Supreme Court: In an appeal against the judgment passed by the Bombay High Court, wherein the Court has dismissed an application filed by the appellants under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’), the division bench of Abhay S. Oka* and Sanjay Karol, JJ. has held that an Enforcement Officer can file a complaint under repealed provisions of Foreign Exchange Regulation Act, 1973 (‘FERA’) during the sunset period of 2 years, after enforcement of Foreign Exchange Management Act, 1999 (‘FEMA’)
Background:
The FEMA was brought into force with effect from 1-06-2000. By virtue of Section 49 (1) of FEMA, the FERA stood repealed. On 11-02-2002, the respondent, an Enforcement Officer under Section 3 (e) of FERA, filed a complaint in the Court against the appellants for various offences punishable under FERA and Section 120-B of the Penal Code, 1860 (‘IPC’). The appellants made separate applications for discharge, but the 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 CrPC was filed by the appellants, which has been dismissed by the impugned judgment passed by the Bombay High Court.
Analysis:
The Court said that 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. After perusing the provisions of FEMA. It said that there is a difference between its scheme and the scheme of FERA. There are elaborate provisions for penalty under FEMA.
The Court noted that a criminal Court was empowered to take cognisance of the offences punishable under Sections 56 and 57 of FERA only on a complaint in writing made by an officer of the categories covered by subclauses (a) to (c) of clause (ii) of Section 61(2). The Enforcement Officers were appointed under Section 3(e) of FERA. By a notification dated 24-09-1993, issued under Section 61(2)(ii)(b) of FERA, various officers, including all the enforcement officers, were authorised to file a complaint in respect of the offences punishable under Sections 56 and 57 of FERA. Further, the Court took note of Section 49 of FEMA under the heading “Repeal and Saving” and said that Section 49 (1) repealed the provisions of FERA.
The Court noted that there is a sunset period available of two years as provided in Section 49(3) of FEMA for filing complaints alleging the commission of offences punishable under Sections 56 and 57 of FERA and for taking cognizance thereof. The Court said that, in the present case the cognizance was taken by the Magistrate within the sunset period of two years provided under Section 49(3) of FEMA.
Further, the Court noted that the complaint has been filed by the respondent, who was an Enforcement Officer appointed under Section 3(e) of FERA. The power under Section 61(2)(ii)(b) was exercised 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, it was held that the Enforcement Officer was authorised to file a complaint as provided in Section 61 (2) (ii) of FERA.
After taking note of Section 49(4) FEMA, the Court said that 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 prosecution of the offences which are saved by Section 49 (3) of FEMA.
Thus, the complaint filed by the Enforcement Officer, duly authorised under Section 61(2)(ii) of FEMA, will continue to be valid, by virtue of the legal fiction incorporated in Section 49 (4), and 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 Section 49(3) of FEMA.
Further, the Court said that a Statute cannot be interpreted in such a manner that any provision thereof is rendered otiose. Therefore, while rejecting the submissions made by the appellants, the Court said that any construction which will defeat the plain intention of the legislature must be rejected and interpretation which makes the provisions of a Statute workable will be adopted.
[First Global Stockbroking (P) Ltd. v. Anil Rishiraj, 2023 SCC OnLine SC 1199, Decided on 21-09-2023]
*Judgment Authored by: Justice Abhay S Oka
Know Thy Judge | Supreme Court of India: Justice Abhay Shreeniwas Oka
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