In our opinion, the appeal is required to be
dismissed for more than one reason. The fact that the
adjudicating officer chose to drop the proceedings
against the appellant herein does not absolve the
appellant of the criminal liability incurred by him by
virtue of the operation of Section 40 read with Section
56 of the Act. The offence under Section 56 read with
Section 40 of the Act is an independent offence. If the
factual allegations contained in the charge are to be
proved eventually at the trial of the criminal case, the
appellant is still liable for the punishment
notwithstanding the fact that the presence of the
appellant was required by the adjudicating officer in
connection with an enquiry into certain alleged
violations of the various provisions of the Act, but at a
subsequent stage the adjudicating officer opined that
there was either insufficient or no material to proceed
against the appellant for the alleged violations of the
Act, is immaterial. The observations made by this
Court in Roshanlal Agarwal (supra), in our opinion,
must be confined to the facts of that case because this
Court recorded such a conclusion “having regard to
the material existing against the respondent and the
reasons and findings given in the aforesaid
orders…..”. The said case cannot be read as laying
down a general statement of law that the prosecution
of the accused, who is alleged to be guilty of an
offence of not responding to the summons issued by a
lawful authority for the purpose of either an inquiry or
investigation into another substantive offence, would
not be justified. Exonerating such an accused, who
successfully evades the process of law and thereby
commits an independent offence on the ground that
he is found to be not guilty of the substantive offence
would be destructive of law and order, apart from
being against public interest. Such an exposition of
law would only encourage unscrupulous elements in
the society to defy the authority conferred upon the
public servants to enforce the law with impunity. It is
also possible, in certain cases that the time gained by
such evasive tactics adopted by a person summoned
itself would result in the destruction of the material
which might otherwise constitute valuable evidence
for establishing the commission of a substantive
offence by such a recalcitrant accused.
Secondly, an appeal against the conclusion of the
adjudicating officer that the proceedings against the
appellant herein for the alleged violation of the various
provisions of the FERA Act are required to be dropped
has not even attained finality. Admittedly, such an
order of the adjudicating officer confirmed by the
statutory appellate authority is pending consideration
in an appeal before the High Court. Though, in our
opinion, the result of such an appeal is immaterial for
determining the culpability of the appellant for the
alleged violation of Section 40 read with Section 56,
we must record that the submission made on behalf of
the appellant in this regard itself is inherently
untenable.
For all the abovementioned reasons, we do not
see any merit in the appeal. We are also of the
opinion that the entire approach adopted by the
appellant is a sheer abuse of the process of law. Any
other view of the matter would only go to once again
establishing the notorious truth stated by Anatole
France that – “the law in its majestic equality, forbids
the rich as well as the poor to sleep under bridges, to
beg in the streets and to steal bread”.
The appeal is dismissed with exemplary costs
quantified at rupees ten lakhs to be paid to the
Supreme Court Legal Service Authority.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1406 OF 2009
VIJAY MALLYA …APPELLANT
VERSUS
ENFORCEMENT DIRECTORATE,
MIN. OF FINANCE ...RESPONDENT
Citation; JULY 13, 2015
Citation;(2015) 8 SCC799
Print Page
dismissed for more than one reason. The fact that the
adjudicating officer chose to drop the proceedings
against the appellant herein does not absolve the
appellant of the criminal liability incurred by him by
virtue of the operation of Section 40 read with Section
56 of the Act. The offence under Section 56 read with
Section 40 of the Act is an independent offence. If the
factual allegations contained in the charge are to be
proved eventually at the trial of the criminal case, the
appellant is still liable for the punishment
notwithstanding the fact that the presence of the
appellant was required by the adjudicating officer in
connection with an enquiry into certain alleged
violations of the various provisions of the Act, but at a
subsequent stage the adjudicating officer opined that
there was either insufficient or no material to proceed
against the appellant for the alleged violations of the
Act, is immaterial. The observations made by this
Court in Roshanlal Agarwal (supra), in our opinion,
must be confined to the facts of that case because this
Court recorded such a conclusion “having regard to
the material existing against the respondent and the
reasons and findings given in the aforesaid
orders…..”. The said case cannot be read as laying
down a general statement of law that the prosecution
of the accused, who is alleged to be guilty of an
offence of not responding to the summons issued by a
lawful authority for the purpose of either an inquiry or
investigation into another substantive offence, would
not be justified. Exonerating such an accused, who
successfully evades the process of law and thereby
commits an independent offence on the ground that
he is found to be not guilty of the substantive offence
would be destructive of law and order, apart from
being against public interest. Such an exposition of
law would only encourage unscrupulous elements in
the society to defy the authority conferred upon the
public servants to enforce the law with impunity. It is
also possible, in certain cases that the time gained by
such evasive tactics adopted by a person summoned
itself would result in the destruction of the material
which might otherwise constitute valuable evidence
for establishing the commission of a substantive
offence by such a recalcitrant accused.
Secondly, an appeal against the conclusion of the
adjudicating officer that the proceedings against the
appellant herein for the alleged violation of the various
provisions of the FERA Act are required to be dropped
has not even attained finality. Admittedly, such an
order of the adjudicating officer confirmed by the
statutory appellate authority is pending consideration
in an appeal before the High Court. Though, in our
opinion, the result of such an appeal is immaterial for
determining the culpability of the appellant for the
alleged violation of Section 40 read with Section 56,
we must record that the submission made on behalf of
the appellant in this regard itself is inherently
untenable.
For all the abovementioned reasons, we do not
see any merit in the appeal. We are also of the
opinion that the entire approach adopted by the
appellant is a sheer abuse of the process of law. Any
other view of the matter would only go to once again
establishing the notorious truth stated by Anatole
France that – “the law in its majestic equality, forbids
the rich as well as the poor to sleep under bridges, to
beg in the streets and to steal bread”.
The appeal is dismissed with exemplary costs
quantified at rupees ten lakhs to be paid to the
Supreme Court Legal Service Authority.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1406 OF 2009
VIJAY MALLYA …APPELLANT
VERSUS
ENFORCEMENT DIRECTORATE,
MIN. OF FINANCE ...RESPONDENT
Citation; JULY 13, 2015
Citation;(2015) 8 SCC799
