Case Note & Summary
The case involves appeals by Standard Chartered Bank and its officer against the judgment of the Bombay High Court, which declined to quash two criminal complaints filed by the Enforcement Officer, Ministry of Home Affairs, for offences under Sections 56(1) and 73(3) of the Foreign Exchange Regulation Act, 1973 (FERA). The complaints were filed in 2002, and the appellants were summoned. The appellants sought quashing on grounds of non-compliance with the mandatory opportunity notice under the proviso to Section 61(2) of FERA and violation of the right to speedy trial under Article 21 of the Constitution. The High Court dismissed the petitions, holding that the availability of an alternative remedy under Section 397 CrPC barred the Section 482 petition, and that the complaints were maintainable. The Supreme Court framed three issues: (1) whether the alternative remedy bars Section 482; (2) whether non-compliance with the proviso to Section 61(2) warrants quashing; and (3) whether the right to speedy trial was violated. On the first issue, the Court held that the inherent power under Section 482 is not ousted by the availability of revision, as it can be exercised to prevent abuse of process. On the second issue, the Court examined the proviso to Section 61(2) of FERA, which requires that before taking cognizance, the accused must be given a reasonable opportunity of being heard in respect of the contravention. The Court found that no such opportunity was given to the appellants before filing the complaints, making the complaints invalid. On the third issue, the Court noted that over 20 years had passed since the complaints were filed, with no progress in trial, and the delay was not attributable to the appellants. The Court held that this inordinate delay violated the right to speedy trial under Article 21. Consequently, the Supreme Court allowed the appeals, set aside the High Court's order, and quashed the criminal complaints and summoning orders against the appellants.
Headnote
A) Criminal Procedure Code - Section 482 - Maintainability - Alternative Remedy - The availability of a revision under Section 397 CrPC does not operate as an absolute bar to the maintainability of a petition under Section 482 CrPC, as the inherent power can be exercised to prevent abuse of process or secure ends of justice. (Paras 6-13) B) Foreign Exchange Regulation Act, 1973 - Section 61(2) proviso - Mandatory Opportunity Notice - The proviso to Section 61(2) of FERA mandates that no court shall take cognizance of an offence punishable under Sections 56(1) and 73(3) except upon a complaint in writing made by an officer authorized, and only after giving the person accused a reasonable opportunity of being heard in respect of the contravention. Non-compliance with this mandatory requirement renders the complaint and summoning order invalid and liable to be quashed. (Paras 14-26) C) Constitution of India - Article 21 - Speedy Trial - Inordinate delay of over 20 years in concluding the trial, without any fault of the accused, violates the fundamental right to a speedy trial under Article 21. The court must consider the totality of circumstances, including the length of delay, reasons for delay, and prejudice to the accused. (Paras 27-32)
Issue of Consideration
Whether the High Court was correct in holding that availability of alternative remedy under Section 397 CrPC bars Section 482 CrPC petition; Whether non-compliance with mandatory opportunity notice under proviso to Section 61(2) FERA warrants quashing of complaints; Whether appellants' right to speedy trial under Article 21 was violated
Final Decision
Appeals allowed. The judgment and order of the High Court dated 22.03.2012 is set aside. The criminal complaints bearing Criminal Case Nos. 1503-1504 of 2002 and the summoning orders against the appellants are quashed.
Law Points
- Alternative remedy under Section 397 CrPC does not bar Section 482 CrPC petition
- Mandatory opportunity notice under proviso to Section 61(2) FERA is a condition precedent for prosecution
- Speedy trial under Article 21 is violated by inordinate delay
