{"id":244324,"date":"2008-01-25T00:00:00","date_gmt":"2008-01-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-k-sinha-chief-enforcement-vs-videocon-international-ltd-ors-on-25-january-2008"},"modified":"2017-08-07T02:24:51","modified_gmt":"2017-08-06T20:54:51","slug":"s-k-sinha-chief-enforcement-vs-videocon-international-ltd-ors-on-25-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-k-sinha-chief-enforcement-vs-videocon-international-ltd-ors-on-25-january-2008","title":{"rendered":"S.K. Sinha, Chief Enforcement … vs Videocon International Ltd. & Ors on 25 January, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S.K. Sinha, Chief Enforcement … vs Videocon International Ltd. & Ors on 25 January, 2008<\/div>\n
Author: C Thakker<\/div>\n
Bench: C.K. Thakker, P.P. Naolekar<\/div>\n
           CASE NO.:\nAppeal (crl.)  175 of 2007\n\nPETITIONER:\nS.K. SINHA, CHIEF ENFORCEMENT OFFICER\n\nRESPONDENT:\nVIDEOCON INTERNATIONAL LTD. & ORS.\n\nDATE OF JUDGMENT: 25\/01\/2008\n\nBENCH:\nC.K. THAKKER & P.P. NAOLEKAR\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nARISING OUT OF SPECIAL LEAVE PETITION (CRL) NO. 5718 OF 2006
\nC.K. THAKKER, J.\n<\/p>\n
1.\t\tLeave granted.\n<\/p>\n
2.\t\tIn the present appeal, we are called
\nupon to decide the correctness or otherwise of
\nthe proposition of law by the High Court of
\nJudicature at Bombay whether issuance of
\nprocess in a criminal case is one and the same
\nthing or can be equated with taking cognizance
\nby a Criminal Court? And if the period of
\ninitiation of criminal proceedings has elapsed
\nat the time of issue of process by a Court, the
\nproceedings should be quashed as barred by
\nlimitation?\n<\/p>\n
3.\t\tTo appreciate the controversy raised
\nin the appeal instituted by the Chief
\nEnforcement Officer, Enforcement Directorate,
\nGovernment of India (appellant herein), few
\nrelevant facts may be noted.\n<\/p>\n
4.\t\tRespondent No.1M\/s. Videocon
\nInternational Ltd. (Company for short) is a
\nPublic Limited Company incorporated under the
\nCompanies Act, 1956 having its business at
\nMumbai and Aurangabad in the State of
\nMaharashtra. On October 13, 1989, the Company
\nentered into an agreement with Radio Export
\n(Moscow) for the supply of colour tubes,
\nelectrolytic capacitors, transformers, etc.,
\nfor Rs.44,04,00,000\/-. The payment was made by
\nrespondent No.1 Company to Japanese and Korean
\nsuppliers. But before any payment could be
\nreceived by respondent No.1 from the USSR
\nCompany, there was political turmoil in the
\nUSSR and payment to foreign suppliers was
\ndisrupted. On January 5, 1993, Additional
\nDirector General, Directorate of Revenue
\nIntelligence, Mumbai addressed a letter to the
\nappellant alerting him about the activities of
\nthe Company in connection with the agreement to
\nsupply television sets to Radio Export, Moscow.
\nBased on the information forwarded by the
\nDirectorate of Revenue Intelligence, Bombay,
\nthe appellant addressed two letters to the
\nChief Manager of Indian Bank, Nariman Point,
\nBombay requesting the Bank to supply details of
\nthe export outstanding of the Company. Indian
\nBank supplied necessary information and
\nindicated that the export outstanding of the
\nCompany was Rs.16,60,00,000\/-. The Reserve Bank
\nof India turned down the request of the Company
\nfor reimbursement of differential amount
\nremaining unpaid on the ground that the exports
\nwere effected from Korea and Japan and not from
\nIndia and the Company was not entitled to
\nreimbursement. In pursuance of the summons
\nissued under Section 40 of the Foreign Exchange
\nRegulation Act, 1973 (hereinafter referred to
\nas FERA), Raj Kumar Dhoot, Director of the
\nCompany appeared before the Department on April
\n25, 1999 and made a statement that there was an
\nagreement between the Company and M\/s Radio
\nExport, Moscow for supply of two lakh
\ntelevision sets and other equipments for
\nRs.44,04,00,000\/-. The amount was received by
\nthe Company through State Bank of India,
\nOverseas Branch, Bombay. He further stated that
\nthe television sets had been procured from
\nKorea and Japan who had been paid equivalent to
\nRs.19,00,00,000\/- in foreign exchange. Export
\nbills raised from the sale to M\/s Radio Export,
\nMoscow were equivalent to Rs.16,00,00,000\/-.
