FIRST GLOBAL STOCKBROKING PVT. LTD. & ORS.versusANIL RISHIRAJ & ANR.

                  [2023] 12 S.C.R. 421 : 2023 INSC 845



                             CASE DETAILS

       FIRST GLOBAL STOCKBROKING PVT. LTD. & ORS.
                                      v.
                        ANIL RISHIRAJ & ANR.
                    (Criminal Appeal No. 2151 of 2011)
                          SEPTEMBER 21, 2023
           [ABHAY S. OKA AND SANJAY KAROL, JJ.]

                              HEADNOTES

     Issue for consideration: Whether the Enforcement Officer appointed
under FERA, 1973 continued to have the authority or competence to file a
complaint for the offences punishable under FERA before the expiry of the
sunset period provided in sub-section (3) of s.49 of FEMA, 1999.
     Foreign Exchange Management Act, 1999 – Foreign Exchange
Regulation Act, 1973 – On 11.02.2002, the first respondent, who was an
Enforcement Officer appointed under clause (e) of s.3 of FERA, filed a
complaint against the appellants for various offences punishable under
FERA and s.120-B of IPC – Cognizance taken by the Magistrate – Same
was upheld by the High Court – Propriety:
      Held: The Foreign Exchange Management Act, 1999 (FEMA) was
brought into force with effect from 01.06.2000 – By virtue of sub-section
(1) of s.49 of FEMA, the Foreign Exchange Regulation Act,1973 (FERA)
stood repealed – In the facts of the case, the cognizance was taken by the
Magistrate within the sunset period of two years provided under sub-section
(3) of s.49 of FEMA – The complaint was filed by the first respondent, an
Enforcement Officer appointed under clause (e) of s.3 of FERA – The power
under sub-clause (b) of clause (ii) of sub-section (2) of s.61 was exercised by
the Central Government and all the Enforcement Officers were authorised to
file complaints regarding the offences punishable u/ss. 56 and 57 of FERA
– What is material here is sub-section (4) of s.49 of FEMA, which provides
that subject to the provisions of sub-section (3), all offences committed
                                     421
422          SUPREME COURT REPORTS                       [2023] 12 S.C.R.


under the repealed Act shall continue to be governed by the provisions of
the repealed Act as if that Act had not been repealed – Sub-section (3) of
s.49 saves the prosecution for the offences punishable u/ss. 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 sub-section (4) of s.49, for the purposes of
the prosecution of offences punishable u/ss. 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 sub-section (3) of s.49 of FEMA – That is
how the complaint filed by the Enforcement Officer, duly authorised under
clause (ii) of sub-section (2) of s.61 of FEMA, will continue to be valid,
inasmuch as by virtue of the legal fiction incorporated in sub-section (4)
of s.49, the prosecution will continue to be governed by the provisions of
FERA as if the same had not been repealed. [Paras 10 and 11]

       LIST OF CITATIONS AND OTHER REFERENCES

     M/s. P.V. Mohammad Barmay Sons v. Director of Enforcement 1993
Supp (2) SCC 724:[1992] 3 SCR 960 – relied on.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.2151 of 2011.
     From the Judgment and Order dated 03.02.2010 of the High Court of
Judicature at Bombay in CRLA No.1982 of 2008.
      Appearances:
     Siddhartha Dave, Sr. Adv., Braj Kishore Mishra, Abhishek Yadav,
Prastut Dalvi, Ruchit Mohan, Advs. for the Appellants.
     Ms. Aishwarya Bhati, A.S.G., Mukesh Kumar Maroria, Aman Sharma,
Ms. Chitragda Rastvara, Shashwat Anand, Jitendra Kumar Tripathi, Shrirang
B. Varma, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat
Bagla, Sourav Singh, Aditya Krishna, Advs. for the Respondents.
    FIRST GLOBAL STOCKBROKING PVT. LTD. v. ANIL                         423
                     RISHIRAJ

