First Global Stockbroking Pvt. Ltd. & Ors. Vs Anil Rishiraj & Anr (Supreme Court of India)
Conclusion: In present facts of the case, the Hon’ble Supreme Court observed that the Enforcement Officer appointed under Section 3 of FERA, 1973 was authorized to file complaint under provisions of FERA even after getting repealed by the virtue of S. 49 of FEMA under the heading ‘Repeal and Savings’.
Facts: The Foreign Exchange Management Act, 1999 was brought into force with effect from 1st June 2000. By virtue of S. 49(1) of FEMA, the FERA, 1973 stood repealed. On 11th February 2002, the first respondent, who was an Enforcement Officer appointed under S. 3(e) of FERA, filed a complaint in the Court of the learned Chief Metropolitan Magistrate, Esplanade, Mumbai, against the appellants for various offences punishable under FERA and Section 120B of the Indian Penal Code. Cognizance was taken by the learned Additional Chief Metropolitan Magistrate, on the said complaint on 11th February 2002 by passing an order of issue of process.
The appellants made separate applications for discharge, but the learned 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 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.PC’) was filed by the appellants which has been dismissed by the impugned judgment dated 3rd February 2010 by the learned Single Judge of the High Court of Bombay.
The Hon’ble Supreme Court observed 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 subsection (2) of Section 61. The Enforcement Officers were appointed under clause (e) of Section 3 of FERA. By a notification dated 24th September 1993, issued under subclause (b) of clause (ii) of subsection (2) of Section 61 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.
Cognizance was taken under Section 49 of FEMA under the heading “Repeal and Saving” by the learned Magistrate within the sunset period of two years provided under subsection (3) of Section 49 of FEMA.
Further, it was observed that what is material here is subsection (4) of Section 49 of FEMA, which provides that subject to the provisions of subsection (3), all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. Subsection (3) of Section 49 saves the prosecution for the offences punishable under Sections 56 and 57, which have been committed prior to the repeal of FERA, provided the competent Court takes its cognizance within two years from the date of coming into force of FEMA. In view of subsection (4) of Section 49, 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 subsection (3) of Section 49 of FEMA. That is how the complaint filed by the Enforcement Officer, duly authorised under clause (ii) of subsection (2) of Section 61 of FEMA, will continue to be valid, inasmuch as by virtue of the legal fiction incorporated in subsection (4) of Section 49, the prosecution will continue to be governed by the provisions of FERA as if the same had not been repealed. Therefore, it was observed that during the sunset period, the authorisation of the Enforcement Officers to file the complaints continues to be valid for the limited purposes of subsection (3) of Section 49 of FEMA.
On basis of the above, the appeal was dismissed.
