Summary
The Supreme Court upheld the authority of an Enforcement Officer to lodge a FERA complaint after repeal, where cognizance was taken within FEMA’s two-year saving period. Section 49(4) continued the repealed law for prosecution of saved offences, including the existing authority to file complaints. Treating that authority as extinguished on repeal would defeat the saving provision. The appeal was dismissed and priority disposal of the complaint directed.
Issues
- Whether repeal terminated the Enforcement Officer’s existing authority to file the complaint.
- How FEMA’s saving provisions governed prosecution and cognizance of pre-repeal FERA offences.
Provisions considered
- Section 49(3) and (4), Foreign Exchange Management Act, 1999Cognizance within two years preserved prosecution of pre-repeal offences. The legal fiction continued FERA and its complaint-authorisation machinery for that limited purpose. (¶¶ 8, 9, 10, 11, 12, 14)
- Section 61(2)(ii)(b), Foreign Exchange Regulation Act, 1973The written-authorisation requirement was satisfied by the Central Government notification covering Enforcement Officers. The existing authority remained effective for the saved prosecution despite repeal. (¶¶ 6, 7, 11, 12)
Held
- A complaint for the relevant FERA offences required an officer within the authorised categories. The complainant was an Enforcement Officer covered by the Central Government’s authorisation notification, and the Magistrate took cognizance within FEMA’s two-year saving period. (¶¶ 6, 7, 10, 11)
- Section 49(4), subject to the cognizance limit in Section 49(3), continued the repealed Act as though unrepealed for saved offences. This maintained the officer’s authority to file such a complaint during that period; repeal did not independently disable the prosecution machinery. (¶¶ 8, 11)
- An interpretation extinguishing complaint authority immediately on repeal would prevent initiation of saved prosecutions within the express two-year period and render the provision ineffective. The statute had to be construed to give effect to the legislative intention and make the saving workable. (¶¶ 12, 13, 14)
- The Court addressed the authorisation and saving objections; merits of the complaint were not argued or determined. The long-stayed complaint required out-of-turn priority for disposal. (¶¶ 3, 15)
Result
Appeal dismissed. Trial Court directed to accord out-of-turn priority to complaint CC No. 14/CW/2002, which had remained stayed since 7 January 2011.