2026 INSC 727 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 2142 -2143 OF 2013

STANDARD CHARTERED BANK

…APPELLANT

VERSUS

ENFORCEMENT OFFICER

MINISTRY OF HOME AFFAIRS

& ANR.

…RESPONDENTS

J U D G M E N T

Criminal Appeal Nos. 2142-2143 of 2013 Page 1 of 34

J.B. PARDIWALA, J.:

For the convenience of exposition, this judgment is divided into the

following parts:-

INDEX

A. FACTUAL MATRIX ............................................................................... 2

B. SUBMISSIONS OF THE APPELLANT ................................................ 3

C. SUBMISSIONS OF THE RESPONDENTS ......................................... 5

D. ISSUES FOR THE DETERMINATION ............................................... 6

E. ANALYSIS ............................................................................................... 6

(I) Whether the High Court was correct in holding that the availability

of an alternative remedy of filing a revision under Section 397 of the

CrPC would operate as a bar to the maintainability of a petition

under Section 482 of the CrPC? ........................................................ 6

(II) Whether the non-compliance with the mandatory requirement of an

opportunity notice under the proviso to Section 61(2) of FERA

warrants quashing of the criminal complaints and the summoning

order issued against the appellant? ............................................... 14

(III) Whether the appellant’s fundamental right to a speedy trial under

Article 21 of the Constitution of India could be said to have been

violated in the facts and circumstances of the present case? ........ 27

F. CONCLUSION ...................................................................................... 33

Criminal Appeal Nos. 2142-2143 of 2013 Page 2 of 34

1. These criminal appeals arise from the judgment and order passed

by the High Court of Judicature at Bombay dated 22.03.2012, in

Criminal Application Nos. 182-183 of 2012, respectively, by which

the High Court declined to quash the complaint and the order

issuing summons to the appellant herein. The appellant had prayed

before the High Court to quash two complaints bearing Criminal

Case Nos. 1503-1504 of 2002 for the offence punishable under

Sections 56(1) and 73(3) of the Foreign Exchange Regulation Act,

1973 (“FERA”), respectively, on various grounds, including that of

non-compliance with the mandatory opportunity notice as required

under Section 61(2) proviso of FERA and violation of the right of

speedy trial. However, the High Court rejected the two petitions

inter alia, holding that a quashing petition under Section 482 of the

Code of Criminal Procedure, 1973 (“CrPC”) is not maintainable if

an alternate remedy of Revision is available under Section 397 of

the CrPC.

A. FACTUAL MATRIX

2. The facts of the present case are that the appellant herein,

Standard Chartered Bank, is a banking company and an

authorised dealer in foreign exchange. The accused no. 2, Ms. B.

Mchugh, serving with the Bills Department, Manchester, was the

officer in charge of and responsible for the conduct of the bank's

business. The complaints proceed against these appellant on the

allegation that they contravened the provisions of FERA in the

handling of remittances routed through the Vostro Account of

Standard Chartered Bank, London, maintained with the Mumbai

branch. The prosecution's case is that a chain of banker’s cheques

and drafts, procured in India through proxy purchasers acting at

Criminal Appeal Nos. 2142-2143 of 2013 Page 3 of 34

the instance of persons who were in fact fronting for a UK-based

beneficiary, were forwarded by the appellant’s Manchester and New

Delhi offices for collection and were credited by the appellant’s

Mumbai office for the onward benefit of Indo International

Corporation Ltd., a person resident outside India. It is the

complainant's case that the appellant bank subsequently realised

that the remittances were not in conformity with the Exchange

Control Regulations, reversed the credit entries, and blocked the

entire amount of Rs. 30,00,000/- in its own books, which was

thereafter surrendered to the respondent authorities vide Pay

Order No. 279893 dated 06.01.1993 pursuant to a directive under

Section 33(2) of FERA. In such circumstances, the appellant was

alleged to have committed an offence of unauthorised credit of an

amount of any person resident outside India, punishable under

Section 56(1) of the FERA.

3. In such circumstances referred to above, the appellant is here

before us with the present appeal.

B. SUBMISSIONS OF THE APPELLANT

4. Mr. Shyam Divan, the senior counsel appearing for the appellant,

submitted that the complaint was instituted on 30.05.2002 for a

transaction which happened in the year 1992, so as to overcome

the sunset period provided under FEMA, which would have come

to an end on 01.06.2002. He further submitted that the High Court

erred in holding that the quashing petitions under Section 482 of

the CrPC were not maintainable, as an alternate remedy of revision

under Section 397 was available in the present case. In support of

his submission, reliance was placed on the decision of Dhariwal

Criminal Appeal Nos. 2142-2143 of 2013 Page 4 of 34

Tobacco Products Ltd. v. The State of Maharashtra , reported

in (2009) 2 SCC 370, wherein this Court held that the availability

of an alternate remedy of revision under Section 397 of the CrPC

cannot be a ground to reject a petition under Section 482 of the

CrPC.

5. Mr. Divan further submitted that, as per Section 61(2) of the FERA,

no complaint with respect to an offence under Section 56 can be

lodged unless an opportunity notice is given to the proposed

accused. Referring to the facts, he submitted that in the complaint,

the complainant allegedly refers to an opportunity notice, however,

neither such opportunity notice was placed on record, nor was any

such opportunity notice ever received by the appellant. Since the

respondents have failed to comply with the mandatory requirement

of section 61(2) of FERA, the Magistrate could not have taken

cognizance on the complaint.

6. Mr. Divan further argued that the High Court failed to appreciate

that there had been a delay of 10 years in the investigation of a

criminal matter, and a further delay of 10 years in the

commencement of the trial after a complaint was filed, which

manifestly is a violation of the fundamental right to speedy trial

under Article 21 of the Constitution of India. He submitted that the

appellant is being prosecuted by the respondents in respect of a

complaint filed in 2002 for the alleged transaction, which took place

in 1991. The said complaint, which was instituted in 2002, even to

date is at the same stage as it was earlier. The allegations levelled

in the complaint are not supported by any documentary evidence.

The respondent - complainant has been unable to produce a single

document worth the name in support of the allegations levelled in

the complaint, including the said Section 61 opportunity notice.

Criminal Appeal Nos. 2142-2143 of 2013 Page 5 of 34

C. SUBMISSIONS OF THE RESPONDENTS

7. Ms. Ruchi Kohli, the senior counsel appearing for the respondents,

submitted that the observations of the High Court with regard to

Section 482 of CrPC are not directly relevant since the relevant

paragraph no. 98 of the impugned order clearly indicates that the

High Court in fact considered the quashing petition of the appellant

herein under Section 482 CrPC, despite its observations on the

invoking of Section 482 of CrPC, vis-à-vis, remedy of preferring a

revision application under Section 397 of CrPC, and rejected the

said quashing petition on the ground that the criminal complaint

need not be quashed only on the ground of delay.

