Central
Bureau of Investigation Vs. State of Rajasthan & Ors [1996] INSC 762 (8 July 1996)
Ray,
G.N. (J) Ray, G.N. (J) Hansaria B.L. (J) G.N. Ray, J.
CITATION:
JT 1996 (6) 313 1996 SCALE (5)203
ACT:
HEAD NOTE:
WITH WRIT
PETITION (CIVIL) NO. 33 OF 1996 Arvind Singh Mewar V. Union of India & Anr.
leave
granted.
Heard
learned counsel for the parties.
This
appeal is directed against the order of the High Court of Rajasthan (Jaipur
Bench) dated July 6, 1993 in SB Crl. Misc. Petition No. 81 of 1992 under Section
482 of the code of criminal procedure, affirming the order dated October 22,
1991 passed by the learned Chief Judicial Magistrate (Economic Offices) Jaipur,
arising out of CBI case No. RC 8(s)/91/SIU (IX), New Delhi.
Shri Om
Prakash, Deputy Superintendent of Police, CBI/SIU (IX), New Delhi, made an
application under Section 155 (2) of the Code of criminal procedure, before the
Chief Judicial magistrate (Economic Offences), jaipur for grant of permission
to the said Deputy Superintendent of police, CBI, to investigate case No. RC
8/91/STU/(IX)/CBI/New Delhi under Section 25(1) read with Section 56 of the
Foreign exchange (regulating ) Act, 1973 (hereinafter referred to as FERA)
against respondent No.3 Shri Arvind Singh Mewar of Udaipur, Rajasthan. It was inter
alia stated in the said application under Section 155 (2) of the code of
Criminal Procedure that the aforesaid case was registered against Shri Arvind
Singh Mewar on the allegation that shri Mewar, an Indian National and a
resident in India, had purchased three properties in united Kingdom and god
them repaired and renovated involving total expenditure of Rs. 228 lakhs
(782790 ponds) approximately. The said Arvind Singh had also incurred heavy
expenditure on the education of his daughter in U.K., journey expenditure to and fro United Kingdom and on the
purchase of Rolls Royace Car etc. All such expenditure was incurred by Shri Mewar
without any permission from Reserve Bank of India or Government of India. Accordingly, the said shri Mewar had committed
an offence under Section 25(2) read with Section 56 of FERA. It was further
stated in the said application that as per Section 62 of FERA, the offences
punishable under Section 56 of FERA were non-cognizable within the meaning of
Code of Criminal procedure and it was submitted that in order to investigate
the no-cognizable offence, the aforesaid application for permission was filed,
By the order dated October 22, 1991, the Chief judicial Magistrate (Economic
Offences) Jaipur, dismissed he said application, inter alia, on the finding
that under Section 5 of FERA, the State Government may by order and subject to
such conditions and limitations as it thinks fit to impose, authorise any
officer of Customs of any Central Excise such of the powers and discharge such
of the duties of the Director Enforcement or any other officer of the
Enforcement under FERA as may be specified in the order; but no notification
could be produced before the said learned Chief Judicial Magistrate which had
empowered CBI under Sections 4 and 5 of FERA to cause investigation in respect
of the offence under FERA. The learned Chief Judicial Magistrate also noted
that the Fir had been registered by the CBI under Section 154 (1) of the Code
of the Criminal Procedure. The learned Chief Judicial Magistrate indicated that
the offence alleged Against respondent NO. 3 was non- cognizable offence under
Section 62 FERA and FIR under Section 154 (1) of the Code of Criminal Procedure
could be registered for cognizable offences and not for non-cognizable offence.
The learned Judicial Magistrate further observed that in the FIR under Section
154 (1) of the Code of Criminal Procedure could be registered for cognizable
offences and not for non- cognizable offences. The learned Judicial Magistrate
further observed that in the FIR it was alleged that the violation of the
provisions of FERA had been committed in a foreign country. For investigation
of offences foreign country. For investigation of offences committed in foreign
countries, it was necessary to take permission of the Government of India Under
Section 188 of the Code of Criminal Procedure, but permission from Central
Government had not been taken, Accordingly, the learned Judicial Magistrate
held that the permission to investigate the offences alleged against Shri Arvind
Singh Mewar by the CBI could not be given and the said application was
dismissed.
