Case Note & Summary
The case arose from a complaint lodged by the Assistant Director of Enforcement Directorate, Bombay, against the appellants alleging commission of offences under Section 120B of the Indian Penal Code read with Sections 4(1), 4(2), 5(1)(a), 5(1)(aa) and 5(1)(c) of the Foreign Exchange Regulation Act, 1947, corresponding to Section 120B IPC read with Sections 8(1), 8(2), 9(1)(a), 9(1)(b) and 9(1)(d) of the Foreign Exchange Regulation Act, 1973. The Additional Chief Metropolitan Magistrate, Third Court, Bombay, dismissed the complaint on August 11, 1978 in Case No.133/W/1977, holding that because the penal provisions and procedure under the old Act and the new Act were different and inconsistent, the complaint under the new Act was not maintainable. The State of Maharashtra filed a revision petition before the Bombay High Court, which by impugned judgment dated November 27, 1979 set aside the Magistrate's order, holding there was no inconsistency affecting any substantive right of the accused and the complaint was maintainable. The appellants appealed to the Supreme Court. The core legal issue was whether the complaint could proceed under the new Act when the alleged violations had occurred under the old Act, and whether the absence of a prior departmental adjudication regarding adequacy of penalty under the old Act barred a criminal complaint. The appellants argued that under the old Act, a condition precedent to lodging a complaint in a criminal court was a departmental finding that imposition of penalty would not be adequate; the new Act omitted this safeguard, thereby taking away a substantive right and violating the rule against inconsistency. They relied on Superintendent & Remembrance of Legal Affairs, West Bengal v. Girish Kumar Navalanka, (1975) 4 SCC 754, where the vires of the proviso to Section 23D(1)(a) of the old Act was upheld because it contained the guideline of adequacy of penalty. They further contended that Section 51 of the new Act conferred unguided discretion on the departmental authority. The Supreme Court did not consider these contentions because the complaint also alleged an offence under Section 120B IPC. The Court observed that a conspiracy offence under Section 120B IPC could not have been decided by any departmental authority under either the old or the new Act; such complaint must necessarily be lodged only before a criminal court. The Court noted incidentally that a departmental finding that imposition of penalty would not be adequate had been made before lodging the complaint, but the complaint was lodged after the new Act became operative. In the circumstances, the complaint was held maintainable and no interference was called for. Accordingly, the Supreme Court dismissed the appeals, upholding the Bombay High Court's order. This decision establishes that where a complaint includes an offence like criminal conspiracy which is exclusively triable by a criminal court, the maintainability of the complaint cannot be defeated by arguments based on procedural differences between the old and new Foreign Exchange Regulation Acts or by the absence of prior departmental adjudication.
Headnote
A) Criminal Law - Criminal Conspiracy - Section 120B, Indian Penal Code, 1860 - Criminal Court Jurisdiction - A complaint alleging criminal conspiracy under Section 120B IPC cannot be adjudicated by any departmental authority under foreign exchange laws, and therefore must be filed only before a criminal court; consequently, the absence of prior departmental adjudication or inconsistency between old and new FERA does not bar such complaint. The Supreme Court held the complaint maintainable and dismissed the appeals. Held that the complaint was maintainable (Paras 1-3). B) Foreign Exchange Regulation - Maintainability of Complaint - Old Act vs New Act - Foreign Exchange Regulation Act, 1947 and Foreign Exchange Regulation Act, 1973 - The Court did not consider the alleged inconsistency between the old and new Act because the complaint also included Section 120B IPC, which was beyond departmental jurisdiction; hence the contention that Section 51 of the new Act suffered from excessive discretion was not addressed. Held that the complaint was maintainable (Paras 1-3).
Issue of Consideration
Whether complaint under Section 120B IPC read with FERA 1973 was maintainable when alleged violations occurred under FERA 1947 and complaint was filed after new Act came into force; whether absence of prior departmental adjudication under old FERA 1947 rendered complaint not maintainable
Final Decision
Appeals dismissed. Supreme Court held complaint maintainable because it included offence under Section 120B IPC, which could not have been decided by departmental authority; therefore no need to consider inconsistency. Bombay High Court order upheld.
Law Points
- Criminal complaint alleging Section 120B IPC cannot be decided by departmental authority under FERA
- absence of prior departmental adjudication does not bar complaint including IPC 120B
- inconsistency between old and new FERA not considered when complaint includes IPC offence
- criminal conspiracy exclusively triable by criminal court