8. With respect to delay, it was also submitted that it is a matter of

record that at the first instance of service of summons, the

appellant failed to appear before the Trial Court despite the service

of summons. She further submitted that the Trial Court had, for

the second time, directed the respondents to serve the appellant.

Therefore, the delay is on the part of the appellant, and not on the

part of the respondent, which also goes to show that the appellant

do not want to face the trial and are adopting various tactics to

avoid the trial. It was further submitted that violation of the right

to speedy trial under Article 21 of the Constitution would get

attracted only if there is an intentional delay on the part of the

prosecution, whereas the records of the present case show that

there is no intentional delay on the part of the department and,

therefore, Article 21 of the Constitution is not applicable.

Criminal Appeal Nos. 2142-2143 of 2013 Page 6 of 34

D. ISSUES FOR THE DETERMINATION

9. Having heard the learned counsel appearing for the parties and

having gone through the materials on record, the following

questions fall for our consideration:

(I) Whether the High Court was correct in holding that the

availability of an alternative remedy of filing a revision under

Section 397 of the CrPC would operate as a bar to the

maintainability of a petition under Section 482 of the CrPC?

(II) Whether the non-compliance with the mandatory requirement

of an opportunity notice under the proviso to Section 61(2) of

FERA warrants quashing of the criminal complaints and the

summoning order issued against the appellant?

(III) Whether the appellant’s fundamental right to a speedy trial

under Article 21 of the Constitution of India could be said to

have been violated in the facts and circumstances of the

present case?

E. ANALYSIS

(I) Whether the High Court was correct in holding that the

availability of an alternative remedy of filing a revision under

Section 397 of the CrPC would operate as a bar to the

maintainability of a petition under Section 482 of the CrPC?

10. The High Court in its impugned order rejected the quashing

petition of the appellant herein filed under Section 482 CrPC merely

on the ground that the same was not maintainable as an alternative

Criminal Appeal Nos. 2142-2143 of 2013 Page 7 of 34

remedy of filing a revision application under Section 397 of CrPC

was available. This court, in a catena of judgments, has time and

again established, reiterated and readdressed the issue pertaining

to maintainability of an application under Section 482 of the CrPC

vis-à-vis invoking of revisional jurisdiction under Section 397 read

with Section 401 of the CrPC. The present case is such that the

need to explain the issue has once again arisen.

11. In the case of Dhariwal Tobacco (supra), the appellants therein

had approached the Bombay High Court under Section 482 of the

CrPC seeking quashing of criminal proceedings instituted against

them in the State of Maharashtra concerning samples of their

products. The High Court declined to entertain the application,

taking the view that the appellants ought to have availed the

alternative remedy of preferring a revision application under

Section 397 of the CrPC. The question that thus arose for

consideration before this Court was whether an application under

Section 482 of the CrPC was liable to be dismissed on the sole

ground that an alternative remedy of revision under Section 397 of

the CrPC was available. Answering this in the negative, this Court

held that the mere availability of a revisional remedy under Section

397 of the CrPC does not, by itself, furnish a ground for dismissing

an application under Section 482 of the CrPC. This Court further

clarified that the issuance of a summons, being an order of a nature

that does not attain finality qua the rights of the parties, does not

fall within the category of an interlocutory order for the purposes of

Section 397 of the CrPC, and that a settled line of precedent of this

Court furnishes the governing criteria for invoking the inherent

jurisdiction under Section 482. This Court also drew a parallel with

the position obtaining under the Code of Civil Procedure, 1908

Criminal Appeal Nos. 2142-2143 of 2013 Page 8 of 34

(“CPC”), observing that even where the revisional remedy under

Section 115 CPC is statutorily barred, recourse to the jurisdiction

under Articles 226-227 of the Constitution remains available, as

has been held by this Court, and that similarly, even where a

second revision before the High Court is barred under Section

397(2) of the CrPC following dismissal of the first by the Court of

Session, the inherent power of the Court continues to be available.

This Court additionally noted that the High Court's power is

traceable not merely to Section 482 but also to Section 483 of the

CrPC, which casts a duty on the High Court to exercise continuous

superintendence over subordinate Courts of Judicial Magistrates

so as to ensure the expeditious and proper disposal of cases. Since

the inherent power of the High Court is not conferred by statute

but is merely preserved thereunder, this Court held that it would

be difficult to conceive of that jurisdiction being ousted merely

because a revisional remedy was also available. The relevant

observations are as under:

“6. Indisputably issuance of summons is not an

interlocutory order within the meaning of Section 397 of the

Code. This Court in a large number of decisions beginning

from R.P. Kapur v. State of Punjab to Som Mittal v. Govt. of

Karnataka' has laid down the criterion for entertaining an

application under Section 482. Only because a revision

petition is maintainable, the same by itself, in our

considered opinion, would not constitute a bar for

entertaining an application under Section 482 of the Code.

Even where a revision application is barred, as for example

the remedy by way of Section 115 of the Code of Civil

Procedure, 1908, this Court has held that the remedies

under Articles 226/227 of the Constitution of India would

be available. (See Surya Dev Rai v. Ram Chander Rai) Even

in cases where a second revision before the High Court after

dismissal of the first one by the Court of Session is barred

under Section 397(2) of the Code, the inherent power of the

Court has been held to be available.

Criminal Appeal Nos. 2142-2143 of 2013 Page 9 of 34

7. The power of the High Court can be exercised not only in

terms of Section 482 of the Code but also in terms of Section

483 thereof. The said provision reads thus:

“483. Duty of High Court to exercise continuous

superintendence over Courts of Judicial Magistrates.—

Every High Court shall so exercise its superintendence

over the Courts of Judicial Magistrates subordinate to

it as to ensure that there is an expeditious and proper

disposal of cases by such Magistrates.”

The inherent power of the High Court is not conferred by

statute but has merely been saved thereunder. It is, thus,

difficult to conceive that the jurisdiction of the High Court

would be held to be barred only because the revisional

jurisdiction could also be availed of. (See Krishnan v.

Krishnaveni?.)