Being
aggrieved by the said order of the learned Judicial Magistrate, the appellant
made an application under Section 482 of the Code of Criminal Procedure being
SB Crl.
Misc.
Petition No 81 of 1991. The Learned Single Bench of Rajasthan High Court (Jaipur
Bench) by order dated July
6, 1993 dismissed
observing that the reasonings given by the learned Chief Judicial Magistrate in
the Impugned Order being justified, there was no occasion to interfere with the
same.
Mr. Jayaram,
learned Additional Solicitor General appearing for the appellant, has submitted
that the learned Chief Judicial Magistrate and the High Court filled to
appreciated that SECTION 5 of FERA clearly empowers the Central Government to
entrust the functions of Director or other officer of Enforcement or any police
Officer or any other officer of the General Government or of a State to
exercise such powers and discharge such of the duties. Mr. Jayaram has further
submitted that any officer who has been entrusted with the duties and function
of the Directorate of Enforcement would be bound by the law which empowered
them to be deemed as "Officers of Enforcement". Mr. Jayaram has also
submitted that the contention that the provisions of the Code of Criminal
Procedure cannot apply to the offences under FERA is without any basis. By
Section 62 of FERA, the contention that the provisions of the Code of Criminal
Procedure cannot apply to the offences under FERA is without any basis. By
Section 62 of FERa, the offences punishable under Section 56 of FERA have been
made non-cognizable within the meaning of that Code. He has submitted that
there cannot be any authority other than authority mentioned under Section 155
of the Code of Criminal Procedure to deal with the cases under FERA being
not-cognizable offence. Mr. Jayaram has also submitted that where the operation
of the Code has been kept in abeyance that has been specifically se out in
FERA. By way of illustration he has referred to Section 56(6) of FERA wherein
it has been specifically stated that "nothing in the first proviso to
Section 188 of the Code of Criminal Procedure, 1898 (5 of 1898) shall apply to
any offence punishable under this Section." Mr. Jayaram has further
submitted that the offences under FERA were notified for investigation by CBI
in exercise of the powers conferred on the Central Government vide Sections 3
and 5 read with Section 6 of the Delhi Special Police Establishment Act, 1946
(hereinafter referred to as DSPE Act). The Government of Rajasthan vide letter No.
G.10(1) Home/XIV/74 dated November 10, 1975 addressed to the Government of
India had conveyed its consent under Section 6 of the DSPE exercising power and
jurisdiction in the whole of State of Rajasthan for investigation of offences
punishable under FERA and attempt, abetments and conspiracies in relation to or
in connection with the said offences. Mr. Jayaram has further submitted that
the CBI, Special Police Establishment, is specialised Investigation Agency
constituted under the DSPE Act for the Investigation of special class of crimes
having interest and international ramifications irrespective of the fact that
the offences therein are covered by a special legislation. It has been
contended by Mr. Jayaram that entrustment of an offence of a special nature to
any of the reputed agencies for investigation is purely a "State
subject" and the same is within the inherent powers of a State Government.
Therefore, the consent given by the Government of Rajasthan is within the
inherent powers and jurisdiction of the State Government and such exercise of
power and jurisdiction are out of the scope of judicial interference.
