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Kuttarasa Abdul Rahim and V. Muniammal Vs. the Chief Enforcement Officer - Court Judgment

LegalCrystal Citation
SubjectFERA;Constitution
CourtChennai High Court
Decided On
Case Number Writ Petitions Nos. 3439 of 1972, 1848/73, 4259 and 4332/75
Judge
Reported in1987(13)ECC145
AppellantKuttarasa Abdul Rahim and V. Muniammal;m. Jainulabdeen;s.O. Arjunan Chettiar
RespondentThe Chief Enforcement Officer;assistant Enforcement Officer and anr.; the Enforcement Officer
DispositionPetition dismissed
Cases ReferredRajagopal v. Collector of Salt Revenue
Excerpt:
.....cannot represent the petitioner without a permission being granted by the respondent. 9. it is well established that there is no common law right to be represented by authorised agent or counsel and such a right has to be traced only under a statute......it is well established that there is no common law right to be represented by authorised agent or counsel and such a right has to be traced only under a statute. here the statute gives a qualified right to be represented by counsel.10. in rajagopal v. collector of salt revenue air 1937 mad 735 the question arose as to whether a government servant in an enquiry under rule 55 of the civil service (classification, control and appeal) rules is entitled to appear by counsel. it was urged that under the said rule 55 the person holding an enquiry is legally authorised to take evidence and, therefore, an advocate is entitled as of right to appear at such an enquiry under section 14(1)(b) of the bar councils act. this contention was resisted on the ground that the real question was not.....
Judgment:
ORDER

Ramanujam, J.

1. As the points involved in all the above writ petitions are the same, they are dealt with together. The facts in all these cases are more or less the same and therefore the facts in the first case alone are set out hereunder.

2. Room No. 11, Bhilai Lodge, Mount Road, Madras was searched on 6-7-1972 on receipt of information that the person staying in the said room had received a certain payment by order of a person resident abroad. During the search, 3 persons by name Abdul Gafoor, Abdul Malick and Abdul Hakeem were present in that room and Indian currency of Rs. 75,000 and certain documents were seized. When interrogated Abdul Gafoor stated that he was employed by the petitioner, that he used to collect monies from Madras and Tiruchirapalli as per instructions received from Singapore and that the amounts thus received were handed over to the petitioner for further disbursement. He had also stated that on 6-7-1972 he came to Madras on instructions of the petitioner for collecting a lakh of rupees from a local person, that he could collect only Rs. 75,000 and that the balance was promised to be paid next day. As a follow-up measure, the Athikadai was searched on 7-7-1972 as a result of which certain incriminating documents were said to have been seized. When interrogated with reference to the Indian currency of Rs. 75,000 seized at Madras from Abdul Gaffoor and others, the petitioner stated that he had nothing to do with the said amount.

3. For purpose of further interrogation with reference to the said sum of Rs. 75,000 as also the documents seized from the residence of the petitioner on 7-7-1972, the petitioner was served with summons dated 26-8-1972 to appear before the first respondent under Section 19F of the Foreign Exchange Regulation Act, 1947, hereinafter referred to as the Act. The petitioner sent a reply on 15-9-1972 through his counsel stating that the summons issued is vague as it did not contain the particulars about the name of the offender, the subject-matter of the offence, place of offence, etc., and that if proper summons is issued he is prepared to appear along with his counsel. Subsequently the respondent issued summons dated 28-11-1972 stating that the objections raised by the petitioner to the earlier summons are not legally tenable, that the failure of the party to attend the enquiry on the date specified in the summons is punishable under Section 174, IPC that the petitioner has no right to be represented by his counsel when he is asked to appear for the purpose of interrogation and that in any event, a counsel cannot represent the petitioner without a permission being granted by the respondent. It is the validity of the said summons dated 29-11-1972 that is being questioned in this writ petition.

