TMI Blog2023 (9) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... to apply. However, the same will continue to apply only for the purposes of prosecution of the offences which are saved by sub-section (3) of Section 49 of FEMA. That is how the complaint filed by the Enforcement Officer, duly authorised under clause (ii) of sub-section (2) of Section 61 of FEMA, will continue to be valid, inasmuch as by virtue of the legal fiction incorporated in sub-section (4) of Section 49, the prosecution will continue to be governed by the provisions of FERA as if the same had not been repealed. Therefore, during the sunset period, the authorisation of the Enforcement Officers to file the complaints continues to be valid for the limited purposes of sub-section (3) of Section 49 of FEMA. If the arguments of the appellants are accepted, the officer nominated under sub-clause (b) of clause (ii) of sub-section (2) of Section 61 of FERA will not be empowered to file complaints for the offences punishable under FERA even within the sunset period of two years. Such interpretation will prevent the Court from taking cognizance after the repeal of FERA on a complaint filed after the repeal of FERA by an officer authorised under sub-clause (b) of clause (ii) of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (e) of Section 3 of FERA, filed a complaint in the Court of the learned Chief Metropolitan Magistrate, Esplanade, Mumbai, against the appellants for various offences punishable under FERA and Section 120B of the Indian Penal Code. Cognizance was taken by the learned Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai, on the said complaint on 11th February 2002 by passing an order of issue of process. 2. The appellants made separate applications for discharge, but the learned Additional Chief Metropolitan Magistrate rejected the applications. A revision application preferred against the order of rejection, was also dismissed. Being aggrieved by the said order, an application under Section 482 of the Code of Criminal Procedure, 1973 (for short, Cr.PC ) was filed by the appellants which has been dismissed by the impugned judgment dated 3rd February 2010 by the learned Single Judge of the High Court of Bombay. SUBMISSIONS 3. Mr. Siddhartha Dave, the learned senior counsel appearing for the appellants has taken us through the relevant provisions of the FERA and the FEMA. As the High Court has not dealt with the merits of the complaint, even the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CONSIDERATION OF SUBMISSIONS 5. As can be seen from the statement of objects and reasons of FEMA, the legislature noticed that after 1993, there were significant developments, such as a substantial increase in foreign exchange reserves of our country, growth in foreign trade, rationalisation of tariffs, liberalisation of Indian investment abroad, increased access to external commercial borrowings by Indian corporates and participation of foreign investors in the stock market. Keeping in view the entirely changed environment, by repealing FERA, FEMA was brought on the Statute book with the objective of facilitating external trade and payments and promoting the orderly development and maintenance of the foreign exchange market in India. A perusal of the provisions of FEMA shows that there is a difference between its scheme and the scheme of FERA. There are elaborate provisions for penalty under Chapter IV of FEMA, and the penal provision is confined to sub-section (1C) of Section 13 of FEMA. Whereas Section 56 Criminal Appeal No.2151 of 2011 Page 4 of 17 and Section 57 of FERA were more stringent in the sense that they covered a very large category of violations. 6. The proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcement officers, were authorised to file a complaint in respect of the offences punishable under Sections 56 and 57 of FERA. 8. Now, we turn to Section 49 of FEMA under the heading Repeal and Saving . As noted earlier, sub-section (1) of Section 49 repealed the provisions of FERA. Sub-sections (3) to (5) deal with savings , which read thus: 49. Repeal and saving. (1) .. .. .. .. .. .. .. .. .. .. .. .. .. (2) .. .. .. .. .. .. .. .. .. .. .. .. .. (3) Notwithstanding anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under section 51 of the repealed Act after the expiry of a period of two years from the date of the commencement of this Act. (4) Subject to the provisions of sub-section (3) all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. (5) Notwithstanding such repeal, (a) anything done or any action taken or purported to have been done or taken including any rule, notification, inspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercised by the Central Government and all the Enforcement Officers were authorised to file complaints regarding the offences punishable under Sections 56 and 57 of FERA. Thus, there is no difficulty in holding that the first respondent Enforcement Officer, was authorised to file a complaint as provided in clause (ii) of sub- section (2) of Section 61 of FERA. What is material here is sub-section (4) of Section 49 of FEMA, which provides that subject to the provisions of sub-section (3), all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. Sub-section (3) of Section 49 saves the prosecution for the offences punishable under Sections 56 and 57, which have been committed prior to the repeal of FERA, provided the competent Court takes its cognizance within two years from the date of coming into force of FEMA. In view of sub-section (4) of Section 49, for the purposes of the prosecution of offences punishable under Sections 56 and 57 of FERA, by a legal fiction, the provisions of the repealed Act will continue to apply. However, the same will continue to apply only for the purposes of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firmation or declaration made or any licence, permission, authorisation or exemption granted or any document or instrument executed or any direction given or any proceedings taken or any confiscation adjudged or any penalty or fine imposed) under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act; (b) .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..; (c) .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..; (d) .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..: (3) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. The issue before this Court was about the power of the authorities under FERA to investigate and enforce liability and penalty incurred under FERA, 1947, after its repeal. In paragraphs 7 to 9 of the aforesaid decision, this Court held thus: 7. Shri Tulsi, the learned Additional Solicitor General placing reliance on O. Abdul Aziz v. Addl. Director of Enforcement [AIR 1983 Mad 59:(1982) 2 MLJ 359] and A.K.L. Labbai Thambi Maraicar v. Govt. of India, Enforcement Directorate [AIR 1983 Mad 102:(1982) 2 MLJ 59] contended that in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings remain unaffected and preserved as if the old Act continues to be operative. What remains to be done, after the Act came into force, is the quantification, if necessary, after due investigation and legal proceedings and if proved to impose the penalty, forfeiture or punishment. The Court takes cognizance of the offence and not the offender or the acts done. What the Court is to enquire into is whether the Act is incompatible with the repealed Act and whether it manifested any contrary intentions to the Repealed Act. Unless a different intention has been manifested in the Act, the Repealed Act would continue to be operative. Even in a case of bare repeal accompanied by a fresh legislation on the same subject, the provisions of the new Act will have to be looked into to find where and how far the new Act envisages a contrary intention affecting the operation of Section 6 of the General Clauses Act. Unless such contrary intention is manifested, liabilities, penalties, forfeiture or punishment under the Repealed Act will continue to exist and remain in force by operation of Section 6 of the General Clauses Act. 8. We have already seen that the Act did not evince any contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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