       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

     ABHAY S. OKA, J.
     FACTUAL ASPECTS
      1. The Foreign Exchange Management Act, 1999 (for short, ‘FEMA’)
was brought into force with effect from 1st June 2000. By virtue of sub-
section (1) of Section 49 of FEMA, the Foreign Exchange Regulation Act,
1973 (for short, ‘FERA’) stood repealed. On 11th February 2002, the first
respondent, who was an Enforcement Officer appointed under clause (e)
of Section 3 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 120-B of the
Indian Penal Code. Cognizance was taken by the learned Additional
Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai, on the said
complaint on 11th February 2002 by passing an order of issue of process.
     2. 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.
     SUBMISSIONS
      3. Mr. Siddhartha Dave, the learned senior counsel appearing for the
appellants has taken us through the relevant provisions of the FERA and the
FEMA. As the High Court has not dealt with the merits of the complaint,
even the learned senior counsel has not made submissions on the merits
of the complaint. He submitted that under clause (ii) of sub-section (2) of
Section 61 of FERA, cognizance of the offence punishable under Sections
56 and 57 could be taken by a Court only on a complaint in writing made by
an officer specified under sub-clauses (a) to (c) of clause (ii) of sub-section
424          SUPREME COURT REPORTS                        [2023] 12 S.C.R.


(2) of Section 61 of FERA. He submitted that under sub-clause (b) of clause
(ii) of sub-section (2) of Section 61, only an officer authorised in writing
on this behalf by the Director of Enforcement or the Central Government
was empowered to file a complaint. The learned senior counsel pointed out
that Section 3 of FERA provided for the appointment of different classes/
categories of officers of Enforcement. He submitted that the appointment
of officers made under Section 3 of FERA has not been saved by Section
49, which is a saving and repealing provision under FEMA. He submitted
that the first respondent-Enforcement Officer was appointed under clause
(e) of Section 3 of FERA and thus, with effect from 1 st June 2000, the said
officer is not empowered to exercise powers of an Enforcement Officer under
FERA as the said powers have not been saved. The learned senior counsel
submitted that assuming that cognizance is taken within the sunset period
provided under sub-section (3) of Section 49 of FEMA, in view of clause
(ii) of sub-section (2) of Section 61 of FERA, only an authorised officer
could have filed the complaint and in the facts of the case, the Enforcement
Officer who may have been authorised earlier, cannot perform duties of his
office as from 1st June 2000, he ceased to be an Enforcement Officer. He
would, therefore, submit that the Court was powerless to take cognizance
of the complaint which was filed by an officer who was not authorised.
      4. Ms. Aishwarya Bhati, the learned Additional Solicitor General
appearing for the respondents, submitted that sub-section (4) of Section 49
of FEMA is a complete answer to the submissions made by the learned senior
counsel appearing for the appellants. She submitted that the Enforcement
Officer appointed under FERA continued to have the authority or competence
to file a complaint for the offences punishable under FERA before the expiry
of the sunset period provided in sub-section (3) of Section 49 of FEMA.
      CONSIDERATION OF SUBMISSIONS
      5. As can be seen from the statement of objects and reasons of FEMA,
the legislature noticed that after 1993, there were significant developments,
such as a substantial increase in foreign exchange reserves of our country,
growth in foreign trade, rationalisation of tariffs, liberalisation of Indian
investment abroad, increased access to external commercial borrowings by
Indian corporates and participation of foreign investors in the stock market.
Keeping in view the entirely changed environment, by repealing FERA,
    FIRST GLOBAL STOCKBROKING PVT. LTD. v. ANIL                        425
             RISHIRAJ [ABHAY S. OKA, J.]

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. A perusal of the
provisions of FEMA shows that there is a difference between its scheme
and the scheme of FERA. There are elaborate provisions for penalty under
Chapter IV of FEMA, and the penal provision is confined to sub-section
(1C) of Section 13 of FEMA. Whereas Section 56 and Section 57 of FERA
were more stringent in the sense that they covered a very large category of
violations.
     6. The procedure for taking cognisance of the offences punishable
under Sections 56 and 57 was provided in Section 61 of FERA. Section
61 reads thus:
     “61. Cognizance of offences.–
     (1) Notwithstanding anything contained in section 29 of the Code
     of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for any
     metropolitan magistrate and for any magistrate of the first class to
     pass a sentence of imprisonment for a term exceeding three years or
     of fine exceeding five thousand rupees on any person convicted of an
     offence punishable under section 56.]
     (2) No court shall take cognizance–
           (i) of any offence punishable under sub-section (2) of section 44
           or subsection (1) of section 58,-
                (a) where the offence is alleged to have been committed
                by an officer of Enforcement not lower in rank than an
                Assistant Director of Enforcement, except with the previous
                sanction of the Central Government;
                (b) where the offence is alleged to have been committed by
                an officer of Enforcement lower in rank than an Assistant
                Director of Enforcement, except with the previous sanction
                of the Director of Enforcement; or
           (ii) of any offence punishable under section 56 or section 57,
           except upon complaint in writing made by-
                (a) the Director of Enforcement; or
426              SUPREME COURT REPORTS                       [2023] 12 S.C.R.