4. According to the petitioner, the Foreign Exchange Regulation Act, 1947 does not prohibit a person charged with an offence under the Act from having the assistance of a legal practitioner, the proceedings for interrogation being part of an adjudication proceeding, the petitioner is entitled to have a reasonable opportunity of being heard which includes the right to have the assistance of a counsel, under Section 23-D of the Act, and the respondent's refusal to allow the petitioner's legal practitioner to accompany him during the enquiry is arbitrary and is an unreasonable restriction on the fundamental right of the petitioner under Article 19(1)(f) and (g) of the Constitution.

5. The stand taken by the respondent is that the petitioner is entitled to the assistance of a counsel only at the stage of the adjudication proceedings which is normally commenced by the issue of a show cause notice, that the word 'enquiry' occurring in Section 19F can only mean 'investigation' that the person summoned for investigation will not require the assistance of his counsel and that, therefore, having regard to the purpose for which the summons has been issued the petitioner alone should appear before the officer and he cannot be represented by a counsel at the stage of interrogation or investigation. It is also stated by the respondent that in the present case the petitioner has not so far been charged with any offence, that the summons directing him to appear was issued only for investigation, and that the investigation is only of a preliminary nature and does not constitute part of the adjudication proceedings which may or may not be initiated. It is said that normally adjudication commences as and when the show cause notice is issued to the person who is charged for contravention of the provisions of the Act directing him to show cause within such period as may be specified in the notice as contemplated in Rule 3(1) of the Adjudication Proceedings and Appeals Rules, 1957 and that at the stage of preliminary enquiry which precedes adjudication proceedings the petitioner cannot be represented by his counsel. The respondent says that the petitioner was summoned to appear mainly for the purpose of gathering evidence in connection with the seizure of the documents from his premises on 7-7-1972, that he has no right to have the assistance of a counsel in an enquiry of that nature and that in any event permitting counsel to accompany and represent the petitioner is entirely left to his discretion. Thus the respondent's main contention is that so long as the petitioner has not been charged for violation of any of the provisions of the Act, he is not entitled to be represented by counsel and that, in any event, the grant, of permission to the petitioner to be represented by counsel during the preliminary enquiry is exclusively within the discretion of the respondent.

6. The learned Counsel for the petitioner refers to Section 14(1) of the Indian Bar Councils Act, 1926 and Section 30 of the Advocates Act, 1961, in support of his plea that an advocate is entitled to represent the petitioner in the enquiry before the respondent. Section 14(1) of the Bar Councils Act is as follows:--

14. Right of advocates to practise.--(1) An advocate shall be entitled as of right to practise:--

(a) Subject to the provisions of Sub-section (4) of Section 9, in the High Court of which he is an advocate, and

(b) save as otherwise provided by Sub-section (2) or by or under any other law for the time being in force, in any other Court in British India and before any other Tribunal or person legally authorised to take evidence, and

(c) before any other authority or person before whom such advocate is by or under the law for the time being in force entitled to practise.

Section 30 of the Advocates Act is the corresponding provision and the same is extracted below:--

30. Right of advocates to practise.--Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends,--

(i) in all Courts including the Supreme Court;

(ii) before any tribunal or person legally authorised to take evidence; and

(iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.

It is pointed out by the learned Counsel for the petitioner that an advocate whose name is entered in the State roll is entitled as of right to practise before any person legally authorised to take evidence under Section 30 of the Advocates Act and that the respondent being a person legally authorised to take evidence under Section 19F of the Act under which the impugned summons had been issued cannot prevent the appearance by an advocate. Section 19F deals with the power of the Director of Enforcement to summon persons to give evidence and produce documents. The said Section so far as it is relevant for the purpose of this case is set out below:--

19F: Power to summon persons to give evidence and produce documents.--

(1) The Director of Enforcement shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document in any enquiry which such officer is making in connection with any offence under this Act.

(2) ....

(3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they areexamined or make statements and produce such documents as may be required:

Provided that the exemption under Section 132 of the Code of Civil Procedure, 1908, shall be applicable to any requisition for attendance under this Section.(4) Every such enquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Section 193 and 228 of the Indian Penal Code.