\nWhereas the contract with the suppliers in
\nKorea and Japan stipulated payment in US
\nDollars, the contract with the USSR Company
\nrequired payment in Indian Rupees. Since the
\nvalue of Rupee against the US Dollar fell down,
\nthe Company had to pay more Rupees to their
\nforeign suppliers. On June 1, 2000, FERA was
\nreplaced by the Foreign Exchange Management
\nAct, 1999 (hereinafter referred to as FEMA).\n<\/p>\n
5.\t\tOn May 24, 2002, the appellant-
\ncomplainant in the capacity as Chief
\nEnforcement Officer, Government of India, filed
\nCriminal Complaint No. 1149\/S\/2002 against the
\nCompany alleging that the Company had received
\nan amount of Rs.44,04,00,000\/- through State
\nBank of India, Bombay but it failed to take
\nsteps to realize export proceeds amounting to
\nRs.16,60,00,000\/- within the stipulated period
\nof six months. It thereby contravened Section
\n18(2) and 18(3) read with Section 68(1),
\npunishable under Section 56(1)(ii) of FERA. On
\nthe same day, i.e. on May 24, 2002, after
\nhearing the learned counsel for the Department,
\nthe Chief Metropolitan Magistrate, Esplanade,
\nMumbai took cognizance of the offence and
\nissued summons to the accused. On February 3,
\n2003, the Chief Metropolitan Magistrate issued
\nprocess requiring the respondents to appear
\nbefore the Court and answer the charge under
\nFERA.\n<\/p>\n
6.\t\tIn October, 2004, the respondents
\nfiled a petition being Criminal Writ Petition
\nNo. 476 of 2005 in the High Court of Judicature
\nat Bombay by invoking Article 227 of the
\nConstitution as also Section 482 of the Code of
\nCriminal Procedure, 1973 (hereinafter referred
\nto as the Code) seeking quashing of criminal
\nproceedings initiated vide complaint dated May
\n24, 2002 on the ground that cognizance was
\ntaken by the Court after the period of
\nlimitation and the proceedings were, therefore,
\nliable to be quashed. The High Court, by the
\nimpugned order dated April 26, 2006, quashed
\nthe proceedings initiated against the
\nrespondents on the ground that cognizance could
\nbe said to have been taken when process was
\nissued and since process was issued in
\nFebruary, 2003, the proceedings were time-
\nbarred. The complaint was, therefore, quashed
\nby the High Court. The said order is challenged
\nby the appellant in the present appeal.\n<\/p>\n
7.\t\tNotice was issued by this Court on
\nSeptember 29, 2006. The respondents appeared.
\nCounter affidavit and rejoinder affidavit were
\nthen filed. The Registry was directed to place
\nthe matter for final hearing on a non-
\nmiscellaneous day and that is how the matter is
\nplaced before us.\n<\/p>\n
8.\t\tWe have heard the learned counsel for
\nthe parties.\n<\/p>\n
9.\t\tThe learned counsel for the appellant
\ncontended that the High Court was in clear
\nerror in equating taking cognizance of an
\noffence with issuance of process and in holding
\nthat the cognizance was taken after the period
\nof limitation and hence the proceedings were
\ntime-barred and liable to be quashed. It was
\nsubmitted that FEMA came into force from June
\n1, 2000 and under sub-section (3) of Section 49
\nof FEMA, cognizance of an offence under FERA
\ncould have been taken within a period of two
\nyears from the date of commencement of the new
\nAct. It was submitted that cognizance was taken
\nby the Chief Metropolitan Magistrate, Mumbai on
\nMay 24, 2002, i.e. the day when complaint was
\nfiled which was well within the period of
\nlimitation provided by Section 49(3) of FEMA
\nand as such the Criminal Court was within its
\npower in issuing process and in proceeding with
\nthe matter and the High Court was not justified
\nin quashing the proceedings on the ground that
\ncognizance was taken by the Court on February
\n3, 2003 when process was issued by the Chief
\nMetropolitan Magistrate, Mumbai. It was
\nalternatively submitted by the learned counsel
\nthat the relevant date for counting the period
\nof limitation is not the date of taking
\ncognizance or issuance of process by the Court
\nbut the date of filing complaint. It was stated
\nthat the point has been concluded by various
\ndecisions of this Court. Since the complaint
\nwas filed on May 24, 2002, which was within the
\nperiod of limitation, the High Court was wrong
\nin treating the criminal complaint as barred by
\nlimitation and in quashing it. The order passed
\nby the High Court, thus, deserves to be set
\naside by directing the Chief Metropolitan
\nMagistrate, Mumbai to proceed with the case and
\ndecide it in accordance with law.\n<\/p>\n
10.\t\tThe learned counsel for the
\nrespondents, on the other hand, supported the
\norder passed by the High Court. It was
\nsubmitted that the High Court was wholly right
\nin quashing the proceedings. Admittedly,
\nprocess was issued in February, 2003 while
\nunder Section 49(3) of FEMA, proceedings under
\nthe old Act (FERA) could not have been
\ninitiated after the expiry of two years from
\nthe commencement of the new Act (FEMA). FEMA
\ncame into force on June 1, 2000 and hence
\ncognizance of an offence under FERA could have
\nbeen taken under FEMA latest by June 1, 2002.