Mr. Jayaram
has contended that the State Government has the prime responsibility over the
crime, law and order situation within its territory. It has also been contended
by Mr. Jayaram that in view of the consent given by the Government of
Rajasthan, Department of Personnel and Administrative Reforms of the Central
Government vide Order No228/2/74-AVD/II dated October 26, 1977, in Exercise of
the powers Conferred under section 5 the DSPE Act, notified the offences under
FERA for investigation by DSPE in various States including the State of
Rajasthan. Mr. Jayaram has submitted that a consolidated notification bearing
No.228/8/89-AVD/II dated September 7, 1989 was issued under Section 3 of the
DSPE Act in respect of the offences for which consent by all the State
Governments has been given for the pursue of investigation by the CBI and the
offences under FERA are at SL. No. 19 of the list of Central Acts notified
investigation by the members of DSPE. Mr. Jayaram Magistrate and the High Court
failed to appreciate the implication of the Special legislation which deals with
all types of offences either to be departmentally dealt with in adjudication
proceedings as well conviction by a court of law if so warranted. Mr. Jayaram
has submitted that Section 5 of undoubtedly confers authority on Central
Government to Enforcement or his subordinates to a Police Officer. Hence, the
notification issued under Section 3 pf DSPE Act authorising the officers of
DSPE to investigate into the offences under FERA must be held to be a due authorisation
under Section 5 of FERA.
Mr. Jayaram
has contended that the CBI having legal authority took up the case for
investigation and made the application under Section 155(2) Cr.P.C. before the
Chief Judicial Magistrate for permission to investigate a non- cognizable
offence. Due to refusal of permission by the Chief Judicial Magistrate, no
enquiry could be held by the CBI. It has been submitted by Mr. Jayaram that the
primary requirement of law of the country should not be jeopardised by refusing
to accord permission on untenable grounds. Mr. Jayaram has submitted that it
was preeminently a fit case where permission should have been granted to the
CBI to cause investigation in respect of the allegations of serious breach
under FERA.
Mr. Jayaram
has also submitted that the CBI has initiated the case by registration of Fir
No. RC 8(S)/91- SIU.IX/CBI/New Delhi on September 17, 1991 which is much before
any action taken by the Director of Enforcement. A copy of the FIR has also
been sent to the Director of Enforcement, The Directorate of Enforcement is free
to investigate the lapses under FERA other than the offences under Section
25(1) read with Section 56 of FERA. Such investigation of the CBI does not
amount to parallel investigation, In any event, there is not question of double
jeopardy unless the accused has been prosecuted for the same offence by tow
authorities. Mr. Jayaram has submitted that it is not necessary to give
specific authority to officers of the CBI individually to cause investigation
relating to the offences under FARA. A general notification authorising the
officers of the DSPE to investigate the offences under FERA must be held to be
proper authorisation to all the members of the CBI to cause investigation. In
support of 1961 SC 1762). Our attention has been drawn to the observation of
this Court at page 1778 which is to the following effect:- "It was
contended before the High Court and it was repeated before us that the consend
should have been given to every individual member of the Special Police
Establishment and that a general consent would not be a good consent. We do not
see any force in this argument.
Under
Section 6 of the Delhi Special Police Establishment Act, no member of the said
Establishment can exercise powers and jurisdiction in any area in a State
without the consent of the Government of the State. That section does not lay
down that every member of the said Establishment should be specifically authorised
to exercise jurisdiction in that area, though the State Government can do so.
When a
State Government can authorise a single single officer to exercise the said
jurisdiction, we do not see any legal objection why it could not authorise the
entire force operating in that area belonging to that Establishment to make
such investigation. to make such investigation. The authorisation filed in this
case sufficiently complies with the provisions of Section 6 of the Delhi
Special Police Establishment Act, 1946, and there are no merits in this
contention." Mr. Jayaram has also submitted that Section 3 of the DSPE Act
empowers the Central Government to specify the offences to be investigated by
the members of DSPE. The offences under FERA have been mentioned in the
notification empowering the members of the DSPE. The superintendence of DSPE
vests in the Central Government and section 5 of DSPE Act empowers the Central
Government to extend to any area in a State, not in a Union Territory, the powers and the jurisdiction of the members of the
Establishment for investigation of any offences or classes of offences
specified under Section 3. Subject to the orders of the Central Government, the
members of such establishment exercising such extended powers and jurisdiction
are to be deemed to be the members of the Police Force of that area for the
purpose of powers, functions, privileges and liabilities; but the powers and
jurisdiction of a member of DSPE in such State is to be Exercised only with the
consent of the Government of the State concerned. Mr. Jayaram has submitted
that the scheme of DSPE Act does not either expressly or by necessary
implication divest the police authorities of their jurisdiction and powers
under any other competent law. Mr. Jayaram has also submitted that DSPE Act is
only permissive and empowers the members of DSPE also to investigate all the
offences specified under Section 3 of DSPE Act. In support of this contention,
Mr. Jayaram has relied on the observation at paragraph 12 in the decision of
this Court in A.C. Sharma V. Delhi Administration (AIR 1973 so 913). Mr. Jayaram
has submitted that by authorising the members of the CBI to cause
investigations relating to the offences under FERA, the power conferred or the
officers of the enforcement under FERA has not been taken away.