According to the learned Counsel for the petitioner, the enquiry contemplated under Section 19F is deemed to be a judicial proceeding and, therefore, the petitioner who has been summoned to appear to give evidence is entitled to berepresented or assisted by a counsel and that the respondent cannot arbitrarily prevent the petitioner from having the assistance of a counsel during the enquiry.

7. The learned Counsel relies on the following decisions in support of his case : In Dr. K.S. Rao v. State AIR 1957 AP 414 a Division Bench of the Andhra Pradesh High Court dealing with the question of validity of an order of dismissal of a public servant after disciplinary enquiry had expressed the view that rightly or wrongly, when the public servant is under a reasonable apprehension that the enquiry was the result of a preconceived plan and a concerted action on the part of his department, his request for professional help is certainly justified and the enquiry officer's refusal to accede to that simple request certainly deprives the public servant of an opportunity to defend himself. In T. Muniswamy v. State of Mysore AIR 1964 Mys 250 a Division Bench of the Mysore High Court dealing with the validity of Rule 11(5) of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957 expressed the view that the constitutional duty to afford an opportunity to a Government servant which conforms to the required standard of reasonableness not being discretionary but mandatory, that imperative duty cannot by a rule be transformed into a discretionary function, and that no disciplinary authority can, therefore, unreasonably refuse legal representation to a Government servant. But the above two decisions were rendered in the context of the constitutional protection afforded to a Government servant under Article 311(2) and, therefore, they may not be of much help in this case where no such constitutional protection is claimed or arises.

8. The learned Counsel would, however, point out that Article 22(1) of the Constitution gives the petitioner such a protection. Article 22(1) is as follows:--

No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

I do not see how the said article will come into play on the facts of this case. That article says that an arrested person shall not be denied the right to consult and to be defended by a legal practitioner of his choice, In this case the petitioner has been merely summoned to appear and no charge has been levelled against him as yet. Though the learned Counsel may be right in his submission that the expression 'enquiry' used in Section 19F(1) will also include preliminary enquiry of investigation which is to be deemed to be a judicial proceeding within the meaning of Sections 193 and 228, IPC by the terms of the section, I am not inclined to agree with his contention that the petitioner is entitled to be accompanied and assisted by a counsel at the enquiry and that the discretion given to the respondent under Section 19F(3) to permit the petitioner to appear by an authorised agent is violative of the petitioner's right to appear by counsel.

9. It is well established that there is no common law right to be represented by authorised agent or counsel and such a right has to be traced only under a statute. Here the statute gives a qualified right to be represented by counsel.

10. In Rajagopal v. Collector of Salt Revenue AIR 1937 Mad 735 the question arose as to whether a Government servant in an enquiry under Rule 55 of the Civil Service (Classification, Control and Appeal) Rules is entitled to appear by counsel. It was urged that under the said Rule 55 the person holding an enquiry is legally authorised to take evidence and, therefore, an advocate is entitled as of right to appear at such an enquiry under Section 14(1)(b) of the Bar Councils Act. This contention was resisted on the ground that the real question was not whether an advocate has got a right to appear but whether his client has got a right to be represented by him at the enquiry and that, therefore, the question as to whether the Government servant is entitled to be represented by a counsel at the enquiry has to be decided with reference to Rule 55 alone and not with reference to Section 14(1)(b) of the Bar Councils Act. Ultimately the Court, on an interpretation of the said Rule 55 held that there is no right at common law to appear by an agent, that the scheme of the Indian legislature is to confer a special right to be represented by an advocate or agent such as that given by Section 340 Cr PC Order 1, Rule 1 and Order 33 Rule 3, CPC, etc., that Rule 55 merely enables a party 'to be heard in person' and that the expression 'to be heard in person' in its natural and ordinary meaning will definitely exclude person being heard by counsel or otherwise than in person. The following passage in the said decision is pertinent:--

There is in British India no common law right in a party to be represented by counsel....The advocate's right of audience since the Bar Councils Act depends on Section 14 of the Act....But the advocate's right of audience is necessarily inseparable from his client's right to appear by advocate before a particular Tribunal. If the client is expressly denied the privilege of being heard by counsel, it is obvious that the Bar Councils Act will not save him from the disability.

