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TMI Blog2018 (6) TMI 1086X X X X Extracts X X X X X X X X Extracts X X X X ..... aching and the consequences of an investigation by the DG so drastic, it would necessary that the right of a party/person to be accompanied by an advocate during the investigations by the DG, when the latter is collecting or recording evidence, not be taken away. Since the DG’s powers are so far-reaching and the consequences of an investigation by the DG so drastic, it would necessary that the right of a party/person to be accompanied by an advocate during the investigations by the DG, when the latter is collecting or recording evidence, not be taken away. The DG shall ensure that the counsel does not sit in front of the witness; but is some distance away and the witness should be not able to confer, or consult her or him. The Court does not deem it necessary or appropriate to say more on this aspect of the matter, leaving it to the Commission to decide the appropriate course. Appeal dismissed. - LPA 607/2016, C.M. APPL.41020/2016 - - - Dated:- 24-5-2018 - MR. S. RAVINDRA BHAT AND MR. SANJEEV SACHDEVA, JJ. For The Appellants : Sh. Prashanto Sen, Sr. Advocate with Sh. Balaji Subramanian, Sh. Udayan Verma and Sh. Siddharth Nath, Advocates. For The Respondent : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.06.2015 for inspection of records of the case. 5. On 18.06.2015, the DG, in furtherance of the Notice dated 27.05.2015 rectified certain requirements of the said Notice and issued a show cause notice seeking explanation from the Respondent as to why their acts and conduct should not be treated in contravention of Section 3 of the Act. The DG, keeping in mind adherence to strict timeline, refused to grant extension of time to the Respondent for submission of remaining information/details. The Respondents were directed to submit the information/details latest by 30.06.2015. 6. Request for inspection of records was subsequently made again on behalf of the Respondent on 23.06.2015. On 30.06.2015, the CCI replied to the Respondent s request letters dated 23.06.2015 for inspection of record stating that the information of the case file was confidential and the application for inspection could not be allowed. The Respondent on 13.08.2015 vide letter to the CCI stated that it had submitted all the relevant data that was available with them in connection with the investigation as required by the DG. 7. It transpires from the record that the DG subsequently called for further inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or person. Where the advocate has a right to appear before an authority or a person, that right can be denied by a law that may be framed by the competent Legislature. Thus, the right to practice is not an absolute right which is free of restriction and is without any limitation . On the strength of this decision, he contended that the right to practice under Section 30 of the Advocates Act, 1961 was not an unqualified right and it may be restricted by law for the time being in force. 10. Turning to the provisions of the Competition Act, learned senior counsel contended that the Act impliedly prohibits advocates from appearing before the DG in as much as Section 35 of the Act as well as the Competition Commission of India (General) Regulations, 2009 specifically provide for representation by a legal representative before the Commission; however, no such stipulation was made for representation before the DG during investigations. 11. The learned senior counsel further contented that under Section 41(2) of the Act, before the DG, the stage is that of investigation and not an enquiry, the latter being adjudicatory in nature. The counsel placed reliance on the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate would accompany the person called for investigation, as it would become difficult to obtain full and accurate information. Further, it is contended that the Learned Single Judge fell into error in holding that the decision in the Poolpandi (supra) was inapplicable because it was rendered before the Advocates Act came into force. Placing reliance on the decision of the Supreme Court in Senior Intelligence Officer vs. Jugal Kishore Samra , (2011) 7 SCR 889, it is contended that the said decision reaffirmed the applicability of the law declared by the Supreme Court in Poolpandi (supra) . Reliance is also placed on a recent decision of the Gujarat High Court in JigneshKishorbhaiBhajiawala v. State of Gujarat , 2017 Cri. L.J. 1760, where the Court held: What is discernible from the decision of the Supreme Court in the case of Poolpandi (supra) is that whenever a person is called upon for questioning during investigation by the authorities under the provision of the Customs Act, he is not accused. He cannot, therefore, claim that in view of the possibility of his being made an accused in