Mr. Jayaram
has also contended that as the offence under FERA can be investigated by the
members of the CBI in view of the specific notification issued by the Central
Government under DSPE Act and as the jurisdiction of such Officers of CBI view
of the specific notification issued by the Central Government under DSPE Act
and as the jurisdiction of such Officers of CBI to cause investigation has been
extended in the State of Rajasthan with due consent of Government of Rajasthan,
there cannot be any impediment of the Officer of the CBI to cause investigation
relating to the offences alleged to have been committed by Shri Arvind Singh Mewar.
In the aforesaid circumstances, the permission sought for by the Dy.
Superintendent of Police of the CBI before the learned Chief Judicial
Magistrate, Jaipur, Should have been granted and the High Court erred in not
setting aside the order of rejection of such permission sought by the CBI.
Mr. Jayaram
has submitted that despite very serious allegations of violations of FERA by Shri
Arvind Singh Mewar, investigation cannot be taken up for want of permission by
the learned Judicial Magistrate. He has , therefore, submitted that in the
facts of the case, the impugned order of the learned Chief Judicial Magistrate
in refusing the permission sought for by the CBI to make investigation relation
to the allegations contained in the FIR, since upheld by the High Court, should
be set aside and the permission should be given to the CBI to cause
investigation in respect of the offences alleged in the FIR.
Mr. Ashok
Sen, learned Senior counsel appearing for the respondent no. 3, namely, Shri Arvind
Singh Mewar, has contended that it will be quite apparent from the combined
reading of Sections 4,5 and 26 of the code of Criminal procedure that if there
is special law prescribing the special procedure for investigation of the cases
falling under that law, the provisions of the Code of Criminal Procedure are
not applicable, It is only in the absence of any provision regulating
investigation, inquiry and trial of non-IPC offence i.e. offence under any
other law, investigation, inquiry or trial, shall be as per the Code Criminal
Procedure, Under FERA Specific provisions have been made for the investigation,
inquiry and recording of statement of witnesses and also of trial of offences
under FERA. Therefore, the Provisions of the Code of Criminal Procedure do not
govern the investigation etc. in respect of the offences under FERA. Mr. Sen
has submitted that Section 33 (2) of the FERA empowers the Central Government
or the Reserve Bank or any other Officer of Enforcement Directorate not below
the rank of Chief Enforcement Officer to call for information, Section 34 of
FERA powers any officer of the Enforcement Directorate so authorised by Central
Government to search a suspected person and to seize document. Section 35 authorises
an officer or Enforcement to arrest a person against whom the officer has
reason to believe that any person in India or within the Indian customs waters
has been quietly of an offence punishable under FERA. Section 30 authorises the
officer of Enforcement to stop and search the conveyances. Section 37 confers
power to search premises.
Section
38 authorises the officers of Enforcement authorised by the Central Government
to examine persons. Section 40 authorises the Gazetted Officer of Enforcement
to summon persons to give evidence and produce documents. Section 41 authorises
an officer of Enforcement to take into custody of the document, Section 42 authorises
such officer to investigate the drafts, cheques and other instruments.
Section
43 authorises the officer of Enforcement to inspect books of accounts and other
documents. Other provisions of the Act provide various course of actions for
implementation of the Act. the said contravention of Section 25 is punishable
under Section 56. Section 62 of the Act makes the offence under FERA as
no-cognizable. Mr. Sen has submitted that the aforesaid scheme of FERA clearly
shows that FERA is a self contained code which is fully comprehensive
specifying the various offences, prescribing the procedure for investigation or
trial of such offences and the punishment to be awarded for such offences.