In Zonal Manager, L.I.C. v. City Munsif, Meerut : (1969)IILLJ607All the scope of Section 30(ii) of the Advocates Act came up for consideration. The Court held that Section 30 of the Advocates Act does not confer on a litigant a right to be represented by an advocate, that it presupposes that the litigant is entitled to be represented by an advocate and that a litigant has no common law right to appoint a counsel as his agent. In T.S. Agarwal v. Jt. R. Co-op. Societies : AIR1971MP86 , Section 67(2) of the Madhya Pradesh Co-operative Societies Act, 1960 was challenged as being void and repugnant to Section 30 of the Advocates Act. While rejecting that contention on the ground that Section 30 of theAdvocates Act has not been brought into force by then, the Court expressed the view that:--

The right to be represented by a legal practitioner, except when a person is charged of a criminal offence, is not a fundamental right. So far as proceedings in Civil Courts are concerned, right to representation by a legal practitioner is conferred on a party by Order 3 Rule 1 of the Code of Civil Procedure. As regards Tribunals and quasi-judicial authorities, in the absence of any specific statutory provision, a party's right to representation by a counsel is based on the law of agency and principles of natural justice. Subject to exceptions, a person can appoint an agent for any purpose and the agent so appointed may be a lawyer. So a person who can appear in a proceeding by an agent can appoint a lawyer to be his agent.

11. As already stated, in this case the petitioner relies on Section 30 of the Advocates Act as enabling him to be represented by a counsel. Even assuming that Section 30 confers an absolute right on a counsel to appear before the authorities acting under Section 19F of the Act, we are not concerned in this case as to the right of an advocate. But we are concerned only with the question as to whether the petitioner is entitled to be represented by an advocate at the preliminary enquiry conducted under Section 19F. The petitioner's right, if any, should therefore, be traced only to Section 19F. In the construction of Section 19F, one cannot import the notions contained in Section 30 of the Advocates Act. The right of an advocate to appear and the right of a party to be represented by advocate are independent and, therefore, while considering the party's right to be represented by [an] advocate, we have to merely look at the provisions of the statute under which he is expected to act or [be] proceeded against. The party's right to be represented by an advocate should not be confused with the advocate's right of audience. Hence Section 30 of the Advocates Act cannot be said to be of any assistance here. Section 30 will be relevant only when the concerned advocate goes before the Court and complains that his light of audience has been interfered with.

12. Thus the question resolved itself as one relating to the scope of Section 19F(2) which says that the persons summoned shall be bound to attend either in person or by an authorised agent, as the officer may direct. It is true, this section limits the petitioner's right to be represented by an authorised agent and discretion has been given to the officer who had issued the summons to permit or not to permit the person summoned to be represented by [an] authorised agent. The expression 'authorised agent' will not, in my view, include an advocate. Even assuming that the expression 'authorised agent' is wide enough to include an advocate, insofar as the section gives the discretion to the officer to permit or not to permit representation by an authorised agent, it cannot be said to be void so long as the person summoned has no inherent or fundamental right to be represented by an authorised agent. As has been held in Rajagopal v. Collector of Salt Revenue AIR 1937 Mad 735 there is no common law right in a party to be represented by counsel and such a right can be claimed by him only under a statutory provision. Section 19F does not confer on a person an absolute right to be represented by an authorised agent but it gives him only a qualified right.

13. Thus the contentions raised by 'the petitioners in all the cases are not, tenable. The writ petitions are, therefore, dismissed. There will however be no order as to costs. The relief by way of return of the money seized claimed in W.P. No. 1848/73 cannot be granted at this stage when the enquiry under Section 19F is proceeding.


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