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TMI Blog2023 (1) TMI 947X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 CRL.M.C. 1958/2014 & CRL.M.A. 16485/2015 For the Petitioner: Mr. Harish Vaidyananthan Shankar, CGSC, Mr.Srish Kumar Mishra, Mr. Sagar Mehlawat and Mr. Alexander Mathai Paikaday, Advocates. For the Respondent: Mr. Sidharth Luthra, Sr. Advocate, alongwith Mr. Samarjit Pattnaik, Mr. Vikas Gogne, Mr. Puneet Relan and Mr. Asif Ahmed, Advocates for Respondent No.1. Mr. Vibhor Garg and Mr. Atul Sinha, Advocates for R-6. JUDGMENT 1. In this batch of 15 petitions filed under Sections 482 and 483 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') read with Section 227 of the Constitution of India, common order dated 08.01.2014, passed by the Court of learned Additional Sessions Judge - 02, Central, Delhi, affirming order dated 25.09.2012, passed by learned ACMM (Special Acts), Central, Delhi, dismissing an application for condonation of delay in filing the complaint by the petitioner agency, is under challenge. Since the issue involved in all the cases is similar, therefore, the same are being decided by this common order. 2. Brief facts of the case are as under:- (i) The Union of India through the Department of Company Affairs, Ministry of Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and others. The SFIO also filed an application under Section 473 of the Cr.P.C. for condonation of delay in filing the complaint, mainly on the ground that the time taken for obtaining sanction/permission i.e. between 26.11.2007 to 03.06.2008 be excluded for computing the limitation under the provisions of Section 469 read with Section 470(3) of the Cr.P.C. (vi) Vide order dated 25.09.2012, the learned ACMM rejected the application for condonation of delay, consequent thereto, the complaint was found to be barred by limitation, accordingly, the same was also dismissed. (vii) The petitioner/SFIO, filed revision before the revisional court which has also been dismissed in terms of the impugned order and therefore, the SFIO is in the present petitions. 3. Learned counsel appearing on behalf of the petitioner made the following broad submissions :- (i) Under the Companies Act (pre-2013 Amendment Act), the SFIO was working as a wing of the Central Government created by an executive resolution as a multi-disciplinary organisation which was investigating the criminality/corporate frauds in violation of the Companies Act by the companies and its Officers or Directors, as per mandate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment to file a complaint. The case in hand is not with respect to sanction or direction but the same relates to the compliance of a statutory provision. (vi) Without prejudice to his submissions as recorded hereinabove, he further states that it is well settled legal position that in the case of this nature, delay ought to have been condoned considering the gravity of the allegations against the respondent companies. 4. Learned counsel appearing on behalf of the petitioner further distinguished the decisions relied upon by the courts below and it has been submitted that the cases relied upon do not relate to filing of a complaint by SFIO or any person authorised by the Central Government but they relate to the power of the Registrar of Companies (hereinafter referred to as 'ROC') to file a complaint. It is for this reason, he states that the power to file complaint by the ROC will have no bearing under the facts of the present case. In addition, he has relied upon the decision of the Hon'ble Supreme Court in the case of Rohtas Industries v. S.D.Agarwal and Others (1969) 1 SCC 325 to state that the power conferred by the Central Government under Sections 235 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le placing on record a copy of the Gazette Notification dated 06.05.2005, issued by MCA, it is pointed out that in exercise of power conferred by sub-Section 1 of Section 621 of the Companies Act, the Central Government had already authorised officers for filing and conducting prosecution under the Companies Act and one of the officers so authorized was Giriraj Singh, who filed the present complaint. Therefore, when there was already an authority for him to file the complaint by virtue of Gazette Notification, it cannot be heard from SFIO that for lack of permission, SFIO could not have filed the complaint before 03.06.2008. (iii) Unlike other statues like Section 19 of the Prevention of Corruption Act and Section 132 (6) of the Central Goods and Services Tax Act, 2017, there is no such provision in the Companies Act, which prohibits courts from taking cognizance of offence in the Companies Act without necessary prior sanction. There is no embargo on the Magistrate to take cognizance without a prior sanction and therefore, exclusion of the period in obtaining so called sanction, is not permissible as per Section 470(3) of the Cr.P.C. (iv) In the present case, for all prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in the case of Anil Kumar Gupta v. Union of India 2022 SCC OnLine SC 1534, Surinder Mohan Vikal v. A.L. Chopra (1978) 2 SCC 403, and Rajiv Kumar v. Registrar of Companies NCTof Delhi (2009) 151 Comp Cas 434 (Delhi). For the purposes of drawing distinction between sanction and direction, he placed reliance on decision of the Hon'ble Supreme Court in the case of Rameshwar Bhartia v. State of Assam (1952) 2 SCC 203. 7. I have heard Shri Harish Vaidyanathan, learned CGSC appearing on behalf of SFIO and Shri Siddharth Luthra, learned senior counsel assisted by Shri Samarjit Pattanik, appearing on behalf of the respondents and perused the record. 8. It is true that the object of introduction of Section 397(3) of the Cr.P.C. is to prevent a second revision so as to avoid frivolous litigation. However, at the same time, the doors of the High Court to a litigant, who has lost before the Sessions Judge, are not completely closed and in special cases, the bar under Section 397(3) of the Cr.P.C. can be lifted. 