judgement:
Criminal Appeal No. 532 of 1976.
From the Judgment and Order dated 9.2.
1976 of the Punjab and Haryana High Court in Crl.
Writ No. 13 1 of 1975.
Baldev Atrey, K.B. Rohtagi, R.A. Gupta, V.K. Jain, S.K. Gupta and C.S. Vaidyanathan for the Appellant.
M.S. Rao, R.S. Sodhi, B. Parthasarathi and Ms. A. Subha shini for the Respondents.
The Judgment of the Court was delivered by BALAKRISHNA ERADI, J.
These four appeals have been filed against judgments of the High Court of Punjab and Haryana rejecting the claims of the appellants who have been con victed by the General Court Martial for offences under the and are undergoing their sentences of varying terms of imprisonment for the grant of benefit to them of the provision for set off contained in Section 428 of the Code of Criminal Procedure.
The High Court has granted certifi cates of fitness under Article 134A of the Constitution and it is on the strength of those certificates that these appeals have been preferred to this Court.
The common question of law that arises in these appeals concerns the applicability of Section 428 of the Code of Criminal Procedure to persons sentenced to undergo imprison ment by General Court Martial under the .
The posi tion under the will equally govern persons sen tenced to undergo imprisonment by Court Martial under the Navy Act and the Air Force Act.
In the judgments under appeal, the High Court has fol lowed an earlier ruling of a Division Bench of the same High Court in Ram 87 Labhaya Sharma vs Union of India and Others, in Criminal Writ No. 40 of 1975 decided on December 12, 1975 wherein it was held that the benefit under Section 428 of the Code of Criminal Procedure is not available to convicts, who are tried, convicted and sentenced by Court Martial.
There is a divergence of views between different High Courts on this question.
The High Court of Madras in P.P. Chandrasekaran vs Government of India and Ors., [1977] Cri.
L.J. 677 (a case of courtmartial under the Navy Act) and in T.S. Ramani vs The Superintendent of Prisons, [1982] Cri.
L.J. 892 (court martial under the ) has taken the view that the benefit of Section 428 of the Code of Criminal Procedure cannot be claimed by persons convicted by Court Martial.
The same view has been taken by the High Court of Delhi in F.R. Jesuratnam vs Chief of Air Staff, [1976] Cri.
L.J. 65 dealing with a case of court martial under the Air Force Act.
A Single Judge of the High Court of Kerala has however, taken a contrary view in Subramanian vs Officer Commanding Armoured Static Workshop, and the said decision was referred to and followed by a Division Bench of the Calcutta High Court in the case of Anand Singh Bishit vs Union of India and Ors., An examination of the relevant provisions of the Code of Criminal Procedure and the (as well as the corre sponding provisions in the Navy Act and the Air Force Act) makes it abundantly clear that Section 428 of the Criminal Procedure can have no applicability whatever in respect of persons convicted and sentenced by Court Martial.
Section 5 of the Code of Criminal Procedure lays down that nothing contained in the said Code shall, in the ab sence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
The relevant Chapters of the , the Navy Act and the Air Force Act embody a completely self contained comprehensive Code specifying the various offences under those Acts and prescribing the procedure for detention and custody of offenders, investigation and trial of the offend ers by Court Martial, the punishments to be awarded for the various offences, confirmation and revision of the sentences imposed by Court Martial, the execution of such 88 sentences and the grant of pardons, remissions and suspen sions in respect of such sentences.
These enactments, there fore, constitute a special law in force conferring special jurisdiction and powers on Courts Martial and prescribing a special form of procedure for the trial of the offences under those Acts.
The effect of Section 5 of the Code of Criminal Procedure is to render the provisions of the Code of Criminal Procedure inapplicable in respect of all matters covered by such special law.
Since in the four cases before us we are concerned with convictions by General Court Mar tial under the provisions of the , we shall refer specifically to the relevant provisions contained in the (hereinafter called the 'Act ').
Sections 34 to 68 contained in Chapter VI of the Act specify the different categories of offences under the Act including abetment of offences under the Act.
Chapter VII of the Act which comprises Sections 71 to 89 of the Act deals with the punishments awardable by Court Martial in respect of the different offences.