                      (b) any officer authorised in writing in this behalf by the
                      Director of Enforcement or the Central Government; or
                      (c) any officer of the Reserve Bank authorised by the
                      Reserve Bank by a general or special order:
            Provided that where any such offence is the contravention of any
      of the provisions of this Act or of any rule, direction or order made
      thereunder which prohibits the doing of an act without permission, no
      such complaint shall be made unless the person accused of the offence
      has been given an opportunity of showing that he had such permission.”
                                                             (emphasis added)
      7. 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 sub-clauses (a) to
(c) of clause (ii) of sub-section (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 sub-clause (b) of clause (ii) of
sub-section (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.
      8. Now, we turn to Section 49 of FEMA under the heading “Repeal
and Saving”. As noted earlier, sub-section (1) of Section 49 repealed the
provisions of FERA. Sub-sections (3) to (5) deal with ‘savings’, which read
thus:
      “49. Repeal and saving.–
      (1) .. .. .. .. .. .. .. .. .. .. .. .. ..
      (2) .. .. .. .. .. .. .. .. .. .. .. .. ..
      (3) Notwithstanding anything contained in any other law for the
      time being in force, no court shall take cognizance of an offence
      under the repealed Act and no adjudicating officer shall take notice
      of any contravention under section 51 of the repealed Act after the
      expiry of a period of two years from the date of the commencement
      of this Act.
    FIRST GLOBAL STOCKBROKING PVT. LTD. v. ANIL                         427
             RISHIRAJ [ABHAY S. OKA, J.]

     (4) Subject to the provisions of sub-section (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.
     (5) Notwithstanding such repeal,–
           (a) anything done or any action taken or purported to have been
           done or taken including any rule, notification, inspection, order
           or notice made or issued or any appointment, confirmation or
           declaration made or any license, permission, authorization or
           exemption granted or any document or instrument executed or
           any direction given under the Act hereby repealed shall, in so
           far as it is not inconsistent with the provisions of this Act, be
           deemed to have been done or taken under the corresponding
           provisions of this Act;
           (b) any appeal preferred to the Appellate Board under sub-section
           (2) of section 52 of the repealed Act but not disposed of before
           the commencement of this Act shall stand transferred to and shall
           disposed of by the Appellate Tribunal constituted under this Act;
           (c) every appeal from any decision or order of the Appellate
           Board under sub-section (3) or sub-section (4) of section 52 of
           the repealed Act shall, if not filed before the commencement of
           this Act, be filled before the High Court within a period of sixty
           days of such commencement:
           Provided that the High Court may entertain such appeal after
     the expiry of the said period of sixty days if it is satisfied that the
     appellant was prevented by sufficient cause from filing the appeal
     with the said period.”
                                                         (emphasis added)
      9. From the impugned judgment, it appears that the submissions
were made on behalf of the appellants that the word “and” in sub-section
(3) must be read as “or”, and therefore, there is a bar on taking cognizance
of the offence under FERA after the repeal of FERA. The High Court has
elaborately and eruditely dealt with this argument. However, that need not
428          SUPREME COURT REPORTS                          [2023] 12 S.C.R.


detain us as the submissions made before this Court proceed on the footing
that there is a sunset period available of two years as provided in sub-section
(3) of Section 49 of FEMA for filing complaints alleging the commission
of offences punishable under Sections 56 and 57 of FERA and for taking
cognizance thereof.
      10. In the facts of the case, the cognizance was taken by the learned
Magistrate within the sunset period of two years provided under sub-section
(3) of Section 49 of FEMA.
       11. We have perused the complaint filed by the first respondent. The
complaint has been filed by the first respondent, who was, at the relevant
time, an Enforcement Officer appointed under clause (e) of Section 3 of
FERA. As noted earlier, the power under sub-clause (b) of clause (ii) of
sub-section (2) of Section 61 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, there is
no difficulty in holding that the first respondent–Enforcement Officer, was
authorised to file a complaint as provided in clause (ii) of sub-section (2) of
Section 61 of FERA. What is material here is sub-section (4) of Section 49
of FEMA, which provides that subject to the provisions of sub-section (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. Sub-
section (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 sub-section
(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 sub-section (3) of Section 49 of FEMA. That is how the complaint
filed by the Enforcement Officer, duly authorised under clause (ii) of sub-
section (2) of Section 61 of FEMA, will continue to be valid, inasmuch as
by virtue of the legal fiction incorporated in sub-section (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, during the sunset period, the
    FIRST GLOBAL STOCKBROKING PVT. LTD. v. ANIL                           429
             RISHIRAJ [ABHAY S. OKA, J.]