\nIssuance of process in February, 2003,
\ntherefore, was clearly time-barred and the High
\nCourt was right in quashing the proceedings. It
\nwas also submitted that the appellant was not
\nright in submitting that the relevant date for
\ncomputing the period of limitation is date of
\nfiling of complaint. The material date is the
\ndate of taking cognizance by a competent
\nCriminal Court. Sub-section (3) of Section 49
\nof FEMA is a special provision, which must be
\ngiven effect to and even on that ground, the
\ncomplaint was barred by time. Finally, it was
\nsubmitted that though the High Court had not
\nconsidered the merits of the matter, the
\nprovisions of FERA had no application to the
\nfacts of the case as it cannot be said that the
\naccused had committed any offence under FERA.
\nConsidering the said fact also, this Court may
\nnot interfere with the order passed by the High
\nCourt in exercise of discretionary jurisdiction
\nunder Article 136 of the Constitution. It was,
\ntherefore, submitted that the appeal may be
\ndismissed.\n<\/p>\n
11.\t\tHaving heard learned counsel for the
\nparties and having perused the relevant
\nprovisions of law as also various judicial
\npronouncements, we are of the view that the
\nHigh Court was in error in equating issuance of
\nprocess with taking cognizance by a Criminal
\nCourt and in quashing the proceedings treating
\nthem as time-barred.\n<\/p>\n
12.\t\tThe expression cognizance has not
\nbeen defined in the Code. But the word
\n(cognizance) is of indefinite import. It has no
\nesoteric or mystic significance in criminal
\nlaw. It merely meansbecome aware of and when
\nused with reference to a Court or a Judge, it
\nconnotes to take notice ofjudicially. It
\nindicates the point when a Court or a
\nMagistrate takes judicial notice of an offence
\nwith a view to initiating proceedings in
\nrespect of such offence said to have been
\ncommitted by someone. Taking cognizance does
\nnot involve any formal action of any kind. It
\noccurs as soon as a Magistrate applies his mind
\nto the suspected commission of an offence.
\nCognizance is taken prior to commencement of
\ncriminal proceedings. Taking of cognizance is
\nthus a sine qua non or condition precedent for
\nholding a valid trial. Cognizance is taken of
\nan offence and not of an offender. Whether or
\nnot a Magistrate has taken cognizance of an
\noffence depends on the facts and circumstances
\nof each case and no rule of universal
\napplication can be laid down as to when a
\nMagistrate can be said to have taken
\ncognizance. Chapter XIV (Sections 190-199) of
\nthe Code deals with Conditions requisite for
\ninitiation of proceedings. Section 190
\nempowers a Magistrate to take cognizance of an
\noffence in certain circumstances. Sub-section
\n(1) thereof is material and may be quoted in
\nextenso.\n<\/p>\n
1) Subject to the provisions of this
\nChapter, any Magistrate of the first
\nclass, and any Magistrate of the
\nsecond class specially empowered in
\nthis behalf under sub-section (2), may
\ntake cognizance of any offence<\/p>\n
(a) upon receiving a complaint of
\nfacts which constitute such offence;\n<\/p>\n
(b) upon a police report of such
\nfacts;\n<\/p>\n
(c) upon information received from any
\nperson other than a police officer, or
\nupon his own knowledge, that such
\noffence has been committed.\n<\/p>\n
13.\t\tChapter XV (Sections 200-203) relates
\nto Complaints to Magistrates and covers cases
\nbefore actual commencement of proceedings in a
\nCourt or before a Magistrate. Section 200 of
\nthe Code requires a Magistrate taking
\ncognizance of an offence to examine the
\ncomplainant and his witnesses on oath. Section
\n202, however, enacts that a Magistrate is not
\nbound to issue process against the accused as a
\nmatter of course. It enables him before the
\nissue of process either to inquire into the
\ncase himself or direct an investigation to be
\nmade by a Police Officer or by such other
\nperson as he thinks fit for the purpose of
\ndeciding whether there is sufficient ground for
