority is extended either to call a person or permit to represent by an authorised agent. Therefore, if an authority is of the view that the assist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be examined by the police. However, a statement made by any person during the course of investigation shall not be signed and used in evidence except to the extent provided under the Code. 14. Comparison between the Code and Act 15 of 2003: 14.1. Both the Code and the Act travel on their respective channels. Under the Code investigation is done by the police over a crime. On the contrary, under Act 15 of 2003, an authority has got different roles to play, in tune with the objectives. While Section 50(2) of the Act 15 of 2003 speaks of an authorised agent, the same is missing under the Code. There is no proceedings under the Code as being dealt with under the Act 15 of 2003 by an authority. Merely because trappings of police power is given, an authority cannot be compared with the policemen under all circumstances and so is his office. 14.2. The Code and the Act are to be interpreted to sail together qua investigation. A person summoned has to say the truth before an authority in accordance with sub section (3) of Section 50. For giving a false evidence intentionally insulting an authority or interpreting the proceedings conducted by a authority, a person would be visite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... POLICY AND PROMOTION, MINISTRY OF COMMERCE AND INDUSTRY, NEW DELHI AND OTHERS (W.P.Nos.44126 and 44127 of 2016 dated 23.05.2018) as follows: 6.2. Judging a statute through literal to Hyden's Golden Rule has gone through a circle. What is being applied by the Courts today is on the reasonable, creative and Fair Construction Principle. A liberal interpretation is required more in a social, welfare legislation with the objective in mind. 6.3. LORD DENNING: A Judge should ask himself the question (how). If the makers of the Act had themselves come across this rule in the texture of it, how would they have straightened it out? He must do so as they would have done. A Judge must not alter the material on which (the Act) it is woven but he can and should iron out the creases. 6.4. CRAIES IN STATUTE LAW: ... It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed' .. that in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion also would apply by a combined reading of provisions, objects and reasons put together as a whole. 6.9. R.S.REKHCHAND MOHOTA SPINNING WEAVING MILLS LTD., VS. STATE OF MAHARASHTRA (1997) 6 Supreme Court Cases 12). 8.........The interpretation of the statute would apply to the interpretation of the entries subject to reservation that their application is of necessity conditioned by the subject-matter of the enactment itself. It should be remembered that the problem before us is to construe a word appearing in Entry 45 which is a head of legislative power. It cannot be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended to it. It is, therefore, clear that in construing an entry in a list conferring legislative powers, the widest possible construction, according to their ordinary meaning, must be put upon the words used therein. Reference to legislative practice may be admissible for cutting down the meaning of a word in order to reconcile two conflicting provisions in two legislative lists. The cardinal rule of interpretation, however ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the language of an enactment in the interest of any legal or constitutional theory. Constitutional adjudication is not strengthened by such an attempt but it must seek to declare the law but it must not try to give meaning on the theory of what the law should be, but it must so look upon a Constitution that it is a living and organic thing and must adapt itself to the changing situations and pattern in which it has to be interpreted. It has also to be borne in mind that where division of powers and jurisdiction in a federal Constitution is the scheme, it is desirable to read the Constitution in harmonious way. It is also necessary that in deciding whether any particular enactment is within the purview of one legislature or the other, it is the pith and substance of the legislation in question that has to be looked into. It is well settled that the various entries in the three lists of the Indian Constitution are not powers but fields of legislation. The power to legislate is given by Article 246 and other articles of the Constitution. The three lists of the Seventh Schedule to the Constitution are legislative heads of fields of legislation. These demarcate the area over which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve areas of legislative competence of the respective legislatures. There is neither implied restriction imposed on the legislature nor is any duty prescribed to exercise that legislative power in a particular manner. But the legislation must be subject to the limitations prescribed under the Constitution. 20. When the vires of an enactment is challenged, it is very difficult to ascertain the limits of the legislative power. Therefore, the controversy must be resolved as far as possible, in favour of the legislative body putting the most liberal construction upon the relevant legislative entry so that it may have the widest amplitude. The court is required to look at the substance of the legislation. It is an equally settled law that in order to determine whether a tax statute is within the competence of the legislature, it is necessary to determine the nature of the tax and whether the legislature had power to enact such a law. The primary guidance for this purpose is to be gathered from the charging section. It is the substance of the impost and not the form that determines the nature of the tax. 11. Thus, it is settled principle of interpretation that legislative entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also has to be seen on the provisions governing both enactments. There may be a case where General Act may have the substantive provision as against the special one. 7.4. In MACQUARIE BANK LIMITED VS. SHILPI CABLE TECHNOLOGIES LIMITED ((2018) 2 Supreme Court Cases 674), the Supreme Court has considered the principle governing interpretation through the following paragraphs. 