(Emphasis Supplied)

12. Similarly, in Prabhu Chawla v. State of Rajasthan , reported in

(2016) 16 SCC 30, the petitions before the High Court arose under

Section 482 of the CrPC following the issuance of a summons by

the trial court. The High Court dismissed the quashing petitions as

not maintainable, taking the view that the availability of a remedy

under Section 397 of the CrPC rendered a petition under Section

482 impermissible. A three-Judge Bench of this Court, relying upon

Dhariwal Tobacco (supra), held that the availability of an

alternative remedy of criminal revision cannot furnish a good

ground for dismissing an application under Section 482 of the

CrPC. This Court reiterated that nothing contained in the CrPC, not

even Section 397, can be read as affecting or limiting the inherent

power conferred under Section 482, though such power ought not

to be exercised so as to invade areas specifically set apart for other

powers conferred under the CrPC. There is, however, no absolute

bar on the exercise of inherent jurisdiction where an abuse of the

process of the court or some other extraordinary situation warrants

Criminal Appeal Nos. 2142-2143 of 2013 Page 10 of 34

its invocation, the only limitation upon such exercise being one of

self-restraint only. The relevant observations are as under:

“6. In our considered view any attempt to explain the law

further as regards the issue relating to inherent power of the

High Court under Section 482 CrPC is unwarranted. We

would simply reiterate that Section 482 begins with a non

obstante clause to state:

“482. Saving of inherent powers of High Court. —

Nothing in this Code shall be deemed to limit or affect

the inherent powers of the High Court to make such

orders as may be necessary to give effect to any order

under this Code, or to prevent abuse of the process of

any court or otherwise to secure the ends of justice.”

A fortiori, there can be no total ban on the exercise of such

wholesome jurisdiction where, in the words of Krishna Iyer,

J.

“abuse of the process of the court or other extraordinary

situation excites the Court's jurisdiction. The limitation

is self-restraint, nothing more". (Raj Kapoor case, SCC

p. 48, para 10)”

We venture to add a further reason in support. Since Section

397 CrPC is attracted against all orders other than

interlocutory, a contrary view would limit the availability of

inherent powers under Section 482 CrPC only to petty

interlocutory orders! A situation wholly unwarranted and

undesirable.

xxx xxx xxx

8. In our considered opinion the learned Single Judge of the

High Court should have followed the law laid down by this

Court in Dhariwal Tobacco Products Ltd. and other earlier

cases which were cited but wrongly ignored them in

preference to a judgment of that Court in Sanjay Bhandari

passed by another learned Single Judge on 5-2-2009 in SB

Criminal Miscellaneous Petition No. 289 of 2006 which is

impugned in the connected criminal appeal arising out of

Special Leave Petition No. 4744 of 2009. As a result, both

the appeals, one preferred by Prabhu Chawla and the other

by Jagdish Upasane and others are allowed. The impugned

Criminal Appeal Nos. 2142-2143 of 2013 Page 11 of 34

common order dated 2-4-2009 passed by the High Court of

Rajasthan is set aside and the matters are remitted back to

the High Court for fresh hearing of the petitions under

Section 482 CrPC in the light of law explained above and for

disposal in accordance with law. Since the matters have

remained pending for long, the High Court is requested to

hear and decide the matters expeditiously, preferably

within six months.”

(Emphasis Supplied)

13. Further, in the recent case of Akanksha Arora v. Tanay Maben ,

reported in 2024 SCC OnLine SC 3688 , the appellant-wife, being

dissatisfied with the quantum of interim maintenance awarded to

her, had filed a petition under Section 482 of the CrPC before the

High Court seeking its enhancement. The said petition was ordered

to be dismissed on the ground that it was not maintainable, since

the appellant-wife had an efficacious remedy of revision available

under Section 397 of the CrPC. The Division Bench of this Court,

relying heavily on Prabhu Chawla (supra), held that the High

Court ought not to have rejected the petition under Section 482

solely on the ground that an alternative remedy of revision was

available. This Court further held that the nomenclature under

which a petition is filed is wholly immaterial, and that in order to

do substantive justice, the High Court can always treat and convert

a petition filed under Section 482 CrPC as one under Section 397

CrPC, and vice versa.. The relevant observations are as under:

“7. This Court has, in a catena of decisions, provided that

nomenclature of a petition is immaterial and for doing

substantive justice, the High Court can always convert a

petition under Section 482 CrPC to a revision under Section

397 CrPC and vice versa. The approach of the High Court in

dismissing the petition filed by the appellant under Section

482 CrPC on the hyper technical ground that she had to

avail the remedy of revision cannot be appreciated because

the same has unnecessarily compelled the appellant to

Criminal Appeal Nos. 2142-2143 of 2013 Page 12 of 34

approach this Court by way of this appeal filed under Article

136 of the Constitution of India.

8. In Madhu Limaye v. The State of Maharashtra, this Court

held that the label of a petition filed by an aggrieved party

is immaterial. The High Court can always examine the

controversy in an appropriate case in exercise of its inherent

powers.

9. In Prabhu Chawla v. State of Rajasthan, this Court

examined the relevant scope of Section 482 CrPC and

Section 397 CrPC and held that nothing in CrPC, not even

Section 397, can affect the amplitude of the inherent powers

preserved in so many terms by the language of Section 482

CrPC. The inherent powers should not invade areas set

apart for specific powers conferred under CrPC but there is

no total ban on the exercise of inherent powers where abuse

of process of Court or other extraordinary situation warrants

exercise of inherent jurisdiction. The limitation is self-

restraint, nothing more. Availability of alternative remedy of

criminal revision under Section 397 CrPC, by itself, cannot

be a good ground to dismiss an application under Section

482 CrPC.

10. Viewed in light of the above precedents, we feel that

even if the High Court was of the view that the appellant

should have invoked the jurisdiction under Section 397

CrPC for seeking enhancement of interim maintenance, it

ought not to have non-suited the appellant only on the

ground of alternative remedy. The judicious approach would

have been to convert the petition under Section 482 CrPC

into a revision under Section 397 CrPC and to have decided

the same as per law.”

(Emphasis Supplied)

14. The law on the interplay between Section 397 and Section 482 of

the CrPC, respectively, as laid down in the decisions discussed

above, is well settled and admits of little ambiguity. The availability

of an alternative remedy of revision under Section 397 of the CrPC

does not, by itself, operate as a bar to the exercise of the inherent

jurisdiction of the High Court under Section 482 of the CrPC. The

Criminal Appeal Nos. 2142-2143 of 2013 Page 13 of 34

two provisions operate in distinct spheres, and the mere existence

of a revisional remedy cannot be treated as ousting the jurisdiction

preserved under Section 482, which is available wherever there is

an abuse of the process of the court or where the ends of justice so

require, the only limitation upon its exercise being one of self-

restraint. Nor is the nomenclature of a petition determinative, and

a High Court, in order to do substantive justice, may treat a petition

filed under Section 482 as one under Section 397, and vice versa,

rather than non-suiting a party on a hyper-technical ground of

maintainability. Thus, the availability of the remedy of revision

under Section 397 of the CrPC could not have been made the

threshold on which the maintainability of the appellant’s

applications under Section 482 was to be tested. We are of the

opinion that the High Court erred in treating the availability of the

remedy of revision under Section 397 of the CrPC as the threshold

for examining the maintainability of the appellant’s applications

under Section 482 of the CrPC.