\nproceeding further. The underlying object of
\nthe inquiry under Section 202 is to ascertain
\nwhether there is prima facie case against the
\naccused. It thus allows a Magistrate to form an
\nopinion whether the process should or should
\nnot be issued. The scope of inquiry under
\nSection 202 is, no doubt, extremely limited. At
\nthat stage, what a Magistrate is called upon to
\nsee is whether there is sufficient ground for
\nproceeding with the matter and not whether
\nthere is sufficient ground for conviction of
\nthe accused.\n<\/p>\n
14.\t\tThen comes Chapter XVI (Commencement
\nof proceedings before Magistrates). This
\nChapter will apply only after cognizance of an
\noffence has been taken by a Magistrate under
\nChapter XIV. Section 204, whereunder process
\ncan be issued, is another material provision
\nwhich reads as under:\n<\/p>\n
204.Issue of process.- (1) If in the
\nopinion of a Magistrate taking
\ncognizance of an offence there is
\nsufficient ground for proceeding, and
\nthe case appears to be <\/p>\n
(a) a summons-case, he shall issue his
\nsummons for the attendance of the
\naccused, or<\/p>\n
(b) a warrant-case, he may issue a
\nwarrant, or, if he thinks fit, a
\nsummons, for causing the accused to be
\nbrought or to appear at a certain time
\nbefore such Magistrate or (if he has
\nno jurisdiction himself) some other
\nMagistrate having jurisdiction.\n<\/p>\n
(2) No summons or warrant shall be
\nissued against the accused under sub-
\nsection (1) until a list of the
\nprosecution witnesses has been filed.\n<\/p>\n
(3) In a proceeding instituted upon a
\ncomplaint made in writing, every
\nsummons or warrant issued under sub-
\nsection (1) shall be accompanied by a
\ncopy of such complaint.\n<\/p>\n
(4) When by any law for the time being
\nin force any process-fees or other
\nfees are payable, no process shall be
\nissued until the fees are paid and, if
\nsuch fees are not paid within a
\nreasonable time, the Magistrate may
\ndismiss the complaint.\n<\/p>\n
(5) Nothing in this section shall be
\ndeemed to affect the provisions of
\nsection 87.\n<\/p>\n
15.\t\tFrom the above scheme of the Code, in
\nour judgment, it is clear that Initiation of
\nProceedings, dealt with in Chapter XIV, is
\ndifferent from Commencement of Proceedings
\ncovered by Chapter XVI. For commencement of
\nproceedings, there must be initiation of
\nproceedings. In other words, initiation of
\nproceedings must precede commencement of
\nproceedings. Without initiation of proceedings
\nunder Chapter XIV, there cannot be commencement
\nof proceedings before a Magistrate under
\nChapter XVI. The High Court, in our considered
\nview, was not right in equating initiation of
\nproceedings under Chapter XIV with commencement
\nof proceedings under Chapter XVI.\n<\/p>\n
16.\t\tLet us now consider the question in
\nthe light of judicial pronouncements on the
\npoint.\n<\/p>\n
17.\t\tIn Superintendent & Remembrancer of
\nLegal Affairs Vs. Abani Kumar Banerjee, AIR
\n1950 Calcutta 437, the High Court of Calcutta
\nhad an occasion to consider the ambit and scope
\nof the phrase taking cognizance under Section
\n190 of the Code of Criminal Procedure, 1898
\nwhich was in pari materia to Section 190 of the
\npresent Code of 1973. Referring to various
\ndecisions, Das Gupta, J. (as His Lordship then
\nwas) stated:\n<\/p>\n
What is taking cognizance has not
\nbeen defined in the Criminal Procedure
\nCode, and I have no desire now to
\nattempt to define it. It seems to me
\nclear, however, that before it can be
\nsaid that any Magistrate has taken
\ncognizance of any offence under
\nSection 190(1)(a), Criminal P. C., he
\nmust not only have applied his mind to
\nthe contents of the petition, but he
\nmust have done so for the purpose of
\nproceeding in a particular way as
\nindicated in the subsequent provisions
\nof this Chapter,-proceeding under
\nSection 200, and thereafter sending it
\nfor enquiry and report under Section\n<\/p>\n
202. When the Magistrate applies his
\nmind not for the purpose of proceeding
\nunder the subsequent sections of this
