2016 (5) TMI 882 - HC - Indian Laws

Entitlement to officials of the petitioner summoned to be accompanied by the advocate(s) - case before the Competition Commission of India (CCI) under Section 26(1) of the Competition Act, 2002 wherein the petitioner was one of the opposite parties in the case related to a cartel/bid-rigging; - Held that - Section 30 of the Advocates Act confers on an advocate a right to practice inter alia before any person legally authorized to take evidence. The DG, by the Competition Act, has been legally authorized to take evidence. Once that is so, in the light of dicta aforesaid of the Division Bench in Kingfisher Airlines Limited supra, has but to be held that an advocate has a right to practice before DG and which right to practice would include accompanying a person who has been summoned before the DG for investigation. As before the Inspectors condemned or criticised, they must give the person a fair opportunity of correcting or contradicting what is said against the person. In my opinion the aforesaid is true of the role of the DG also and as a part of the duty to act fairly, DG ought to allow the officials of the petitioner summoned, if so desire, to be accompanied by Advocates. The fear of the DG of the Advocates is also not understandable. DG has full discretion to regulate its proceedings and ensure and control that the presence of the advocates does not delay its proceedings, as was the apprehension expressed. Sachs L.J., in his opinion in the aforesaid judgment observed that there must be fairplay in action though it may be flexible depending upon the situation so that the same does not result in unsuitable procedures . It was also noted that many men have deep rooted fear of becoming involved as defendants in actions arising out of their depositions and that it is difficult to even persuade a citizen to give evidence in road accident cases and that the Inspectors must in public interest take into account the fears of potential witnesses. Buckley L.J. in his opinion in the said judgment held that fair treatment required the Inspectors to give to persons being investigated the material against him and must put to him their proposed conclusions therefrom to give him fair opportunity to explain. The objection of the respondent CCI/DG, to the officials of the petitioners summoned by the DG being accompanied with an advocate is thus overruled and it is declared that the officials of the petitioner summoned by the respondent shall be entitled to be accompanied by the advocate(s).

Summary

Issues Involved:
1. Denial of access to documents/evidence by CCI/DG.
2. Right to cross-examine witnesses.
3. Right to be accompanied by advocates during investigation.

Detailed Analysis:

1. Denial of Access to Documents/Evidence by CCI/DG:
The petitioner, a manufacturer of rubber products, challenged the denial of access to documents and evidence by the Competition Commission of India (CCI) and the Director General (DG) during an investigation into alleged cartel/bid-rigging. The petitioner received a notice from the DG on 2nd June 2015, requesting detailed information but was not provided with the documents forming the basis of the investigation. Despite multiple requests for inspection of records, the petitioner's attempts were unsuccessful, and their application for information was rejected by the CCI on grounds of confidentiality. The petitioner argued that this denial violated the principles of natural justice under Section 36(1) of the Competition Act, as they could not present their case fairly without access to the relevant documents.

2. Right to Cross-Examine Witnesses:
The petitioner also sought the right to cross-examine witnesses whose statements were recorded by the CCI/DG. The petitioner cited Regulation 41(5) of the Competition Commission of India (General) Regulations, 2009, which provides for a right of cross-examination. The respondents contended that the right to cross-examine was discretionary and could be sought before the CCI after the DG submitted the report. The court, in the case of Forech India Ltd., had previously ruled that the petitioner should be given an opportunity to cross-examine witnesses whose oral statements pertained to the petitioner and that all relevant documents should be furnished before the statement of the petitioner's representatives was recorded.

3. Right to be Accompanied by Advocates During Investigation:
The petitioner argued for the right of their officials to be accompanied by advocates during the investigation by the DG. The respondents opposed this, citing precedents under economic offence laws like FERA and Customs Act, where individuals summoned for investigation do not have the right to be accompanied by lawyers. The petitioner relied on Section 30 of the Advocates Act, 1961, which confers the right to practice before authorities competent to take evidence. The court, referencing the Google Inc. case and Kingfisher Airlines Limited case, upheld that the DG, empowered to take evidence, must allow the officials to be accompanied by advocates, ensuring fair treatment and adherence to principles of natural justice.

Conclusion:
The court concluded that the petitioner was entitled to inspect relevant documents and cross-examine witnesses whose statements pertained to them. Additionally, it was ruled that the officials of the petitioner summoned by the DG had the right to be accompanied by advocates during the investigation. The petition was disposed of with these directives, ensuring compliance with the principles of natural justice and fair play in the investigation process.