15. The respondents contended that the High Court dismissed the

appellant’s applications solely on merits, that is, on the ground of

delay, without reference to any threshold objection as to

maintainability. We are unable to accept this submission. The

impugned order, at its very inception, frames the common thread

running through all ten applications disposed of by it, including

Criminal Application Nos. 182 and 183 of 2012, respectively, filed

by the appellant, as being that each sought to invoke Section 482

of the CrPC “without first exhausting the remedy of seeking revision

before the Court of Sessions”, and records that the applications

were listed together specifically to examine whether such a course

was desirable. This threshold view on maintainability thus forms

Criminal Appeal Nos. 2142-2143 of 2013 Page 14 of 34

the organising premise of the impugned order as a whole and

applies equally to the appellant’s applications. The finding at para

98 of the impugned order, that the 10-year delay, though “indeed

deplorable”, would not by itself justify quashing of the complaints,

was therefore rendered in continuation of, and not in substitution

for, this overarching view on maintainability. The dismissal of the

appellant’s applications cannot accordingly be read as resting on

delay alone. So far as the question of delay is concerned, we shall

deal with the same, along with the right to speedy trial, in the later

part of this judgment.

(II) Whether the non-compliance with the mandatory requirement

of an opportunity notice under the proviso to Section 61(2) of

FERA warrants quashing of the criminal complaints and the

summoning order issued against the appellant?

16. Section 61 of FERA sets out the statutory requirements that must

mandatorily be satisfied before a court can take cognizance of the

offences under the Act. Under Section 61, cognizance of an offence

punishable under Sections 56 and 57 of FERA, respectively, can be

taken by a court only upon a written complaint made by the

Director of Enforcement, the Central Government, or the RBI, or by

a person authorised by any one of them to make such a complaint.

Further, under the proviso to Section 61(2), where the alleged

contravention consists of doing an act without permission, no

complaint can be made unless the person accused of the offence

has first been given an opportunity to show that he had such

permission. The relevant extract of Section 61 of FERA is as under:

“61. Cognizance of offences —

Criminal Appeal Nos. 2142-2143 of 2013 Page 15 of 34

(1) Notwithstanding anything contained in section 29 of the

Code of Criminal Procedure, 1973, it shall be lawful for any

metropolitan magistrate and for any magistrate of the first

class to pass a sentence of imprisonment for a term

exceeding three years or of fine exceeding five thousand

rupees on any person convicted of an offence punishable

under section 56.

(2) No Court shall take cognizance —

(i) xxx xxx xxx

(ii) of any offence punishable under section 56 or section 57,

except upon complaint in writing made by —

(a) the Director of Enforcement; or

(b) any officer authorised in writing in this behalf by the

Director of Enforcement or the Central Government; or

(c) any officer of the Reserve Bank authorised by the

Reserve Bank by a general or special order:

Provided that where any such offence is the contravention

of any of the provisions of this Act or of any rule, direction

or order made thereunder which prohibits the doing of an

act without permission, no such complaint shall be made

unless the person accused of the offence has been given an

opportunity of showing that he had such permission.”

(Emphasis Supplied)

17. In Devashis Bharracharya v. Union of India , reported in 2009

SCC OnLine Del 1018 , the petitioner therein had assailed a

complaint and the consequent summoning order under Section 56

of FERA read with Section 61(2)(ii), respectively, on the ground that

the criminal complaint had been instituted even before the expiry

of the three-day period granted to him to show cause. The entire

challenge of the petitioner rested on the contention that his

prosecution under FERA was illegal and without jurisdiction for

failure to comply with the proviso to clause (ii) of sub-section 2 of

Section 61. The facts were that an opportunity notice dated

17.05.2002 was served upon the petitioner on 25.05.2002,

requiring him to state in writing within three days whether he held

Criminal Appeal Nos. 2142-2143 of 2013 Page 16 of 34

the requisite permission of the RBI for the transactions in question,

failing which a complaint would be filed. The petitioner submitted

a detailed reply on 27.05.2002, however, the complaint itself had

already been signed and filed in Court on that very date, without

waiting for the reply or for the three-day period to lapse. The High

Court of Delhi held that the opportunity contemplated under the

proviso to Section 61(2)(ii) of FERA must be a meaningful

opportunity and not a mere notional compliance, and that

principles of natural justice have to be read into a statute even

where they are not explicitly set out, particularly where, as in the

case of FERA, the action complained of results in drastic penal

consequences including a term of imprisonment. The court held

that this opportunity to show-cause is a matter required to be

treated with utmost seriousness, and that the requirement of the

statute is mandatory so far as giving such opportunity to a person

accused of an offence under Section 56 concerned, on the well

settled principle that where law mandates something to be done in

a particular way, it has to be done in that way or not at all. Applying

this principle, the court found that there was, therefore, no

compliance with the statutory requirement of Section 61(2)(ii) of

FERA. The court accordingly held that the order taking cognizance

and issuing summons was without application of mind and

quashed the proceedings. The relevant observations are as under:

“14. The entire challenge by the petitioner rests on the

contention that the prosecution of the petitioner under FERA,

1973 is illegal and without jurisdiction for failure to comply

with the proviso to clause (ii) of sub-section 2 of Section 61

[…]

xxx xxx xxx

18. It is well settled that where an action under the statute

entails civil consequences, then even if an opportunity of

being heard may not be explicitly set out in the applicable

Criminal Appeal Nos. 2142-2143 of 2013 Page 17 of 34

legal provisions, the adherence to the principles of natural

justice has to be read into such a statute. For this reason,

so far as the provisions of FERA was concerned, the

legislature has enacted the proviso to clause (ii) of sub

section 2 of Section 61 requiring an opportunity to show that

the noticee had the requisite permission.

19. There can be no dispute that the action permitted under

section 61 of the FERA, 1973 certainly results in drastic

penal consequences. The statute prescribes that it shall be

lawful for any Metropolitan Magistrate and for any

Magistrate of the First Class to pass a sentence of

imprisonment for a term exceeding three years or of fine

exceeding five thousand rupees on any person if found

guilty of the offence under clause (ii) of sub-section 2 of

Section 61 of the Act. The present case is not a case where

the legislation does not prescribe compliance of the

principles of natural justice.

xxx xxx xxx

23. In this background, the opportunity which the

respondents are directed to give under the proviso to clause

(ii) of sub-section 2 of Section 61 is a matter which is

required to be treated with utmost seriousness with which

the respondents do not appear to have treated the same in

the instant case.

24. There can also be no dispute that the requirement of the

statute is mandatory so far as giving the opportunity of the

person accused of an offence under section 56 or 57 is

concerned.

