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First Global Stockbroking Pvt. Ltd. & Ors. vs. Anil Rishiraj & Anr.

Criminal Appeal · 2023 INSC 845Decided 21 Sept 2023
Criminal Appeal No. 2151 of 2011
Abhay S. Oka · Sanjay Karol

Background

The Foreign Exchange Regulation Act (FERA) was repealed and replaced by the Foreign Exchange Management Act (FEMA) in 2000, but FEMA allowed prosecutions for FERA offences to continue for a two-year "sunset period." Within that window, an Enforcement Officer filed a criminal complaint against the appellants (a stock-broking company and others) for FERA violations. The appellants argued the officer's authorisation to file such complaints had lapsed the moment FERA itself was repealed, making the complaint invalid, and their discharge applications and later a High Court petition challenging the prosecution were all rejected.

Decision Breakdown

The Supreme Court examined the "repeal and saving" provisions of FEMA (Section 49) and held that these provisions specifically preserved the authority of Enforcement Officers to file complaints for FERA offences during the two-year sunset period, as if FERA had not been repealed at all. Accepting the appellants' argument would defeat the very purpose of the sunset clause, rendering it meaningless: an outcome the Court said no statute should be interpreted to produce. Since the complaint here was filed and cognizance taken within that two-year window by a duly authorised officer, it was valid, and the prosecution could proceed. The appeal was dismissed, with a direction that the long-stayed trial be given priority.

Lesson Learnt

When a law is repealed and replaced, a "saving clause" giving a transition/sunset period keeps the old law's enforcement machinery, including officers' powers to prosecute pending violations, fully alive for that period; courts will read such provisions in the way that keeps them functional rather than in a way that defeats their purpose.

Official source (sci.gov.in)View Judgment (PDF)

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