future, he is entitled to the presence of a lawyer when he is questioned. Refusal to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or if the Director General has not given sufficient opportunity to the party to adduce evidence, the Commission, for reasons to be recorded, may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced. 14. It was argued that the learned Single Judge s reliance on the decision of this Court in Google Inc. v. Competition Commission of India , 2015 (150) DRJ 192 is warranted. It is urged that Google Inc. (supra) is authority for the proposition that the investigation by DG is equivalent to commencement of trial/inquiry on the basis of an ex-parte prima facie opinion. Since the DG s powers under the Act are of widest amplitude and the consequences far-reaching, and that an investigation by the DG commences the trial/inquiry, it is, therefore, necessary that a person called for investigation by the DG has the right to be accompanied by counsel. The senior counsel also relied on the Competition Appellate Tribunal s (COMPAT) decision in Lafarge India Limited v. Competition Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by or under any law for the time being in force entitled to practice . 18. Interpreting Section 30 of the Act, the Karnataka High Court in M/s. Kothari Industrial Corporation Limited v. The Coffee Board, 1999 (5) Kar LJ 302, held: The right of an Advocate to practise before any Court or Tribunal is closely related to the right of his client to engage him for appearance before any such Court or Tribunal. Stated conversely, the right of a litigant to be represented by a Counsel is circumscribed by the right of the Advocate to appear before such Court, Tribunal, Authority or person. If the Advocate has in terms of Section 30 of the Advocates Act, 1961, the right to practise before any Court, Tribunal, Authority or person, it would necessarily mean that a litigant before any such Court, Tribunal, authority or person will have a right to engage and avail of the services of an Advocate . Therefore, Section 30 provides a right both to the advocate to the practice, and to the litigant to engage the services of an advocate. Doubtlessly however, as the Supreme Court has held in Poolpandi (supra) and Jugal Kishore Samra (supra) , this right is not absolute and a legislation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersuade this Court. The right of practice of an advocate and the right of a litigant to engage the services of an advocate being firmly entrenched in the Advocates Act and through the Constitution, restrictions on such a right must be clearly spelt out in the legislation. In the absence of such express stipulation, this Court cannot impliedly read in such a restriction in the statute. 20. Since competition law in our country is in a nascent stage, the Commission, COMPAT and the Supreme Court have often relied on foreign jurisprudence and the position of EU antitrust laws and US in order to interpret the provisions of the Competition Act. Adopting a similar approach, it can be seen that both the US and the EU (or EC) allow parties to be represented by legal counsels at the investigation stage as well. For instance, in the U.S., 15 U.S.C. 1312 deals with the procedure to be adopted in Civil Investigative Demands in antitrust investigations. 15 U.S.C. 1312(i)(7)(A) provides: Any person compelled to appear under a demand for oral testimony pursuant to this section may be accompanied, represented, and advised by counsel. Counsel may advise such person, in confidence, either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itnesses are being also permitted to be cross examined including by the informant/claimant and which evidence as part of the report of the DG forms the basis of further proceedings before the CCI. Thus while in investigation by Police under the Cr.P.C., the rule of audi alteram partem does not apply, there is no such embargo on the DG, CCI . Thus, investigation by DG, CCI is tantamount to commencement of trial/inquiry on the basis of an ex parte prima facie opinion . 22. Since the DG s powers are so far-reaching and the consequences of an investigation by the DG so drastic, it would necessary that the right of a party/person to be accompanied by an advocate during the investigations by the DG, when the latter is collecting or recording evidence, not be taken away. This Court, therefore, finds that the Learned Single Judge s reliance on Google (supra) as well as the decision in Punjab National Bank (supra) , to hold that when the consequences of an enquiry or investigation are severe and drastic, the right of a person to be accompanied or represented by an advocate cannot be extinguished, stands to reason and cannot be faulted with. 23. At the same time, this Court is ali ..... X X X X Extracts X X X X X X X X Extracts X X X X
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