27. Equally, Dr. Singhvi s argument that the Code leads to very drastic action being taken once an application for insolvency is filed and admitted and that, therefore, all conditions precedent must be strictly construed is also not in sync with the recent trend of authorities as has been noticed by a concurring judgment in Ms. Eera through Dr. Manjula Krippendorf v. State (Govt. of NCT of Delhi) Anr, Criminal Appeal Nos. 1217-1219 of 2017 decided on July 21, 2017. In this judgment, the correct interpretation of Section 2(1)(d) of the Protection of Children from Sexual Offences Act, 2012 arose. After referring to the celebrated Heydon s case, 76 E.R. 637 [1584] and to the judgments in which the golden rule of interpretation of statutes was set out, the concurring judgment of R.F. Nariman, J., afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own interpretation as he likes. This would be destructive of judicial discipline, and also the basic principle in a democracy that it is not for the Judge to legislate as that is the task of the elected representatives of the people. Even if the literal interpretation results in hardship or inconvenience, it has to be followed (see G.P. Singh's Principles of Statutory Interpretations, 9th Edn., pp. 45-49). Hence departure from the literal rule should only be done in very rare cases, and ordinarily there should be judicial restraint in this connection. 30. Regard being had to the modern trend of authorities referred to in the concurring judgment in Ms. Eera through Dr. Manjula Krippendorf (supra), we need not be afraid of each Judge having a free play to put forth his own interpretation as he likes. Any arbitrary interpretation, as opposed to fair interpretation, of a statute, keeping the object of the legislature in mind, would be outside the judicial ken. The task of a Judge, when he looks at the literal language of the statute as well as the object and purpose of the statute, is not to interpret the provision as he likes but is to interpret the provision keeping in mind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to offence under the Act, the Magistrate has no power to take cognizance. That power is exclusively with the Special Court and thus report under Section 157 of the Code will have to be sent to the Special Court though the section requires it to be sent to the Magistrate. It is clear that for the expression Magistrate in Section 157, so far as the Act is concerned, it is required to be read as Special Court and likewise in respect of other provisions of the Code. If the expression Special Court is read for the expression Magistrate , everything will fall in line. This harmonious construction of the provisions of the Act and the Code makes the Act work. That is what is required by principles of statutory interpretation. Section 9(1) of the Act provides that the Special Court shall in the trial of such cases follow the procedure prescribed by the Code for the trial of warrant cases before the Magistrate. The expression trial is not defined in the Act or the Code. For the purpose of the Act, it has a wider connotation and also includes in it the pre-trial stage as well. Section 9(2) makes the Special Court, a Court of Session by a fiction by providing that the Special Court shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd v. United States [137 L Ed 2d 917 : 520 US 651 (1997)] , Warden v. Marrero [41 L Ed 2d 383 : 417 US 653 (1974)] ). 45. More recently, in Binoy Viswam v. Union of India (2017) 7 SCC 59 at 132, this Court construed the Income Tax Act, 1961 and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 harmoniously in the following manner: 98. In view of the above, we are not impressed by the contention of the petitioners that the two enactments are contradictory with each other. A harmonious reading of the two enactments would clearly suggest that whereas enrolment of Aadhaar is voluntary when it comes to taking benefits of various welfare schemes even if it is presumed that requirement of Section 7 of the Aadhaar Act that it is necessary to provide Aadhaar number to avail the benefits of schemes and services, it is up to a person to avail those benefits or not. On the other hand, purpose behind enacting Section 139-AA of the Act is to check a menace of black money as well as money laundering and also to widen the income tax net so as to cover those persons who are evading the payment of tax. 48. In Central Bank of India v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g) of the Constitution to practice one s profession. Therefore, a conjoint reading of Section 30 of the Advocates Act and Sections 8 and 9 of the Code together with the Adjudicatory Authority Rules and Forms thereunder would yield the result that a notice sent on behalf of an operational creditor by a lawyer would be in order. 7.5. In KSL AND INDUSTRIES LIMITED VS. ARIHANT THREADS LIMITED AND OTHERS ((2015) 1 Supreme Court Cases 166), it is held as under. This Court in solidaire case approved the observations of the Special Court to the effect that if the legislature confers a non-obstante clause on a later enactment, it means that the legislature intends that the later enactment should prevail. Further, it is a settled rule of interpretation that if one construction leads to a conflict, whereas on another construction two Acts can be harmoniously construed, then the latter must be adopted. 