25. The well-settled principle that where law mandates

something to be done in a particular way, then it has to be

done in that way or not at all is so well settled that it needs

no elaboration […]

xxx xxx xxx

30. […] 'Opportunity' has to be adequate and meaningful

opportunity whereby a person against whom the

respondent is able to place such material as to support its

plea of innocence on the ground that it had complied with

statutory formalities or that no such formality applied. It has

Criminal Appeal Nos. 2142-2143 of 2013 Page 18 of 34

to be held, therefore, that there is no compliance of the

statutory requirements in the instant case.

xxx xxx xxx

47. In the instant case, it would appear that the statutory

requirement of issuance of notice under proviso of sub

clause (ii) of sub-section 2 of Section 61, its date and manner

in the instant case as well as the failure to consider the

petitioner's reply or even place it before the court, has

resulted in manifest error in the exercise of jurisdiction by

learned trial judge. The order taking cognizance in the

instant case and directing issuance of summons, is clearly

without application of mind and cannot stand in law. In the

light of the well settled principles noticed hereinabove, there

is no embargo from quashing the proceedings which are

pending before the learned trial court.”

(Emphasis Supplied)

18. Similarly, and of particular significance to the facts of the present

case, in Sanjay Malviya v. R.K. Rawal, CEO, Enforcement

Directorate, reported in 2015 SCC OnLine Del 7686 , the

petitioner sought quashing of a complaint and summoning order

under Section 56 of FERA read with Section 61(2)(ii) respectively. It

was an admitted position that the opportunity notice had been

served upon the petitioner on 23.05.2002, on a Thursday, leaving

him with only a single working day, since 25.05.2002 and

26.05.2002 were public holidays, yet the respondent, without

disposing of the petitioner's representation and indeed before even

receiving his reply, filed the criminal complaint on 27.05.2002. The

petitioner further pointed out that the respondent had not followed

the procedure and manner of service prescribed under the Rules,

and had allegedly affixed the opportunity notice at an address at

which the petitioner was not even residing. The factum of service of

the notice was also not mentioned in the list of documents filed

with the complaint, nor in the respondent's counter affidavit,

Criminal Appeal Nos. 2142-2143 of 2013 Page 19 of 34

rendering the claim of service itself doubtful. Crucially, and

squarely applicable to the case at hand, the High Court of Delhi

noted that the complaint neither disclosed any date of service of the

opportunity notice nor was any proof of service filed by t he

department in support of the complaint, the respondent having

merely stated that an opportunity notice had been served without

any accompanying service report. It was further an admitted fact

that no proof of service was filed at the time of filing the complaint

to establish that an opportunity under Section 61(2) had in fact

been given to the petitioner. The Court held that this would amount

to non-compliance of the principle of natural justice envisaged

under Section 61(2) of FERA, and reiterated, relying upon the ratio

in Devashis Bhattacharya (supra), that before initiation of

proceedings under Section 56 of FERA, an opportunity must be

granted to the offender, and that the Magistrate is under a statutory

duty to satisfy himself, before taking cognizance, that such an

opportunity had in fact been given. The Court accordingly held that

the summoning of the petitioner was, in a mechanical manner, and

accordingly quashed both the complaint and the summoning order.

The relevant observations are as under:

“13. The respondent stated that opportunity notice is served

to petitioner as required in terms of proviso to Section 61 of

the FERA however the compliant (sic) does not disclose the

date of this notice and there is no mention of the reply

submitted by the petitioner. It is apparent therefrom that

complaint was drafted before or at the time of preparation

of notice dated 17th May, 2002 and the same is filed

without considering the objections of petitioner in its reply

dated 25

th May 2002.

14. It is well settled law that where law mandates

something to be done in a particular way, then it has to be

done in that way or not at all is so well settled, that it needs

no elaboration. The cognizance taken by ACMM is without

Criminal Appeal Nos. 2142-2143 of 2013 Page 20 of 34

jurisdiction and the process issued was illegal being in

violation of proviso to Section 61 of the FERA and without

application of judicial mind.

xxx xxx xxx

17. Therefore before initiation of proceedings under Section

56 of the FERA, an opportunity must be granted to the

offender by the Magistrate before taking the cognizance of

the offence and the Magistrate is under statutory duty to

satisfy himself that an opportunity has been given to the

offender before filing the complaint and if the offender failed

to show any permission, complaints to be filed before the

concerned magistrate and that magistrate will issue

process only on being satisfied that a case has been made

out for such issue that he has such permission. In other

words, failure on part of the offender to show such

permission to the Department is the genesis of the offence,

which gives right to the department to initiate criminal

prosecution and not the opportunity. Thus, the following are

required for initiation of prosecution:—

a. Grant of opportunity before filing the complaint

b. Disposal of opportunity given to offender regarding

having such permission or not from the RBI, if not,

c. Initiation of criminal prosecution and taking of cognizance

by the Magistrate in view of the opportunity given to the

offender.

18. In the present case, statutory requirement of issuance

of notice under proviso of Section 61(2)(ii) of the FERA, its

date and manner as well as the failure to consider the

petitioner's reply has resulted in manifest error in the

exercise of jurisdiction by ACMM. The order taking

cognizance in the instant case and issuance of summons is

contrary to law.

xxx xxx xxx

27. In the complaint neither any date of service of

opportunity notice is given nor any proof of service to effect

is filed by department in support of the complaint did not

mention the factum of compliance with Section 61(2) and

only gave date of the notice in the complaint. The respondent

in para 5 at page 22 of complaint simply stated that one

Criminal Appeal Nos. 2142-2143 of 2013 Page 21 of 34

opportunity notice and Show Cause Notice dated 4

th April,

2002 was served upon the petitioner which means an

opportunity under Section 61(2) by affixation but no service

report along with the same was filed at the time of initiation

of proceedings before the trial court till date. On 17

th May,

2002 the respondent served the opportunity notice by way

of affixing the same at a address given therein where the

petitioner is not even residing despite the fact though the

respondent was having the knowledge of present address

of the petitioner where he is actually living which is also

mentioned in the opportunity notice which reflects no proper

care is taken to serve the notice in accordance with

prescribed in Rule 3 of the FERA which clearly prescribe the

mode and manner of service of notices issued under the

FERA and therefore cannot be considered as a proper

service of the notice of opportunity.

xxx xxx xxx

29. It is admitted fact that no proof of service of notice was

filed by the respondent at the time of filing the complaint on

27

th May, 2002 to establish that an opportunity in terms

with Section 61(2) was given to the petitioner and the

petitioner failed to respond the same by showing that it has

permission from the RBI or not making him liable for

prosecution under Section 56 of the FERA.