These provisions of the Code are not applicable in respect of such matters
governed by the special law i.e. FERA.
Mr. Sen
has further submitted that the effect of Section 5 of code of Criminal
Procedure is to render the provision of the Code inapplicable in respect of
matters convert by special law, This Section clearly excludes the applicability
of code in respect of investigation etc. under any special or local law.
Therefore, only those officers who have been empowered to investigate under the
special law i.e.FERA can do so and that to in accordance with the special law.
Mr. Sen has submitted that the police therefore, does out of picture. Section
155 of the Code of Criminal Procedure also cannot be invoked as on account of
specific provisions in the special law, general provisions contained in the
Code do not apply.
"Section
5 Criminal Procedure Code Provides that all offences under any law other than
the Indian penal Code shall be investigated, Inquired into, Tried and otherwise
dealt with according to the provisions contained in the Code or Criminal
Procedure but subject to any enactment for the time being in force regulating
the manner or place of investigation, inquiring into, trying or otherwise
dealing with such offences. The Foreign Exchange Regulation Act is a Special
Act and it Provides Under Section 19A for the necessary investigation into the
alleged suspected commission of an offence under the Act, by the Director of
Enforcement. The provisions of the Code of Criminal Procedure therefore will
not apply to such investigation by him." Mr. Sen has also referred to the
decision of madras High Court in L.E. Mohammad Hussain vs. Dy. superintendent
of Customs (AIR 197 Madras 464) has been observed in the said decision:-
"When there is a prohibition against taking cognizance by the Magistrate
without a complaint by concerned authority and when procedure is laid down
under the Foreign Exchange Regulation Act which is a special Act, the power of
the police to investigate can only be confined to that conferred to them under
Section 19--j (2) of the Act. So for as offence in the Special enactments area
made Cognizable, the police. under the general power, may investigate. In the
Foreign Exchange Regulation Act. the only offence that is made cognizable is
the contravention of sub-section (1) of Section 4, and the police cannot
investigate other offences except on the complaint of the officer concerned and
with the order of the Magistrate. In investigating a cognizable offence with
they are entitled to, it may be that certain facts which may amount to an
offence under special Act may also be disclosed. But that would not deprive the
police of their poser to investigate a cognizable offence not falling under the
special Statute." Mr. Sen has submitted that Section 62 of FERA makes all
offences punishable under Section 56 non-cognizable, thereby excluding the
jurisdiction of police officer to investigate such offences. The provisions of
Chapter XIV of the Code of Criminal Procedure, therefore, cannot apply to
investigation of such offences. Mr Sen has also submitted that violation of
Section 25 (restriction on purchase of properties abroad) is punishable under
Section 56 of FERA. Section 62 has been enacted notwithstanding anything
contained in the Criminal Procedure Code. the said Section 62 has been enacted
to prevent police from initiating action in case of alleged FERA violations.
The jurisdiction of police is normally excluded from several economic offences
as they can be properly investigated by specialized agencies only. Mr. Sen has
submitted that Section 45 of FARA is the only excepting where powers have been
conferred upon police in case a person is guilty of illegally purchasing or
buying foreign exchange in public place (Section 8(1) FARA). This is the only
limited role of police under FARA.
Mr. Sen
has also submitted that a member of DSPE has only jurisdiction to investigate
the offence committed outside the country does not fall within the purview of
the provisions of DSPE Act. He has submitted that even under Section 188 of the
Code of Criminal Procedure, The Permission of the Central Government is
necessary for investigation for an offence punishable out said the country.
Therefore, in any event, investigation in respect of the offences alleged to
have been committed by the respondent no. 3 outside India in violation of FARA cannot be done
by any member of CBI.
