HIGH COURT OF
Vijay Mallya
v.
Enforcement
Directorate
S. Ravindra
Bhat, J.
CRL. REVISION
PETITION NO. 554 OF 2001
May 21, 2007
Section 56 of
the Foreign Exchange Regulation Act, 1973, read with section 219 of the code of
Criminal Procedure, 1973 - Offences and prosecutions - Enforcement Directorate
filed complaint against petitioner alleging that in course of investigation in
connection with an agreement entered into by petitioner with a foreign company,
it issued four summonses on several dates to petitioner for his appearance
together with certain documents, but petitioner did not appear on different
pretexts despite service of summons - Trial Court, while holding that one of
summonses was received by petitioner later and, therefore, could not be
complied with held that prima facie evidence existed for framing charges
against petitioner for committing offence under section 56 - In revision
petition, petitioner contended that (i) trial court had overlooked explanation
furnished by him for his non-apparent, (ii) there had been violation of
provisions of section 219 of code inasmuch as four incidents were clubbed
together and (iii) accusation regarding each incidents had been framed
composite instead of separately framing each charge - Whether petitioner’s
explanation regarding his non-appearance was justified and was correctly
ignored, were issues which were the matter of defence and no interference could
be made with the impugned order, for that reason - Held, yes - Whether as
regards second contention, suitable course would be to delete incident of
non-compliance of summons, which was received by petitioner later, from charges
as framed - Held, yes - Whether as regards framing at composite charge, since
no failure of justice had been occasioned on that account, there was no merit
in petitioner’s contention - Held, yes
FACTS
The Chief
Enforcement Officer filed complaint against the petitioner, alleging that he,
considering attendance of the petitioner, to be necessary, in connection with investigation, issued summons
on several dates viz. 15-9-1999, 7-10-1999, 8-11-1999 and 21-12-1999, under
section 40 for his appearance together with documents such as his passport and
correspondence, etc., relating to an agreement entered into by petitioner with
a foreign company but the petitioner failed to comply with the summons on
different pretext despite their service. The trial court, while observing that
summons dated 15-9-1999 issued for 27-9-1999 having been received by petitioner
on 27-9-1999 itself, could not have been possibly complied with, held that a prima
facie evidence existed for framing charges against the petitioner for
committing offence under section 56. The petitioner had filed instant revision
petition contending that he had furnished valid reasons for not complying with
summons; and that there had been violation of provisions of section 219 of the
Code of Criminal Procedure inasmuch as four incidents were clubbed together
instead of three incidents and that accusation regarding each incidents had
been framed composite, instead of separately framing each charge.
HELD
So far as the
arguments of the petitioner with regard to overlooking of explanation for his
absence, or the non-compliance with the summons were concerned, to the extent
they were a matter of record, they undoubtedly merited consideration ; the
trial court did consider the two letters relied upon, by him. However, whether
such explanation was justified and was correctly ignored, were issues which
were the matter of defence. There was no merit in the contention urged in
support of the petition, warranting interference with the impugned order, for
that reason. [
The main
complaint, articulated during the hearing were the twin violation of section
219(1). It was contended that the provision permitted clubbing of three
incidents whereas in fact four were put together ; these vitiated the
proceedings. Secondly, it was urged that accusation regarding each incident had
to be framed as a separate charge. As far as the first contention was
concerned, in view of the earlier finding regarding error by the Magistrate
including by the first incident, the suitable course would be to delete the
first incident from the charge, as framed.
[
The code has
made a conscious distinction between irregularities, which would not vitiate
the proceedings (section 460) and those which do so. The specific provision for
omission to frame charges, mis-joinder of charges, is found in section 464. The
underlying theme of that provision is that unless miscarriage of justice is
found by the Court, irregularity in the framing of charge or misjoinder of
charges, do not authorize the Court to set aside the order on charge.
Therefore, the recurring theme is that a omission or technical violation does not,
by itself, constitute a fatal infirmity in charges framed and for the
revisional or appellate Court to set aside such an order, there should be a
positive finding of failure of justice. Having regard to the facts of instant
case, no such failure of justice had been occasioned on account of the order on
charge or the charge as framed. [
As a result of
the above discussion, the petition was to be allowed to the limited extent that
the reference to the summons dated 15-9-1999, in the charge framed by the trial
Court would stand deleted. The order on charge would be read as confined to the
allegations pertaining to summons dated 7-10-1999, 8-11-1999 and 21-12-1999.
The petition was allowed to that extent. [