30. In view of the above facts as well as the legal bar

imposed in proviso to Section 61 of the FERA, is ought to

have satisfied himself at the first instance before issuance

of the process about compliance of proviso to Section 61(2)

about the factum of opportunity given to the accused and

his satisfaction to this effect must be there before taking

cognizance against the petitioner in exercise of his legal

duty, as there is a statutory bar imposed upon the ACMM

from taking cognizance. If the trial court would have

exercised his legal duty diligently in terms of Section 61(2)

of the FERA the cognizance could not have been taken for

want of granting an opportunity to the petitioner, as done

by the trial court in a mechanical manner.

31. Therefore, it is apparent on the face of record that

summoning of the petitioner in a mechanical manner is bad

in law and is liable to be set aside. The impugned order

Criminal Appeal Nos. 2142-2143 of 2013 Page 22 of 34

dated 27

th May, 2002 is accordingly quashed by allowing

the present petition.”

(Emphasis Supplied)

19. In United India Airways Ltd. v. Chief Enforcement Officer,

Enforcement Directorate, reported in 2018 SCC OnLine Del

8233, the petitioners had assailed an order dated 11.07.2017

framing charge against them under Section 9(1)(e) of FERA, on the

ground that the mandatory requirement of the proviso to Section

61(2)(ii) of FERA had not been complied with, since no opportunity

notice had ever been served upon the petitioners. The High Court

held that the requirement under the proviso to Section 61(2)(ii) of

giving an opportunity to the accused to show that he had the

requisite permission is a mandatory requirement, and that before

taking cognizance, the Magistrate is under a statutory duty to

satisfy himself that such an opportunity has in fact been granted.

Since the opportunity notice had admittedly not been served upon

the petitioners, the Court held that the Trial Court had clearly erred

in taking cognizance, and accordingly set aside the impugned order

on charge. The relevant observations of the Court are extracted

below:

“7. The requirement of proviso to Clause (ii) of sub Section

(2) of Section 61 is that an opportunity of showing that the

accused had the requisite permission, is a mandatory

requirement.

8. A Coordinate Bench of this Court in Sanjay Malviya v.

R.K. Rawal, CEO Enforcement Directorate : (2015) 149 DRJ

231 has held that there is a statutory bar imposed under

Section 61 of FERA on a magistrate on taking cognizance

unless it is shown that the opp ortunity of showing

availability of permission has been granted to the accused.

Criminal Appeal Nos. 2142-2143 of 2013 Page 23 of 34

9. It is well settled that where law mandates something to

be done in a particular way, it has to be done in that way

or not at all.

10. Before initiation of proceedings under Section 56 of the

FERA, an opportunity must be granted to the accused.

Before taking the cognizance of the offence Magistrate is

under statutory duty to satisfy himself that an opportunity

has been given to the accused before filing the complaint.

Magistrate will issue process only on being satisfied that a

case has been made out for such issue.

xxx xxx xxx

16. The subject complaint was filed on 29.05.2002. Since

petitioners were never granted an opportunity, as

mandated by Section 61(2) of FERA, there is clearly a

breach of the mandate of law. Since the requirements of

Section 61(2) of FERA have not been complied with, reliance

placed by the respondent on the statement recorded at the

time when proceedings under Section 40 of FERA were

being undertaken and reliance on the same in the impugned

order as sufficient compliance of Section 61(2) of FERA, is

clearly misplaced.

17. Since respondents have failed to comply with the

mandatory requirement of Section 61(2) of FERA, the Trial

Court clearly erred in taking cognizance.

18. In view of the above, the impugned order on charge

dated 11.07.2017 cannot be sustained and is liable to be

set aside. The impugned order dated 11.07.2017 is,

accordingly, quashed.”

(Emphasis Supplied)

20. Most recently, in Shilpi Modes v. Directorate of Enforcement ,

reported in 2023 SCC OnLine Del 6816 , the petitioner sought

quashing of proceedings initiated under Section 56 of FERA on the

ground of violation of the principles of natural justice, since the

opportunity notice required under Section 61(2) of FERA had never

been served upon the petitioner. In fact, it was found that the

Criminal Appeal Nos. 2142-2143 of 2013 Page 24 of 34

petitioner had, well prior to the initiation of proceedings,

communicated its changed address to the Central Bank of India,

which address the Central Bank of India, despite being aware of it,

failed to communicate to the Enforcement Directorate;

consequently, the opportunity notice was never served upon the

petitioner at its correct address. The High Court held that any order

entailing drastic civil consequences, including an order under

FERA, cannot be sustained unless an opportunity has first been

afforded to the person likely to be affected, and that this constitutes

a clear application of the rule of audi alteram partem. The Court

noted that the plain reading of the proviso to Section 61(2) indicates

that no complaint can be filed unless the person accused of the

offence has been given an opportunity of showing that he has such

requisite permission. The Court accordingly quashed the

proceedings, including the complaint filed against the petitioner.

The relevant observations of the Court are extracted below:

“22. It is clear from the aforesaid that the ED did not have

the fresh and correct address of the petitioner which was

not disclosed by the Central Bank of India despite being

fully aware of the same. Having regard to the aforesaid

undisputed admission being part of judicial record, propels

this Court to conclude that the notice under proviso to

Clause (ii) of sub section (2) of Section 61 FERA was never

served upon the petitioner.

xxx xxx xxx

24. The plain reading of the proviso would indicate that no

complaint can be filed unless the person accused of such

offence has been given an opportunity of showing that he

has such requisite permission […]

xxx xxx xxx

28. A similar issue has been subject matter of a case

decided by the learned Single Judge of this Court on

05.04.2018 in Crl. Rev. P. 642/2017 titled United India

Criminal Appeal Nos. 2142-2143 of 2013 Page 25 of 34

Airways Ltd. v. Chief Enforcement Officer, Enforcement

Directorate, 2018 SCC OnLine Del 8233.

xxx xxx xxx

31. This Court respectfully concurs with the observations

and the ratio laid down in the case United India Airways

Ltd. (Supra).

xxx xxx xxx

33. Since the show cause notice or opportunity notice was

never served upon the petitioner, the consequent

proceedings initiated under Section 56 FERA cannot be

continued. It is for violation of Section 18(2) and Section

18(3) of the FERA that would entail action under Section 56

FERA, but the intervening threshold of issuance of show

cause notice/opportunity notice and hearing the notice

before passing the decision upon such mandatory

application of principles of natural justice alone that the

action under Section 56 could, at all, have been initiated. As

such the submission of Mr. Yogeshwaran on that count are

found to be untenable.

34. In view of the aforesaid observations, the present writ

petition is allowed and as a consequence thereof, a writ of

certiorari is issued quashing the exparte proceedings issued

by the ED dated 04.04.2022 including the complaint filed

against the petitioner and all the consequential proceedings

emanating therefrom.”