Mr. Sen
has also submitted that Sections 3 and 5 of the DSPE Act cannot be applicable
for the offences said to have been committed outside the country. Mr. Sen has
also submitted that Section 25 of FARA provides that no person resident in India shall. except with the general or
special permission of the Reserve Bank of India Acquire or hold or transfer or
dispose of by sale, mortgage, lease, gift, settlement or otherwise any
immovable property situate outside India. The offence under Section 25 cannot be committed in India. Therefore, the powers by the
Notification issued under DSPE Act purporting to authorise the officers of the
DSPE to investigate in respect of the offences committed outside India under
FARA is beyond the provisions of the DSPE act and such Notification is ex facie
illegal. Mr Sen has , therefore, submitted that the learned Chief Judicial
Magistrate has rightly rejected the application made under Section 155 of the
code of Criminal Procedure and the High Court has rightly rejected the
application under Section 482 of the Code of Criminal Procedure and the High
Court has rightly rejected the application under Section 482 of the Code of
Criminal Procedure to challenge the said decision of the learned Chief Judicial
Magistrate. He has therefore, submitted that the appeal should be dismissed.
On a
careful consideration of the facts and circumstances of the case and
submissions made by the learned counsel for the parties, it appear to use that
under Section 3 of DSPE Act, the Central Government May, by notification,
specify the offences which are to be investigated by the members of DSPE. It is
not disputed that notification under Section 3 of DSPE Act has been issued by
the central Government specifying the offences under FARA to be investigated by
the members of DSPE. It is also not in dispute the a notification dated October 26, 1977 by the Government of India.
Ministry of Home Affairs, Department of Personal and Administrative Reforms,
has been issued in exercise of the powers conferred by sub-section (1) of
Section 5 read with Section 6 of DSPE act. By the said notification the Central
Government. with , with consent of the various State Governments as mentioned
in the said notification including the State Government of Rajasthan, has
extended the powers and jurisdiction of the members of DSPE, inter alia, to the
state of Rajasthan for the investigation of the offences specified in the
Schedule under clause (a), offences punishable under FARA and under clause (b)
attempts, abetments and conspiracies in relation to or in connection with any
offence mentioned in clause (a) and any other offence committed in the course
of the same transaction arising out of the same facts have been mentioned.
It is,
however, to be noted that under Section 7 of DSPE act, the Central Government
has been empowered to constitute a special police force to be called the DSPE
for the investigation in any union Territory of offences notified under Section
3. Under Section 5 (1) of DSPE Act the Central Government may by order extend
to any area including Railway areas in a State, not being Union Territory, the
Powers and jurisdiction of the members of the DSPE for the investigation of any
of the offence or classes of offences specified in a notification under Section
3.
Under
Section 5 (2), when by an order under sub-section (1), the powers and
jurisdiction of the members of the said police establishment are extended to
any such area, a member thereof may, subject to any order which the Central
Government may make in this behalf discharge the functions of a police officer
in that area and shall, while so discharging such functions, be deemed to be a
member of a police force of that area and be vasted with the powers, functions
as and privileges and be subject to the liabilities of a police officer
belonging to that police force.
It is
quite evident that members of DSPE are members of special police force
constituted under Section 2 of DSPE Act by the Central Government. The question
that arises for decision in this case is whether or not a member of DSPE, Which
is also a member of special police force constituted by the Central Government,
even if authorised under Section 3 and Section 5 of DSPE Act to investigate in
respect of offences under FERA in a particular state other than the Union
Territory, with the consent of such State Government, can investigate the
offences for violation of FERA, more so, when the offence is alleged to have
been committed outside Indian Territory. It will be apposite at this stage to
refer to the provisions of Section 3, 4 and 5 of FERA:
Section
3: Classes of Officers of Enforcement- There shall be the following classes of
officers of Enforcement, namely:
(a)
Directors of Enforcement;
(b)
Additional Directors of Enforcement;
(c)
Deputy Directors of Enforcement;
(d)
Assistant Directors of Enforcement:
(e) such
other class of officers of Enforcement as may be appointed for the purposes of
this Act.
Section
4- Appointment and powers of officers of enforcement:- (1) The Central
Government may appoint such persons as it thinks fit to be officers of
enforcement.
