Ram Sewak Mathuria vs State of Bihar

Navin Sinha, J.—Heard learned Counsel for the Petitioner and the learned Counsel appearing for the State of Bihar.

The present application has been filed for quashing the entire proceedings arising out of Katihar Railway P.S. Jogbani P.S. Case No. 3/2000 dated 12.1.2000 wherein cognizance has been taken under Sections 56 and 27 of the Foreign Exchange Regulation Act read with Sections 181 and 414 of the Indian Penal Code by an order dated 22.1.2001.

Learned Counsel Shri N.K. Agrawal appearing on behalf of the Petitioner assailed the entire proceedings as also the order of_cognizance. It was submitted that the prosecution has been initiated contrary to law and the order of cognizance is vitiated by non-application of mind. In support of this contention he submits that Section 27 of the Foreign Exchange Regulation Act was repealed on 8.1.93 while the present prosecution has been initiated on 12.1.2000 under the repealed provision. It is next contended that the Petitioner is sought to be prosecuted u/s 56 pie Foreign Exchange Regulation Act for allegedly substantive offence u/s 13. Proceedings for penalty for the alleged offence u/s 56 is regulated by Section 61 of the aforesaid Act. option 61 dealing with the cognizance of offence under Sub-clause (2) contended a clear intent in Sub-clause (ii) that no Court shall take cognizance of an offence punishable u/s 56 except upon a complaint in writing made either by the Director of Enforcement or any officer authorised in writing in this behalf by the Director of Enforcement for the Central Government or any officer of the Reserve Bank authorised by the Reserve Bank by a general or special order. Learned Counsel submits that the present prosecution has admittedly been initiated by the Officer Incharge of GRP Railways PS Jogbani.

Learned Counsel for the Petitioner further contended that the FIR read as it is do not disclose any offence u/s 182 or 414 of the Penal Code so as to justify the order of cognizance there under.

A counter affidavit has been filed on behalf of the State, it is not in dispute in the counter affidavit that Section 27 stood repealed on 8.1.93. Likewise it is not in dispute that the prosecution was initiated by the Officer Incharge of the GRP and not by any authority competent to do so u/s 61. It is not even the contention in the counter affidavit that the prosecution was initiated nonetheless on any authorisation made u/s 61(2)(ii)(b).

Learned Counsel for the State is also not in a position to substantiate from the counter affidavit to justify the order of cognizance under Sections 182 and 414 of the Indian Penal Code.

Having considered the rival submissions of the Counsel for the parties this Court holds that the impugned prosecution and the order of cognizance dated 22.1.2001 are not sustainable in law. The very fact that the prosecution was initiated and cognizance taken under a repealed provision is per se evidence of the fact that there has been complete non-application of mind both by the prosecuting agency and the Court below while passing the impugned order of cognizance. Further more in view of the clear bar u/s 61 of the Foreign Exchange and Regulation Act the impugned order of cognizance and the initiation of the prosecution itself are clearly barred by law except in the manner prescribed. The prosecution having been initiated in the manner contrary to that prescribed it cannot be sustained and is therefore to be set aside. For the said reasons the impugned prosecution under the Foreign Exchange and Regulation Act and the order of cognizance are accordingly quashed and set aside.

In so far as the applicability of Section 182 and 414 of the Penal Code be concerned, a bare perusal of the said two provisions would reveal that the FIR does not even contain the basic ingredient to create an offence under the two provisions. Section 182 deals with furnishing of false information to a public servant and Section 414 deals with assisting in concealment of stolen property. The FIR read as it is on the face of it does not contain any such allegation which can even remotely suggest offence under the aforesaid two provisions. The prosecution of the Petitioner under the aforesaid sections of the Penal Code is also not sustainable and the same is accordingly quashed.

In the result, this application succeeds and the prosecution of the Petitioner in Jogbani PS Case No. 3/2000 is accordingly quashed.