authorisation of the Enforcement Officers to file the complaints continues to
be valid for the limited purposes of sub-section (3) of Section 49 of FEMA.
      12. If the arguments of the appellants are accepted, the officer nominated
under sub-clause (b) of clause (ii) of sub-section (2) of Section 61 of FERA
will not be empowered to file complaints for the offences punishable under
FERA even within the sunset period of two years. Such interpretation will
prevent the Court from taking cognizance after the repeal of FERA on a
complaint filed after the repeal of FERA by an officer authorised under sub-
clause (b) of clause (ii) of sub-section (2) of Section 61 of FERA. Thus,
no complaint can be filed during the sunset period of two years provided in
sub-section (3) of Section 49 of FEMA. A Statute cannot be interpreted in
such a manner that any provision thereof is rendered otiose. Therefore, we
are unable to accept the submissions made by the learned senior counsel
appearing for the appellants. Any construction which will defeat the plain
intention of the legislature must be rejected. The Court must adopt the
interpretation which makes the provisions of a Statute workable.
      13. By FERA, the Foreign Exchange Regulation Act, 1947 (for short,
‘FERA, 1947’) was repealed. The repealing provision is provided under
sub-section (1) of Section 81 of FERA. This Court, in the case of M/s. P.V.
Mohammad Barmay Sons v. Director of Enforcement1, interpreted clause
(a) of sub-section (2) of Section 81 of FERA. Clause (a) of sub-section (2)
of Section 81 of FERA reads thus:
     “81.Repeal and saving–
     (1) .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
     (2) Notwithstanding such repeal-
             (a) anything done or any action taken or purported to have been
             done or taken (including any rule, notification, inspection, order
             or notice made or issued, or any appointment, confirmation or
             declaration made or any licence, permission, authorisation or
             exemption granted or any document or instrument executed or
             any direction given or any proceedings taken or any confiscation



1   1993 Supp (2) SCC 724
430              SUPREME COURT REPORTS                            [2023] 12 S.C.R.


              adjudged or any penalty or fine imposed) under the Act hereby
              repealed shall, in so far as it is not inconsistent with the provisions
              of this Act, be deemed to have been done or taken under the
              corresponding provisions of this Act;
              (b) .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..;
              (c) .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..;
              (d) .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..:
      (3) .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..”
      The issue before this Court was about the power of the authorities
under FERA to investigate and enforce liability and penalty incurred under
FERA, 1947, after its repeal. In paragraphs 7 to 9 of the aforesaid decision,
this Court held thus:
      “7. Shri Tulsi, the learned Additional Solicitor General placing reliance
      on O. Abdul Aziz v. Addl. Director of Enforcement [AIR 1983 Mad
      59:(1982) 2 MLJ 359] and A.K.L. Labbai Thambi Maraicar v. Govt.
      of India, Enforcement Directorate [AIR 1983 Mad 102:(1982) 2
      MLJ 59] contended that in view of Section 81(2) of the Act read with
      Section 6 of the General Clauses Act, the power of the respondents
      to investigate and enforce the liability or penalty incurred under the
      Repealed Act is saved, though the Act 7 of 1947 has been repealed
      under sub-section (2) of Section 81 of the Act. The contention of the
      respondent is that the Repealed Act, after the Act had come into
      force in 1973, is a dead corpse and no life into it could be blown
      with the aid of Section 81(2) of the Act or Section 6 of the General
      Clauses Act. We find no force in the contention. The effect of the
      repealed Act by operation of clause (e) of Section 6 of the General
      Clauses Act read with sub-section (2) of Section 81 is that, though
      the Act obliterates the operation of Act 7 of 1947, despite its repeal,
      the penalty, liability, forfeiture or prosecution for acts done while
      the repealed Act was in force were kept alive, though no action
      thereunder was taken when the Repealed Act was in force. The
      rights acquired or accrued or the liabilities incurred or any penalty,
      forfeiture or punishment incurred during its operation are kept
FIRST GLOBAL STOCKBROKING PVT. LTD. v. ANIL                          431
         RISHIRAJ [ABHAY S. OKA, J.]