(2)
Without prejudice to the provisions of sub-section (1), the Central Government
may authorise a Director of Enforcement or an Additional Director of
Enforcement or a Deputy Director of Enforcement or an Assistants Director of
Enforcement to appointed officers of Enforcement below the rank of an Assistant
Director of Enforcement.
(3)
Subject to such conditions and limitations as the Central Government may
impose, and officer of impose, an officer of Enforcement may exercise the
powers and discharge the duties conferred or imposed on him under this Act.
Section
5- Entrustment of functions of Director or other officer of Enforcement:
The
Central Government may, by order and subject to such conditions and limitation
as it thinks fit to impose, authorise any officer of customs or any Central
Excise Officer or any police officer or any other officer or the Central
Government or a State Government to Exercise such of the powers and discharge
such of the duties of the Director of Enforcement or any other officer of
Enforcement under this Act as may be specified in the order.
The
aforesaid Sections of FERA indicate that for implementing enforcement of the
provisions of FERA different classes of officers of Enforcement have been
constituted in Section 3. Under Section 4(1) of FERA, the Central Government
may authorise some of the senior officials of the Directorate of Enforcement,
as mentioned in that sub-section (3) of Section 4 authorises the Central
Government to impose conditions and limitations in the exercise of powers and
discharge of duties under Fera by an officer of Enforcement.
Section
5 authorises the Central Government to entrust the functions of Director or
other officers of the Enforcement, with such conditions and limitations as it
thinks fit, to any officer of the customs or any Central Excise Officer or any
police officer or any other officer of the Central Government or a State
Government to exercise such of the powers and discharge such of the duties of
the Director of Enforcement of any other officer of the Enforcement under FERA
as may be specified in the order to be issued by the Central Government.
In our
view, a combined reading of Sections 3, 4 and 5 of FERA makes it quite evident
that primarily the officer of Enforcement Directorate as mentioned in Section 3
and 4 have been empowered to exercise the powers and discharge the duties
conferred or imposed on such officers of the Enforcement Directorate under
FERA. As it may be expedient in some cases to confer powers and duties under
FERA to persons outside the Enforcement Directorate, the Legislature in its
wisdom has given authority to the Central Government under Section 5 of FARA to
authorise any officer or any officer of Central Government or State Government
to exercise such of the powers and discharge such of the duties of the Director
of Enforcement or any other officer of Enforcement under FERA as may be
specified subject to such conditions and limitations as deeded fit by the
Central Government.
The
member of DSPE is a member of police force constituted under DSPE Act by the
Central Government. Under DSPE Act, a member of DSPE can Exercise the power of
investigation in the offence or offences as specified in Section 3 DSPE act
within Union Territory. For exercising power of investigation outside Union Territory, even in respect of offences specified under Section 3 of
DSPE Act, a notification extending jurisdiction in the State or States outside Union Territory is required to be issued by the Central Government wit the
consent of such state Government or Governments. Unless such notification under
Section 5 of DSPE Act is issued, a member of DSPE cannot investigate and
exercise jurisdiction under DSPE act in respect of offence or offences
specified in Section 3 in a State outside the Union Territory. It has already been indicated that
notifications under Section 3 and 5 have been issued by the Central Government authorising
members of DSPE to investigate various offences including offences under FERA
in number of States outside Union Territory including the State of Rajasthan.
In our
view, such notifications under Section 3 and 5 of DSPE of Act are necessary for
the purpose of exercising powers by a member of DSPE in respect of offence or
offences and in respect of areas outside the Union Territory. It may however be noted here that
by a general notification, members of DSPE may be authorise to exercise power
of investigation in respect of offence or offences and in areas as specified in
the notification under Sections 3 and 5. as As already indicated, although
officers of Enforcement Directorate are clothed with the powers and duties to
enforce implementation of the provisions or FERA, the Central Government has
been authorised to impose on other officers including a police officer, powers
and authority to discharge such of the duties and functions as may be specified
by it. It is nobody's case that any notification has been issued under FERA authorising
the member of dspe to discharge the duties and functions and officer of
Enforcement Directorate. In our view, in the absence of such notification under
FERA, a member of DSPE, the foresaid notifications under Sections 3 and 5 of
DSPE Act, cannot be held to be an officer under FERA and therefore is not
competent to investigate into the offences under FERA.