(Emphasis Supplied)

21. Thus, the conspectus of the above discussion is that the service of

an opportunity notice under the proviso to Section 61(2) of FERA is

a mandatory requirement, without compliance of which no

complaint under Section 56 or 57 of FERA respectively, can validly

be instituted, and no Magistrate can validly take cognizance of the

offence alleged therein. This opportunity must be meaningful and

adequate, and not a mere technical or notional compliance, given

the drastic penal consequences that follow from proceedings under

FERA. The burden lies upon the prosecution to establish, at the

Criminal Appeal Nos. 2142-2143 of 2013 Page 26 of 34

threshold, that such notice was issued and served in the prescribed

manner. The Magistrate shall satisfy himself, before taking

cognizance, that such opportunity was in fact given, or otherwise it

may render the order taking cognizance unsustainable and liable

to be quashed.

22. Now adverting to the facts of the present case, the respondents, in

the said complaints, had merely stated that the opportunity notice

under Section 61(2) of FERA was served upon the appellant, but

had neither stated the date of such notice, nor placed a copy of the

said notice on record with the complaint before the Magistrate.

Rather, this Court, vide its order dated 24.03.2015, had given both

parties an opportunity to place on record any additional

documents, if any; however, the respondents failed to place on

record the copy of the alleged opportunity notice. To this date, the

respondents have not even stated the date of such notice, nor have

they sought to place the same on record either before the

Magistrate, the High Court, or before this Court. Further, the

respondents have not substantiated the proper service of the

opportunity notice by placing on record any proof of service. In fact,

the Magistrate took cognizance on the complaint without recording

his satisfaction of compliance with the mandatory requirement

under Section 61(2) of FERA, since no such opportunity notice was

on record before the Magistrate. The High Court also ignored this

issue altogether.

23. Besides, the appellant has, time and again, before the High Court

as well as this Court, claimed that the Magistrate could not have

taken cognizance on the complaint since no opportunity notice

under Section 61(2) was served upon or received by them. The

Criminal Appeal Nos. 2142-2143 of 2013 Page 27 of 34

respondents have not even denied such a claim, either by apprising

the High Court or this Court of the date of the alleged opportunity

notice, or by refuting it through production of a copy of the said

notice or by specifically denying the same in the counter-affidavit

before us. In such circumstances, applying the principles laid down

in the decisions discussed above, we are of the considered opinion

that the mandatory requirement of the proviso to Section 61(2) of

FERA has not been complied with in the present case, giving rise

to violation of principle of natural justice, and therefore, the order

of the Magistrate taking cognizance of the complaints and issuing

summons to the appellant, having been passed without satisfaction

of this mandatory pre-condition, cannot be sustained in law.

(III) Whether the appellant’s fundamental right to a speedy trial

under Article 21 of the Constitution of India has been violated

in the facts and circumstances of the present case?

24. Although the conclusions we have reached on the foregoing two

issues are, in our considered view, sufficient to finally resolve the

controversy, yet we deem it appropriate, indeed necessary, with a

view to doing complete justice between the parties and for the

definitive settlement of all questions arising in the present lis, to

also examine this issue.

25. The law on the right to a speedy trial under Article 21 of the

Constitution was authoritatively laid down by a Constitution Bench

of this Court in Abdul Rehman Antulay v. R.S. Nayak , reported

in (1992) 1 SCC 225 . This Court held that although the

Constitution does not expressly declare a right to speedy trial, yet

Criminal Appeal Nos. 2142-2143 of 2013 Page 28 of 34

such a right is implicit in the fair, just and reasonable procedure

guaranteed under Article 21, and is a right of the accused,

notwithstanding that it also serves the public and social interest in

a prompt determination of guilt or innocence. This right extends to

every stage of a criminal proceeding, namely, investigation, inquiry,

trial, appeal, revision, and retrial, and there is no warrant for

confining it to the trial stage alone. This Court identified the

underlying concerns of this right from the standpoint of the

accused as being the need to keep the period of remand and pre-

conviction detention as short as possible, to minimise the worry,

anxiety, expense, and disturbance occasioned by unduly prolonged

proceedings, and to guard against the erosion of the accused's

ability to defend himself on account of the death, disappearance,

or unavailability of witnesses over time.

26. At the same time, this Court was equally emphatic that delay is

often a deliberate defence tactic, and since the burden of proving

guilt lies upon the prosecution, delay ordinarily works to the

prejudice of the prosecution rather than the accused. This Court

accordingly held that in every case where infringement of the right

is alleged, the first question to be put and answered is: who is

responsible for the delay? Proceedings taken in good faith by either

party to vindicate their rights cannot be treated as a delaying tactic,

nor can the time taken in pursuing such proceedings be counted

towards delay. This Court further held that undue delay must be

assessed having regard to all the attendant circumstances,

including the nature of the offence, the number of accused and

witnesses, the workload of the court concerned, and prevailing local

conditions, namely, what are described as systemic delays, and

that a realistic and practical approach, rather than a pedantic one,

Criminal Appeal Nos. 2142-2143 of 2013 Page 29 of 34

must inform this exercise. Importantly, this Court held that mere

length of delay does not by itself establish a violation of the right,

rather, an inordinately long delay may be taken as presumptive

proof of prejudice, triggering an examination of the attendant

circumstances, and that the “demand” rule, requiring an accused

to have asked for a speedy trial as a precondition to complaining of

its denial, does not apply in India.

27. Ultimately, the Court held that it is for the court to balance and

weigh the several relevant factors, described as a “balancing test”,

and to determine in each case whether the right to speedy trial has

in fact been denied and even where such denial is found, quashing

of the charges or conviction is not the sole or inevitable

consequence, since the court retains the discretion to pass such

other appropriate order, including a direction to conclude the trial

within a fixed time, or a reduction of sentence, as may be just and

equitable in the circumstances of the case. This Court declined to

prescribe any fixed outer time-limit for the trial of offences, holding

such a course to be neither advisable nor practicable, and clarified

that in every complaint of denial of the right, it is primarily for the

prosecution to justify and explain the delay, while the court weighs

all the circumstances of the case before pronouncing upon the

complaint.

28. The above propositions laid down in A.R. Antulay (supra) were

thereafter tested before a seven-Judge Bench of this Court in P.

Ramachandra Rao v. State of Karnataka , reported in (2002) 4

SCC 578, which, after an exhaustive review of the authorities,

reaffirmed the guidelines as laid down in A.R. Antulay (supra) as

correctly stating the law.

