Case at a Glance
A FERA complaint filed in 2002 over banker’s cheques routed through a Mumbai account in the early 1990s had not moved beyond service of summons for over two decades. The Bombay High Court refused to quash it, holding a Section 482 petition not maintainable because a revision was available. The Supreme Court held that the availability of revision does not bar the High Court’s inherent power; that the opportunity notice under the proviso to Section 61(2) of FERA is mandatory and the prosecution never proved it was served; and that the complainant’s want of diligence had left the case adrift. The complaint and summoning order were quashed against the bank and its officer.
Banker’s cheques and drafts, allegedly procured through proxy purchasers for a UK-based beneficiary, were routed through the Vostro account of Standard Chartered Bank’s London office at its Mumbai branch and credited for the benefit of a non-resident company. The bank reversed the credits, blocked ₹30,00,000 and surrendered it by a pay order dated 6 January 1993 under Section 33(2) of FERA. On 30 May 2002 a complaint under Sections 56(1) and 73(3) of FERA, 1973 was filed against the bank and an officer of its Manchester bills department, and summons were issued the same day.
Summons were not collected for almost two years; from 2004 to 2012 they went unserved, and the complainant took no steps until 28 May 2012. The appellants’ Section 482 CrPC petitions were dismissed by the Bombay High Court on 22 March 2012 as not maintainable because a revision under Section 397 was available; the High Court called the delay “indeed deplorable” but directed the trial to finish within a fixed time, later extended to six months.
The Key Question Before the Court
Does an available revision bar a Section 482 quashing petition against a summoning order, and can a FERA prosecution survive when the prosecution cannot show that the mandatory opportunity notice under Section 61(2) was served?
Three grounds, one result: inherent power, a missing notice and a stalled case
On maintainability, the Court followed Dhariwal Tobacco Products Ltd. v. State of Maharashtra, Prabhu Chawla v. State of Rajasthan and Akanksha Arora v. Tanay Maben: issuing summons is not an interlocutory order, and the High Court’s inherent power is not ousted because revision is available — “the only limitation upon its exercise being one of self-restraint.” The High Court “erred in treating” revision as the threshold, and its remarks on delay were “in continuation of, and not in substitution for” that error. On the merits, drawing on Devashis Bhattacharya v. Union of India, Sanjay Malviya v. R.K. Rawal, United India Airways Ltd. v. Chief Enforcement Officer and Shilpi Modes v. Directorate of Enforcement, the Court held that “the service of an opportunity notice under the proviso to Section 61(2) of FERA is a mandatory requirement,” with the burden on the prosecution at the threshold.
The complaint merely asserted that a notice had been served — no date, no copy, no proof — and the department never produced it despite being allowed to file additional documents in 2015; the Magistrate recorded no satisfaction. The cognizance order therefore “cannot be sustained in law.” On speedy trial, the Court applied Abdul Rehman Antulay v. R.S. Nayak, (1991) 12 SC CK 0006, P. Ramachandra Rao v. State of Karnataka and Kailash Chandra Kapri v. State of Uttar Pradesh, asking first who was responsible for the delay. The record showed the complainant did not collect summons for years and declined to act even after the High Court’s directions, conduct that “reflects a want of diligence and unwillingness to prosecute.”
What the Court Actually Held
- The availability of a revision under Section 397 CrPC does not bar a petition under Section 482 against a summoning order; the High Court erred in dismissing the petitions as not maintainable.
- The opportunity notice under the proviso to Section 61(2) of FERA is mandatory, and the prosecution must show at the threshold that it was issued and served; without it, cognizance cannot stand.
- The complainant’s prolonged inaction, with the case stuck at the summons stage for over two decades, made this a fit case for the inherent power.
- The complaint in Criminal Case Nos. 1503–1504 of 2002 and the summoning order of 30 May 2002 were quashed against the appellants only; the Registry was directed to circulate the judgment to every High Court.
Why This Judgment Matters
- It reaffirms that High Courts cannot turn away Section 482 petitions merely because a revision lies.
- It confirms that the FERA opportunity-notice safeguard is a condition precedent to prosecution, relevant to the residual FERA cases still pending.
- It shows the Antulay framework at work: prosecutorial inaction, not the accused’s conduct, decided the delay question.
What Should Advocates Take Away From the Judgment?
For Accused Persons
- If you were never given a chance to show permission under FERA, demand proof of the opportunity notice — the burden is on the prosecution.
- Decades of complainant inaction can support quashing under the inherent power.
For Counsel
- Do not accept a maintainability objection based on the revision remedy; cite Dhariwal Tobacco and this judgment.
- Check whether the Magistrate recorded satisfaction about the Section 61(2) notice before taking cognizance.
- Build a detailed delay chronology showing who caused each stage of delay.
Key Takeaways
- Section 482 remains available against summoning orders even where revision lies.
- Under FERA, an opportunity notice under the proviso to Section 61(2) is mandatory before a complaint.
- A bare assertion in the complaint that notice was served is not proof.
- The 2002 FERA case against Standard Chartered Bank and its officer was quashed.
Frequently Asked Questions
What is the opportunity notice under Section 61(2) of FERA?
Before a complaint for an act done without permission, the proviso requires the accused to be given an opportunity of showing that it had permission. The Court held this mandatory, with the prosecution bearing the burden to prove it.
Can a High Court refuse a quashing petition because revision was available?
No. Following Dhariwal Tobacco and later cases, the Court held the inherent power is not ousted by the availability of revision; only self-restraint limits it.
Did the Court declare a violation of the right to speedy trial?
The Court examined the delay under Antulay and found the complainant lacked diligence, but the quashing rests on the inherent power, considering the missing notice, absence of documentary support and 23 years of delay together.
Conclusion
The judgment combines a procedural correction, a statutory safeguard and a speedy-trial analysis to end a prosecution that had stalled for more than two decades without the basic precondition of notice ever being proved.
Practical takeaway: In legacy FERA prosecutions, test first whether the Section 61(2) opportunity notice was ever served and proved — if not, the complaint is vulnerable at the threshold.
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