\nChapter, but for taking action of some
\nother kind, e.g., ordering
\ninvestigation under Section 156(3), or
\nissuing a search warrant for the
\npurpose of the investigation, he
\ncannot be said to have taken
\ncognizance of the offence.\n<\/p>\n
18.\t\tR.R. Chari v. State of Uttar Pradesh,<\/a>
\n1951 SCR 312 was probably the first leading
\ndecision of this Court on the point. There, the
\npolice, having suspected the appellant-accused
\nto be guilty of offences punishable under
\nSections 161 and 165 of the Indian Penal Code
\n(IPC) as also under the Prevention of
\nCorruption Act, 1947, applied to the District
\nMagistrate, Kanpur to issue warrant of arrest
\non October 22, 1947. Warrant was issued on the
\nnext day and the accused was arrested on
\nOctober 27, 1947. On March 25, 1949, the
\naccused was produced before the Magistrate to
\nanswer the charge-sheet submitted by the
\nprosecution. According to the accused, on
\nOctober 22, 1947, when warrant for his arrest
\nwas issued by the Magistrate, the Magistrate
\nwas said to have taken cognizance of offence
\nand since no sanction of the Government had
\nbeen obtained before that date, initiation of
\nproceedings against him was unlawful. The
\nquestion before the Court was as to when
\ncognizance of the offence could be said to have
\nbeen taken by the Magistrate under Section 190
\nof the Code. Considering the circumstances
\nunder which cognizance of offence under sub-
\nsection (1) of Section 190 of the Code can be
\ntaken by a Magistrate and referring to Abani
\nKumar Banerjee, the Court, speaking through
\nKania, C.J. stated:\n<\/p>\n
It is clear from the wording of the
\nsection that the initiation of the
\nproceedings against a person commences
\non the cognizance of the offence by
\nthe Magistrate under one of the three
\ncontingencies mentioned in the
\nsection. The first contingency
\nevidently is in respect of non-\n<\/p>\n
cognizable offences as defined in the
\nCriminal Procedure Code on the
\ncomplaint of an aggrieved person. The
\nsecond is on a police report, which
\nevidently is the case of a cognizable
\noffence when the police have completed
\ntheir investigation and come to the
\nMagistrate for the issue of a process.
\nThe third is when the Magistrate
\nhimself takes notice of an offence and
\nissues the process. It is important to
\nremember that in respect of any
\ncognizable offence, the police, at the
\ninitial stage when they are
\ninvestigating the matter, can arrest a
\nperson without obtaining an order from
\nthe Magistrate. Under section 167(b)
\nof the Criminal Procedure Code the
\npolice have of course to put up the
\nperson so arrested before a Magistrate
\nwithin 24 hours and obtain an order of
\nremand to police custody for the
\npurpose of further investigation, if
\nthey so desire. But they have the
\npower to arrest a person for the
\npurpose of investigation without
\napproaching the Magistrate first.
\nTherefore in cases of cognizable
\noffence before proceedings are
\ninitiated and while the matter is
\nunder investigation by the police the
\nsuspected person is liable to be
\narrested by the police without an
\norder by the Magistrate.\n<\/p>\n
19.\t\tApproving the observations of Das
\nGupta, J. in Abani Kumar Banerjee, this Court
\nheld that it was on March 25, 1949 when the
\nMagistrate issued a notice under Section 190 of
\nthe Code against the accused that he took
\ncognizance of the offence. Since before that
\nday, sanction had been granted by the
\nGovernment, the proceedings could not be said
\nto have been initiated without authority of
\nlaw.\n<\/p>\n
20.\t\tAgain in Narayandas Bhagwandas
\nMadhavdas v. State of West Bengal,<\/a> (1960) 1 SCR
\n93, this Court observed that when cognizance is
\ntaken of an offence depends upon the facts and
\ncircumstances of each case and it is impossible
\nto attempt to define what is meant by taking
\ncognizance. Issuance of a search warrant for
\nthe purpose of an investigation or a warrant of
\narrest of accused cannot by itself be regarded
\nas an act of taking cognizance of an offence.