9. The power of the High Court to entertain a petition under Section 482 of the Cr.P.C. is not subject to the prohibition under Section 397(3) of the Cr.P.C. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counting limitation in terms of Section 468 of the Cr.P.C. 13. The exclusion of the said period is sought on the strength of the provisions of Sections 469 & 470(3) of the Cr.P.C. Before proceeding further, it would be appropriate to refer certain provisions of the Cr.P.C. and of the Companies Act which are being reproduced as under:- (i) Sections 468 to 470 of the Cr.P.C. are being reproduced as under: 468. Bar to taking cognizance after lapse of the period of limitation. (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub- section (2), after the expiry of the period of limitation. (2) The period of limitation shall be- (a) six months, if the offence is punishable with fine only (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years. (3) 1 For the purposes of this section, the period of limitation in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority shall both be excluded. (4) In computing the period of limitation, the time during which the offender- (a) has been absent from India or from any territory outside India which is under the administration of the Central Government, or (b) has avoided arrest by absconding or concealing himself, shall be excluded. 14. Sections 242 and 621 of the Companies Act are also reproduced as under:- 242. Prosecution. - (1) If, from any report made under section 241, it appears to the Central Government that any person has, in relation to the company or in relation to any other body corporate, managing agent, secretaries and treasurers or associate of a managing agent or secretaries and treasurers, whose affairs have been investigated by virtue of section 239, been guilty of any offence for which he is criminally liable, the Central Government may, after taking such legal advice as it thinks fit, prosecute such person for the offence; and it shall be the duty of 5 all offices and other employees] and agents of the company, body corporate, managing agent, secretaries and treasurers, or associate, as the case may be (other than the accused in the proceedings), to give the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it shall be the duty of all officers and other employees and agents of the company, or body corporate, other than the accused in the proceedings, to give the Central Government all assistance in connection with the prosecution which they are reasonably able to give. 16. It is thus, seen that the Central Government is well within its power to prosecute such person for the offence in relation to the company or in relation to any other body corporate whose affairs have been investigated by virtue of Section 239. There is no hurdle for the Central Government to prosecute such person if it appears to the Central Government that such person is guilty for any offence for which he is criminally liable. It is the discretion of the Central Government to take legal advice as it thinks fit. 17. Section 621 of the Companies Act provides for the procedure as to how, the prosecution would be initiated. It is provided under Sub-Section 1 of Section 621, that no court shall take cognizance of any offence against the Companies Act which is alleged to have been committed by any company or any officer thereof, except on the complaint in writing of the Registrar or of a shareholder of the company or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005 is also reproduced as under: MINISTRY OF COMPANY AFFAIRS NOTIFICATION New Delhi, the 6th May 2005 G.S.R. 284(E)- In exercise of the powers conferred by the sub-Section(1) of Section 621 of the Companies Act, 1956 (1 of 1956), the Central Government hereby authorise the following officers in the Serious Fraud Investigation Office (SFIO), Ministry of Company Affairs for the purposes of filing and conducting prosecution under the Companies Act, 1956 1. Shri B.S. Negi Assistant Director 2. Shri K.S. Nagar Assistant Director 3. Shri Mohan Singh Assistant Director 4. Shri Sandeep Agarwal Assistant Director 5. Shri M.O. Roy Assistant Director 6. Shri V.P. Verma Assistant Director 7. Shri Dinesh Kumar Assistant Director 8. Shri Sanjeev Kumar Gaur Assistant Director 9. Shri Rabi Barun Assistant Director 10. Shri Girraj Singh Assistant Director 11. Shri R.K. Bakshi Assistant Director 12. Shri G. Ram Mohan Roa Assistant Director 13. Shri Amit Mittal Assistant Director 14. Shri S.C. Sarsonia Assistant Director 15. Shri Pramod Beri Assistant Director [F.No. 3/5/2004/CL.V] JITESH KHOSLA. Jt. Secy. 22. It is therefore seen that the officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppropriate government. It has been further held that "consent" or "sanction" envisaged under Section 470 of the Cr.P.C. cannot be equated with the "order" or "authority" for the purpose of finding the complaint as envisaged by Sub Section 3 of Section 13 of the Official Secret Act. 25. A similar view has been taken by the learned Single Judge of the High Court of Madras in the case of Govind Rajan (supra) and in paragraph No.10 of the said decision, wherein it has been held that to prosecute a person for offence under Section 629(A) of the Companies Act, neither any "consent" nor any "sanction" from the Central Government is required. It has further been held that it may be true that on the administrative side, permission is obtained from the Central Government to launch prosecution, but that permission cannot be equated to a "consent" or "sanction" to be obtained statutorily referred to under Sub Section 3 of Section 470 of the Cr.P.C. 26. It is therefore, in the considered opinion of this court that the period between 26.11.2007 to 03.06.2008 cannot be excluded for the purpose of counting limitation for filing of the complaint. Any other interpretation would result in adding w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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