9911796707
TMI Blog2007 (5) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... had been entered into by the petitioner with Flavio Briatore of Benetton Formula Ltd., London. The complainant had required the petitioner s presence on 27-9-1998, 8-11-1999 and 26-11-1999. The complaint alleged that the petitioner accused failed to comply with the summons on different pretext despite their service. It was also alleged that Summons dated 21-12-1999 was issued in connection with the impending investigation for appearance of the petitioner on 3-1-2000 but it was returned back by the postal authorities with the remarks "refused". On the strength of the averments, it was alleged that the accused-petitioner had intentionally avoided appearing before the Enforcement Directorate knowing fully well that non-compliance with such directions rendered him for prosecution under section 56 i.e., a non-bailable offence. 3. In support of the complaint, seven prosecution witnesses were apparently examined; various documents were also exhibited at the pre-charge stage. The Trial Court, after considering the materials and submissions on behalf of the petitioner, in the impugned order observed as follows : "I have carefully considered the arguments raised before me by both t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the explanation for non-appearance, given on 13-10-1999 was that the petitioner was away from India, which was accepted by the complainant unreservedly, leading to issuance of fresh summons. That summons, dated 8-11-1999 was acknowledged by a reply dated 22-11-1999, when the petitioner again sought exemption from appearance on 26-11-1999 as he was out of the country. It was contended that this request too was granted and the complainant nowhere stated that the explanation was not accepted. It was contended that the last summons dated 21-11-1999 could not be said to have been issued in accordance with the Foreign Exchange Rules, 1974, particularly Rule 3 as it was sent, only by "Speed-Post" not a prescribed mode. 7. Learned counsel submitted that the Court committed an error in framing the charge as did, and even, they otherwise are not in accordance with law because the order violates the mandate of section 219(1) of the Code of Criminal Procedure ( the Code ) on two counts. Firstly, the trial Court proceeded to frame four charges, contrary to the mandate that in respect of separate offences, only three charges could be framed. It was secondly contended that even, otherw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 40, FERA. The relevant part of that provision reads as follows : "Section 40(3) : All persons so summoned shall be bound to attend either in person or by authorised agents, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents as may be required." 11. The trial Court, in its discussion on the facts, noticed in para 11 of its order that the summons dated 15-9-1999, for 27-9-1999 was received on that date at 2.00 p.m. It had required his appearance on 27-9-1999 at 11.00 a.m. Yet after so recording, it proceeded and framed a charge on that count. This was clearly erroneous. 12. So far as the arguments on behalf of the petitioner with regard to overlooking of explanation for his absence, or the non-compliance with the summons are concerned, to the extent they are a matter of record, they undoubtedly merited consideration; the Trial Court did consider the two letters relied upon, by him. However, whether such explanation was justified and was correctly ignored, are issues which are the matter of defence. I find no merit in the contention u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e; ( j )makes an order under Part C or Part D of Chapter X; ( k )takes cognizance of an offence under clause ( c ) of sub-section (1) of section 190; ( l )tries an offender; ( m )tries an offender summarily; ( n )passes a sentence, under section 325, on proceeding recorded by another Magistrate; ( o )decides an appeal; ( p )calls, under section 397, for proceedings; or ( q )revises an order passed under section 446, his proceedings shall be void." "464. Effect of omission to frame, or absence of, or error in, charge. (1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or regularity in the charge including any misjoinder of charge, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may ( a )in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately aft ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