\nIt is only when a Magistrate applies his mind
\nfor proceeding under Section 200 and subsequent
\nsections of Chapter XV or under Section 204 of
\nChapter XVI of the Code that it can be
\npositively stated that he had applied his mind
\nand thereby had taken cognizance of an offence
\n[see also Ajit Kumar Palit v. State of W.B. &
\nAnr., (1963) Supp (1) SCR 953; Hareram Satpathy
\nv. Tikaram Agarwala & Anr.,<\/a> (1978) 4 SCC 58].\n<\/p>\n
21.\t\tIn Gopal Das Sindhi & Ors. v. State of
\nAssam & Anr., AIR 1961 SC 986, referring to
\nearlier judgments, this Court said:
\nWe cannot read the provisions of
\nSection 190 to mean that once a
\ncomplaint is filed, a Magistrate is
\nbound to take cognizance if the facts
\nstated in the complaint disclose the
\ncommission of any offence. We are
\nunable to construe the word may in
\nSection 190 to mean must. The reason
\nis obvious. A complaint disclosing
\ncognizable offences may well justify a
\nMagistrate in sending the complaint
\nunder Section 156(3) to the police for
\ninvestigation. There is no reason why
\nthe time of the Magistrate should be
\nwasted when primarily the duty to
\ninvestigate in cases involving
\ncognizable offences is with the
\npolice. On the other hand, there may
\nbe occasions when the Magistrate may
\nexercise his discretion and take
\ncognizance of a cognizable offence. If
\nhe does so then he would have to
\nproceed in the manner provided by
\nChapter XVI of the Code.\n<\/p>\n
22.\t\tIn Nirmaljit Singh Hoon v. State of
\nWest Bengal & Anr.,<\/a> (1973) 3 SCC 753, the Court
\nstated that it is well settled that before a
\nMagistrate can be said to have taken cognizance
\nof an offence under Section 190(1) (a) of the
\nCode, he must have not only applied his mind to
\nthe contents of the complaint presented before
\nhim, but must have done so for the purpose of
\nproceeding under Section 200 and the provisions
\nfollowing that section. Where, however, he
\napplies his mind only for ordering an
\ninvestigation under Section 156(3) or issues a
\nwarrant for arrest of accused, he cannot be
\nsaid to have taken cognizance of the offence.\n<\/p>\n
23.\t\tIn Darshan Singh Ram Kishan v. State
\nof Maharashtra,<\/a> (1972) 1 SCR 571, speaking for
\nthe Court, Shelat, J. stated that under Section
\n190 of the Code, a Magistrate may take
\ncognizance of an offence either (a) upon
\nreceiving a complaint, or (b) upon a police
\nreport, or (c) upon information received from a
\nperson other than a police officer or even upon
\nhis own information or suspicion that such an
\noffence has been committed. As has often been
\nsaid, taking cognizance does not involve any
\nformal action or indeed action of any kind. It
\noccurs as soon as a Magistrate applies his mind
\nto the suspected commission of an offence.
\nCognizance, thus, takes place at a point when a
\nMagistrate first takes judicial notice of an
\noffence.\n<\/p>\n
24.\t\tIn Devarapalli Lakshminarayana Reddy &
\nOrs. v. V. Narayana Reddy & Ors.,<\/a> (1976) 3 SCC
\n252, this Court said:\n<\/p>\n
It is well settled that when a
\nMagistrate receives a complaint, he is
\nnot bound to take cognizance if the
\nfacts alleged in the complaint,
\ndisclose the commission of an offence.
\nThis is clear from the use of the
\nwords “may take cognizance” which in
\nthe context in which they occur cannot
\nbe equated with must take cognizance”.