Criminal Appeal Nos. 2142-2143 of 2013 Page 30 of 34

29. The law on the right to a speedy trial came to be further considered

and applied by this Court in Kailash Chandra Kapri v. State of

Uttar Pradesh, reported in 2026 SCC OnLine SC 858 , wherein

one of us, J.B. Pardiwala, J., speaking for the Bench, dealt with a

criminal prosecution that had remained pending for over 35 years.

This Court reiterated that the right to a speedy trial is one of the

requirements of Article 21 of the Constitution irrespective of

whether the accused is in custody or on bail, and irrespective of the

nature or gravity of the offence, and held that where a High Court,

on an examination of the facts and circumstances of a given case,

finds that the continuation of a proceeding would amount to a

violation of Article 21, it ought not to hesitate in exercising its

inherent power or writ jurisdiction to bring such proceedings to an

end. This Court further noted that the appellant before it had

remained un-summoned for a period of nearly 35 years for no fault

of his own, the sole explanation offered by the State being that he

had shifted out of the jurisdiction upon the bifurcation of the State

and could not thereafter be traced. The Court further observed that

keeping a person in what it described as a state of “suspended

animation” for 35 years was wholly incompatible with the fair, just

and reasonable procedure that Article 21 contemplates, and that

quick and timely justice is the very sine qua non of that

constitutional guarantee. Holding that it would be unjust and

inequitable, in the circumstances, to permit the prosecution to

proceed any further, this Court quashed the proceedings against

the appellant.

30. Now adverting to the facts of the present case, we find that this is

not a case where the delay can be laid at the doorstep of the

appellant, nor is it a case of mere passive lapse of time, rather, the

Criminal Appeal Nos. 2142-2143 of 2013 Page 31 of 34

record discloses a chronicle of persistent and unexplained inaction

on the part of the respondent - complainant itself, spanning

virtually the entire life of these proceedings. The complaint came to

be instituted on 30.05.2002 for a transaction said to have taken

place as far back as in 1991-1992, unaccompanied by a single

supporting document, and cognizance was ta ken and summons

issued on that very date. Yet, remarkably, the summons so issued

were not even collected by the respondent - complainant for service

for almost 2 years thereafter, and it was only sometime in 2004 that

the respondent - complainant first came forward to collect the

summons.

31. Thereafter, for a further period of 8 years, that is, from 2004 to

2012, the summons, although issued from time to time, yet could

not be got served upon the accused by the respondent -

complainant, save in the case of the appellant no. 1, Standard

Chartered Bank, whose counsel had entered an appearance on

16.08.2005. Through this entire decade, the proceedings remained

frozen at the stage of issue of process, with the respondent -

complainant itself remaining absent on numerous occasions.

Notably, the court record entry dated 12.08.2005 records that even

when the summons returned unserved, the respondent -

complainant took no further steps whatsoever, such as moving an

application for issuance of a non-bailable warrant, a course it

eventually chose to adopt only on 28.05.2012, i.e., almost 7-8 years

after the summons had first come back unserved. It was in this

backdrop that the High Court, in the impugned order dated

22.03.2012, was constrained to describe the delay as “highly

deplorable” and directed the trial court to conclude the entire trial

within one-month. Still, even this direction met the same fate. The

Criminal Appeal Nos. 2142-2143 of 2013 Page 32 of 34

court record entry dated 30.05.2012 records that when fresh

notices were issued by the Magistrate's court, the respondent -

complainant declined to collect the same for service upon the

accused, notwithstanding that it was already in possession of the

accused's updated addresses from the record of the High Court

itself. It was only on 28.05.2012 that the notices were handed over

to the respondent - complainant, and service was thereafter

effected on 05.06.2012.

32. Even thereafter, neither the respondent - complainant nor the

accused appeared before the Magistrate's court, with the result that

the one-month period fixed by the High Court lapsed without the

trial having even commenced in earnest, compelling the Magistrate

to write to the High Court on 08.06.2012 seeking an extension,

which was duly granted on 29.06.2012, extending the outer limit

to 6-months. Despite this further indulgence, the respondent -

complainant continued to remain absent right up to the filing of the

present appeals. On this chronology, therefore, the question that

the decisions discussed above require us to ask, namely, who is

responsible for the delay, admits of only one answer - at every stage

at which the proceedings could have been carried further, it was

virtually the prosecution that failed to act with even ordinary

diligence and failed to take further steps wherever needed. The

respondent - complainant could have filed the application for

issuance of a non-bailable warrant long back, well before 2012,

since the summons had returned unserved on multiple occasions

over the years, but chose not to do so, and for what special reasons,

nobody knows.

Criminal Appeal Nos. 2142-2143 of 2013 Page 33 of 34

33. Equally telling is the conduct of the respondent - complainant in

the period following the High Court's time-bound directions. Given

a clear window of one-month to conclude the trial, the respondent

– complainant’s response was to refuse to even collect the notices

meant for service upon the accused. This compelled the trial court

to seek an extension, which the High Court granted, allowing a

further 6-months. Yet the record shows that the respondent -

complainant continued to remain absent right through this

extended period, and indeed, right up to the filing of the present

appeals before us. Such conduct, persisting even after two express

directions of the High Court fixing outer time-limits for completion

of the trial, cannot be explained away as systemic delay or

administrative constraint. In our opinion, it reflects a want of

diligence and unwillingness to prosecute the appellant further.

F. CONCLUSION

34. In view of all that is stated above, we are of the considered view that

this is a fit case warranting the exercise of the inherent powers of

this Court to bring these proceedings to an end. The complaint

itself, as stated earlier, is not supported by any documentary

evidence and rests upon an alleged opportunity notice under

Section 61(2) of FERA. The respondent – complainant have, till

date, not been able to produce the same or even date it with any

precision. It is pertinent to mention that 23-years have now elapsed

since the institution of the complaint, and over three decades since

the transaction it concerns, without the trial having progressed

beyond the stage of service of summons. To permit the respondent

- complainant to continue in such circumstances would be to allow

the appellant to remain, in the words of this Court in Kailash

Criminal Appeal Nos. 2142-2143 of 2013 Page 34 of 34

Chandra Kapri (supra), in a state of suspended animation

indefinitely.

35. We accordingly hold that the complaint bearing Criminal Case Nos.

1503-1504 of 2002, and the summoning order dated 30.05.2002

issued therein, are liable to be quashed as against the appellant

herein only. We accordingly pass such order.

36. In view of the above, the appeals succeed and are hereby allowed.

Accordingly, the impugned judgment and order of the High Court

is hereby set aside.

37. Pending applications, if any, shall stand disposed of.

38. The Registry is hereby directed to circulate one copy each of this

judgment to all the High Courts.

............................. J.

(J.B. Pardiwala)

............................. J.

(Manoj Misra)

New Delhi;

21

st July, 2026.