8. PRESUMPTION: While holding that there is a presumption in favour of the legislation qua the scope of both the enactments on the same subject matter, it was accordingly held by the Supreme Court in KISHOREBHAI KHAMANCHAND GOYAL VS. STATE OF GUJARAT AND ANOTHER ((2003) 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does not more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The Court leans against implying a repeal, unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together. (See Craies on Statute Law, Seventh Edition, page 366, with reference to Re: Berrey [1936] Ch. 274 ). To determine whether a later statute repeals by implication an earlier, it is necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The areas of operation of the Act and the Establishments Act in question are different with wholly different aims and objects. They operate in their respective fields and there is no i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Bias may also occur by a combination of these two. When an authority, plays a role being predominant in nature, cannot thereafter take a different role leading to a positive or potential conflict with the earlier one. This mixture of two roles would create either likelihood of bias or reasonable apprehension of bias. The source of the potential bias has to be a personal interest for it to be potentially objectionable in law. 8. The Courts have evolved the principles governing bias i.e., real likelihood of bias test and reasonable suspicion test. For the real likelihood of bias test, the paramount consideration is from the point of view of a fair minded informed observer. Insofar as the reasonable suspicion test is concerned, the test is from the point of view of a reasonable common mind. Though the Courts have evolved these two principles, in effect there is little difference between the two. A fair minded man also has to be reasonable and vice versa. What is reasonable is a quality that has to be attributed to a fair minded informed person. Similarly, a reasonable member of the public has to exhibit fairness. After all the principles governing natural justice are ingrained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o legal malice at times but not in every case. To decide as to whether there exists a likelihood or reasonable suspicion of bias, the test shall not be unacceptably high considering the concept and proof of bias. 11. An apparent bias can be identified with the relative ease in pecuniary and personal as against official. Deciphering an official bias is an arduous job for a Court. That is the reason why the tests of likelihood or reasonable suspicion of bias is required to be used. 13. In State of Gujarat v. R.A. Mehta, (2013) 1 MLJ 362 (SC), while dealing with the doctrine of bias, the Apex Court held that reasonable suspicion that there is likelihood of bias affecting decision would be sufficient to invoke the doctrine of bias. Therefore, in effect the test of likelihood of bias or reasonable apprehension of bias are interchangeable in nature and consequently, the parameters required for such a test will also be construed to be the same. Investigator's Bias: 20. An investigator is the kingpin of criminal justice delivery system. (See Amitbhai Anilchandra Shah v. CBI, (2013) 6 Supreme Court Cases 348). 21. A bias attributed on the part of the investigato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngal State Electricity Board v. Dilip Kumar Ray, AIR 2007 SC 976). 26. Passing an order for an unauthorized purpose constitutes malice in law. (Vide Punjab State Electricity Board Ltd. v. Zora Singh Ors., (2005) 6 SCC 776; and Union of India Through Government of Pondicherry Anr. v. V. Ramakrishnan Ors., (2005) 8 SCC 394). 17.3.It is an admitted fact that initially the appellant was permitted to appear through the authorised agent. The impugned notice was issued on finding certain new facts and contradiction in the statements given, which could not be satisfactorily explained by the authorised agent. The appellant has been rendering a professional service by travelling extensively throughout the country. While doing so, the question of determination of sex did not stand in any way. However, for appearing before an authority, which is mandated by law, she seeks protective discrimination as a woman. A legal profession stands apart on its own. In discharge of a professional duty, there is no difference between a man and woman. The summons were issued to the appellant in her discharge and capacity as a professional and not otherwise. It is clear from reading of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is distinguishable on facts. 18.2. In M/S PUSMA INVESTMENT PVT. LTD., AND OTHERS VS. STATE OF MEGHALAYA AND OTHERS ((2010) Criminal Law Journal 56), the Gauhati High Court was interpreting Section 160 of the Code of Criminal Procedure. It was a case where a notice was issued by the police for involving in IPC offence. Hence, the said decision has got no application. 18.3. The Gujarat High Court in FOZIYA SAMIR GODIL VS. UNION OF INDIA AND TWO OTHERS (Spl. Crl. Application (Direction) No.1725 of 2014 with Spl. Crl. Appln. No.1748 of 2014 dated 09.05.2014) was in fact dealing with the very same issue. After going through the abovesaid judgment, we are of the view that inasmuch as there is no conflict between Section 52 of the Act and Section 160 of the Code, it is not mandatory in all cases a woman shall never be called whatever be her involvement and status. Thus, it is for the second respondent to exercise power in a given case either to call a person or an authorised agent. Since a definition of the word person would include a woman, it is certainly open to the authority to take a call either summon her physically or otherwise through an agent. 18.4. The decision rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