\nThe word “may” gives a discretion to
\nthe Magistrate in the matter. If on a
\nreading of the complaint he finds that
\nthe allegations therein disclose a
\ncognizable offence and the forwarding
\nof the complaint to the police for
\ninvestigation under Section 156(3)
\nwill be conducive to justice and save
\nthe valuable time of the Magistrate
\nfrom, being wasted in enquiring into a
\nmatter which was primarily the duty of
\nthe police to investigate, he will be
\njustified in adopting that course as
\nan alternative to taking cognizance of
\nthe offence, himself.\n<\/p>\n
This raises the incidental question :
\nWhat is meant by “taking cognizance of
\nan offence” by a Magistrate within the
\ncontemplation of Section 190?. This
\nexpression has not been defined in the
\nCode. But from the scheme of the Code,
\nthe content and marginal heading of
\nSection 190 and the caption of Chapter
\nXIV under which Sections 190 to 199
\noccur, it is clear that a case can be
\nsaid to be instituted in a Court only
\nwhen the Court takes cognizance of the
\noffence alleged therein. The ways in
\nwhich such cognizance can be taken are
\nset out in Clauses (a), (b) and (c) of
\nSection 190(1). Whether the Magistrate
\nhas or has not taken cognizance of the
\noffence will depend on the
\ncircumstances of the particular case
\nincluding the mode in which the case
\nis sought to be instituted and the
\nnature of the preliminary action, if
\nany, taken by the Magistrate. Broadly
\nspeaking, when on receiving a
\ncomplaint, the Magistrate applies his
\nmind for the purposes of proceeding
\nunder Section 200 and the succeeding
\nsections in Chapter XV of the Code of
\n1973, he is said to have taken
\ncognizance of the offence within the
\nmeaning of Section 190(1)(a). If,
\ninstead of proceeding under Chapter
\nXV, he has in the judicial exercise of
\nhis discretion, taken action of
\nsome other kind, such as issuing a
\nsearch warrant for the purpose
\nof investigation, or ordering
\ninvestigation by the police under
\nSection 156(3), he cannot be said to
\nhave taken cognizance of any offence.
\n[see also M.L. Sethi v. R.P. Kapur &
\nAnr.,<\/a> (1967) 1 SCR 520].\n<\/p>\n
25.\t\tIn the case on hand, it is amply clear
\nthat cognizance of the offence was taken by the
\nChief Metropolitan Magistrate, Mumbai on May
\n24, 2002, i.e., the day on which the complaint
\nwas filed, the Magistrate, after hearing the
\ncounsel for the department, took cognizance of
\nthe offence and passed the following order:
\nMr. S.A.A. Naqvi, counsel for the
\ndepartment is present. Complainant is
\npublic servant. Cognizance is taken.
\nIssue summons to accused under Section
\n18(2)(3) of FERA, 73 read with Central
\nNotification and r\/w Section 68(1) of
\nthe said Act and r\/w 56 (1)(i) and r\/w
\nSection 49(3) (4) of FEMA, 1999.
\nSummons returnable on 7.2.2003 at 3
\np.m.              (emphasis supplied)\n<\/p>\n
26.\t\tUndoubtedly, the process was issued on
\nFebruary 3, 2003. In our judgment, however, it
\nwas in pursuance of the cognizance taken by the
\nCourt on May 24, 2002 that a subsequent action
\nwas taken under Section 204 under Chapter XVI.
\nTaking cognizance of offence was entirely
\ndifferent from initiating proceedings; rather
\nit was the condition precedent to the
\ninitiation of the proceedings. Order of
\nissuance of process on February 3, 2003 by the
\nCourt was in pursuance of and consequent to
\ntaking cognizance of an offence on May 24,
\n2002. The High Court, in our view, therefore,
\nwas not right in equating taking cognizance
\nwith issuance of process and in holding that
\nthe complaint was barred by law and criminal
\nproceedings were liable to be quashed. The
\norder passed by the High Court, thus, deserves
\nto be quashed and set aside.\n<\/p>\n
27.\t\tIt was also contended by the learned
\ncounsel for the appellant that the relevant
\ndate for considering the question of limitation
\nis the date of filing of complaint and not
\ntaking cognizance or issuance of process by a
\nCourt of law. In this connection, our attention
\nwas invited by the counsel to Bharat Damodar
\nKale & Anr. v. State of A.P.,<\/a> (2003) 8 SCC 559
\nand a recent decision of this Court in Japani
\nSahoo v. Chandra Sekhar Mohanty,<\/a> (2007) 7 SCC\n<\/p>\n
394. In Japani Sahoo, one of us (C.K. Thakker,
\nJ.), after considering decisions of various
\nHigh Courts as also Bharat Damodar Kale,
\nstated:\n<\/p>\n
52. The matter can be looked at from
\ndifferent angle also. Once it is
\naccepted (and there is no dispute
\nabout it) that it is not within the
\ndomain of the complainant or
\nprosecuting agency to take cognizance
\nof an offence or to issue process and
\nthe only thing the former can do is to
\nfile a complaint or initiate
\nproceedings in accordance with law.