alive. Investigations to be made or any remedy which may have
been available before the repeal be enforced are also preserved.
Such rights, liabilities, penalty, forfeiture or punishment, due to
repeal “shall not lapse”. The saving clause, thus, aimed to preserve
the legal effect and consequences of things done though those effects
and consequences projected to post-repeal period. The things done
adumbrated in Section 81(2) or Section 6 of the General Clauses
Act or penalty or punishment incurred would envisage that the
things already done or liabilities, penalty punishment or forfeiture
incurred, though happened before the Act came into force, Section
81(2) of the Act empowers to effectuate the liabilities, penalties,
etc. as if they have been in existence and amenable to be pursued
under the Act or under the Repealed Act by operation of Section
6 of General Clauses Act. What is unaffected by the repeal of the
Act 7 of 1947 is a right accrued, etc. There is a distinction between a
legal proceeding for enforcing a right acquired or accrued or liability,
penalty, forfeiture, punishment incurred and the legal proceedings for
acquisition of a right, the former is saved whereas the latter is not. In
spite of repeal the right to investigation or to take legal proceedings
remain unaffected and preserved as if the old Act continues to be
operative. What remains to be done, after the Act came into force,
is the quantification, if necessary, after due investigation and legal
proceedings and if proved to impose the penalty, forfeiture or
punishment. The Court takes cognizance of the offence and not
the offender or the acts done. What the Court is to enquire into is
whether the Act is incompatible with the repealed Act and whether
it manifested any contrary intentions to the Repealed Act. Unless
a different intention has been manifested in the Act, the Repealed
Act would continue to be operative. Even in a case of bare repeal
accompanied by a fresh legislation on the same subject, the provisions
of the new Act will have to be looked into to find where and how far
the new Act envisages a contrary intention affecting the operation of
Section 6 of the General Clauses Act. Unless such contrary intention
is manifested, liabilities, penalties, forfeiture or punishment under the
Repealed Act will continue to exist and remain in force by operation
of Section 6 of the General Clauses Act.
432            SUPREME COURT REPORTS                        [2023] 12 S.C.R.


      8. We have already seen that the Act did not evince any contrary
      intention. It merely reiterated the earlier law operating in the field.
      Therefore, clause (d) of Section 6 of the General Clauses Act
      gets attracted to the acts done or the penalties of forfeiture or
      punishment for any offence which had already been committed
      before the repeal of the enactment, though no criminal proceedings
      have been actually initiated under repealed enactment before its
      repeal.
      9. In Tiwari Kanhaiyalal v. CIT [(1975) 4 SCC 101 : 1975 SCC (Tax)
      214:1975 SCC (Cri) 312] where prosecution was laid after the repeal of
      the Income Tax Act, 1922, the contention raised was that saving clauses
      in Section 297 of 1961 Income Tax Act did not save the punishment
      incurred under the Repealed Act, therefore, recourse to Section 6 of
      General Clauses Act cannot be had, was negatived by this Court and
      it held that the repeal had not affected the liability incurred under
      Section 52 of the Income Tax Act, 1922 and it continued even after
      its repeal. The same view was reiterated in CIT v. M/s Shah Sadiq &
      Sons [(1987) 3 SCC 516, 524:1987 SCC (Tax) 270]. Accordingly, we
      hold that despite repeal of Act 7 of 1947 by operation of Section 6 of
      the General Clauses Act read with Section 81(2), the penalty incurred
      by the appellant continued to subsist and the respondents are entitled
      to institute the proceedings, conduct investigation or enquiry and
      impose such penalty.”
                                                            (emphasis added)
      14. Hence, the view taken by us in earlier paragraphs is fortified by
the above decision.
      15. The appeal fails, and the same is, accordingly, dismissed. As the
complaint remained stayed from 7th January 2011, we direct the Trial Court
to give necessary out-of-turn priority to the disposal of the complaint bearing
CC.No.14/CW/2002, which is the subject matter of this appeal.

Headnotes prepared by:                                          Appeal dismissed.
Ankit Gyan