FERA
is a special legislation relating to regulation of foreign exchange. FERA is
also a central legislation enacted at a later point of time than the DSPE Act
which was enacted in 1946. In our view, Section 4 and 5 of the code or Criminal
Procedure will not come in aid of the investigation of the Officer of DSPE in
accordance of the Criminal Procedure Code. Section 4 and 5 of the Code of
Criminal Procedure provide that in the absence of any provisions regulating
investigation, inquiry or trial of non-I.P.C. offences i.e. offences under any
other law, the investigation, inquiry and trial shall be in accordance with the
Code of Criminal Producer. But FERA is a self contained code containing
comprehensive provisions of investigation, inquiry and trial for the offences
under that Act. The provisions under FERA gives power to the officers of the
Directorate of Enforcement or other officers duly authorised by the Central
Government under FERA to search, conspirate, recover, arrest, record statements
of witnesses, etc., FARA contains provisions for trail of the offences under
FARA and imposition of punishment for such offences. FARA, being a special law,
containing provisions for investigation, enquiry, search, Seizure, trial and
imposition of punishment for offences under FARA, Section 5 of the Code of
Criminal Procedure is not applicable in respect of offences under FARA. In the
decision of Nil Ratan Sircar's case (supra), this Court has considered the
import of the provisions of FARA and has held:- "It was also urged for the
appellant that the provisions of Section 5(2) of the code apply to the present
case in matters which are not provided by the Act. This contention too has no
basis.
Section
5 provides that all offences under any law other than the Indian Penal code
shall be investigated, inquired into, tried and otherwise dealt with according
to the provisions contained in the Code of Criminal Procedure, but subject to
any enactment for the time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with such offences,
The Act is a special Act and it provides under Section 19-A for the necessary
investigation into the alleged suspected commission of an offence under the
Act, by the Director of Enforcement. The provisions of the Code of Criminal
Procedure therefore will not apply to such investigation by him, assuming that
the expression 'investigation' includes the retaining of the documents for the
purposes of the investigation." The position is same under the FERA of
1973 as it would appear from its various provisions noted above. the aforesaid
case was concerned with FERA of 1947. similar view has been expressed by this
Court in Ajmer Singh's case (supra) by indicating that the Army Act, Navy Act
and Air Force Act embody a completely self contained and comprehensive Code and
therefore constitute a special law in force providing for special jurisdiction
and powers on court material and prescribing a special form of procedure for
trial of the offences under the said Acts. Hence, Section 5 of the Code of
Criminal Procedure was not applicable.
It may
also be noted that the allegations in the FIR in question, Indicate commission
of offences under FERA outside India. DSPE
Act has been enacted "to make provision for constitution of special police
fore in Delhi for the investigation of certain offences in the Union Territory,
for the superintendence and administration of the said force and for extension
to other of the powers and jurisdiction of the members of the said force in
regard to the investigation of the said offences". Under Section 1 and 2
of DSPE Act, the authority under the said Act is to investigate the offences
committed in the Union Territory or in such other States where the Jurisdiction of the
member of DSPE has been extended under Section 5 of the Act. The member of
DSPE, therefore, is not clothed with the authority to investigate offences
committed outside India. Even under Section 188 of Code of
Criminal Procedure, investigation of an offence committed outside Indian territory may be made only with permission of
the Central Government. Of Course, if permission is granted, offences committed
outside India can also be investigated.
In the
aforesaid facts, we do not find any person to interfere with the impugned order
and the appeal is, therefore, dismissed.
WRIT
PETITION (CIVIL) NO. 33 OF 1996 This Writ Petition has been filed for quashing
Order No.228/2/74-AVD-II dated October 26, 1977 issued by the government of
India under Section 5 read with Section 6 of DSPE Act and letter/Circular dated
July passed in the appeal, indicating the scope and effect of notification
issued on October 26, 1977 under Section 5 and 6 of the DSPE Act, no further
order need be passed on this Writ Petition and the same Stands disposed of.
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