\nIf that action of initiation of
\nproceedings has been taken within the
\nperiod of limitation, the complainant
\nis not responsible for any delay on
\nthe part of the Court or Magistrate in
\nissuing process or taking cognizance
\nof an offence. Now, if he is sought to
\nbe penalized because of the omission,
\ndefault or inaction on the part of the
\nCourt or Magistrate, the provision of
\nlaw may have to be tested on the
\ntouchstone of Article 14 of the
\nConstitution.  It can possibly be
\nurged that such a provision is totally
\narbitrary, irrational and
\nunreasonable. It is settled law that a
\nCourt of Law would interpret a
\nprovision which would help sustaining
\nthe validity of law by applying the
\ndoctrine of reasonable construction
\nrather than making it vulnerable and
\nunconstitutional by adopting rule of
\nlitera legis.  Connecting the
\nprovision of limitation in Section 468
\nof the Code with issuing of process or
\ntaking of cognizance by the Court may
\nmake it unsustainable and ultra vires
\nArticle 14 of the Constitution.\n<\/p>\n
28.\t\tThe learned counsel for the
\nrespondent, on the other hand, tried to
\ndistinguish Bharat Damodar Kale and Japani
\nSahoo submitting that in both the decisions,
\nthis Court was called upon to consider, inter
\nalia, Section 468 of the Code providing for
\nlimitation for taking cognizance of certain
\noffences. According to the counsel, Section 468
\nof the Code starts with the expression Except
\nas provided elsewhere in this Code. Section
\n49(3) of FEMA, on the other hand, starts with a
\nnon-obstante clause (Notwithstanding anything
\ncontained in any other law for the time being
\nin force). It was, therefore, submitted that
\nthe ratio laid down in the above two cases
\nwould not be applicable to the instant case.\n<\/p>\n
29.\t\tIn our opinion, it would not be
\nnecessary for us to express any opinion one way
\nor the other on the larger question. We have
\nalready held in the earlier part of the
\njudgment that in the case on hand, cognizance
\nof an offence had already been taken by the
\nChief Metropolitan Magistrate, Mumbai on May
\n24, 2002, well within the period prescribed by
\nsub-section (3) of Section 49 of FEMA within
\ntwo years of coming into force of the Act from
\nJune 1, 2000. We, therefore, express no opinion
\non the question raised by the learned counsel
\nfor the respondent.\n<\/p>\n
30.\t\tAs regards quashing of proceedings on
\nmerits, the learned counsel for the appellant
\nis right in submitting that the High Court has
\nnot at all touched the merits of the case and
\nproceedings were not quashed on the ground that
\nthe provisions of FERA do not apply to the case
\nbefore the Court. The High Court dealt with
\nonly one point as to whether the proceedings
\nwere liable to be quashed on the ground that
\nthey were time-barred and upholding the
\ncontention of the accused, passed the impugned
\norder. As we are of the view that the High
\nCourt was not right in quashing the proceedings
\non the ground of limitation, the order deserves
\nto be set aside by remitting the matter to the
\nChief Metropolitan Magistrate, Mumbai to be
\ndecided in accordance with law. We may,
\nhowever, clarify that it is open to the
\nrespondents to take all contentions including
\nthe contention as to applicability or otherwise
\nof FERA to the facts of the case. As and when
\nsuch question will be raised, the Court will
\npass an appropriate order in accordance with
\nlaw.\n<\/p>\n
31.\t\tFor the foregoing reasons, the appeal
\nis allowed. The order passed by the High Court
\nis set aside and it is held that cognizance of
\nthe offence had already been taken by the
\ncompetent Criminal Court i.e. Chief
\nMetropolitan Magistrate, Mumbai on May 24, 2002
\nand it could not be said that the proceedings
\nwere barred by Section 49(3) of FEMA. The Chief
\nMetropolitan Magistrate will now proceed to
\nconsider the matter in accordance with law. All
\ncontentions of all parties are kept open except
\nthe one decided by us in this appeal. Since the
\nmatter is very old, the Court will give
\npriority and will decide it as expeditiously as
\npossible, preferably before June 30, 2008.\n<\/p>\n
32.\t\tOrdered accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S.K. Sinha, Chief Enforcement … vs Videocon International Ltd. & Ors on 25 January, 2008 Author: C Thakker Bench: C.K. Thakker, P.P. Naolekar CASE NO.: Appeal (crl.) 175 of 2007 PETITIONER: S.K. SINHA, CHIEF ENFORCEMENT OFFICER RESPONDENT: VIDEOCON INTERNATIONAL LTD. & ORS. DATE OF JUDGMENT: 25\/01\/2008 BENCH: C.K. THAKKER & P.P. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-244324","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS.K. 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