Sections 10 1 to 107 contained in Chapter IX of the Act deal with the arrest and custody of offenders and the proceedings prior to the trial.
Chapter X of the Act describes in Sections 108 to 118, the different kinds of court martial, the authorities competent to convene them, their composition, and respective powers.
In Chapter XI consisting of Sections 128 to 152, we find detailed provisions laying down the procedure to be followed by Court Martial in conducting the trial of offenders.
Chapter XII contains provisions relating to confirmation and revi sion of the findings entered and sentences imposed by the different categories of courtmartial.
Sections 166 to 176 contained in Chapter XIII deal with the execution of sen tences and the establishment and regulation of military prisons etc.
The subject of granting pardons, remissions and suspensions of sentences is dealt with in Sections 179 to 190 comprised in Chapter XIV of the Act.
Thus we find that the Act contains elaborate and comprehensive provisions dealing with all the stages commencing from the investiga tion of offences and the apprehension and detention of offenders and terminating with the execution of sentences and the grant of remissions.
suspensions etc.
Section 167 of the Act specifically lays down that whenever a person is sentenced by a Court Martial under the Act to imprisonment, the term of his sentence shall, whether it has been revised or not, be reckoned to commence on the day on which the original proceedings were signed by the Presiding Officer or, in the case of a summary Court Mar tial, by the Court.
In the face of this categorical provi sion laying down that the sentence of imprisonment shall be 89 deemed to have commenced only on the day when the court martial proceeding was signed by the Presiding Officer or by the Court as the case may be, it is in our opinion futile to contend that the is silent with respect to the topic as to the date with effect from which the period of imprisonment covered by the sentence is to be reckoned.
We state this only for the reason that an ingenious argument was advanced before us by Counsel for the appellant that Section 5 of the Code of Criminal Procedure only lays down that nothing in the Code shall "affect" any special or local law and hence in the absence of any specific provision in the special or local law covering the particular subject matter, the provisions of the Code would get attracted.
Even if this argument is to be assumed to be correct (which assumption we shall presently show iS wholly unwarranted), inasmuch as Section 176 of the Act specifically deals with the topic of the date of commencement of the sentence of imprisonment, there is absolutely no scope for invoking the aid of Section 428 of the Code of Criminal Procedure in respect of prisoners convicted by Court Martial under the Act.
As we have already indicated, we are unable to accept as correct the narrow and restricted interpretation sought to be placed on Section 5 of the Code by the Counsel appearing on behalf of the appellants.
In our opinion the effect of Section 5 of the Code is clearly to exclude the applicabili ty of the Code in respect of proceedings under any special or local law or any special jurisdiction or form of proce dure prescribed by any other law.
Whatever doubt might otherwise have existed on this point is totally set at rest by Section 475 of the Code of Criminal Procedure which furnishes a conclusive indication that the provisions of the Code are not intended to apply in respect of proceeding before the Court Martial.
That Section is in the following terms: "475.
Delivery to commanding officers of persons liable to be tried by Court martial (1) The Central Government may make rules consistent with this Code and the (46 of 1950), the (62 of 1957), and the (45 of 1950) and any other law, relating to the Armed Forces of the Union, for the time being in force, as to cases in which persons subject to military, naval or air force law, or such other law, shall be tried by a Court to which this Code applies or by a Courtmar tial; and when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court 'to which this Code applies or by a Court martial, such Magistrate shall have regard to such 90 rules, and shall in proper cases deliver him, together with a statement of the offence of which he is accused, to the commanding officer of the unit to which he belongs, or to the commanding officer of the nearest military, navel or air force station, as the case may be, for the purpose of being tried by a Court martial.
Explanation In this section (a) "unit" includes a regiment, corps, ship, detachment, group, battalion or company, (b) "Court martial" includes any tribu nal with the powers similar to those of a Court martial constituted under the relevant law applicable to the Armed Forces of the Union.
(2) Every Magistrate shall, on receiving a written application for that purpose by the commanding officer of any unit or body of soldiers, sailors or airmen stationed or employed at any such place, use his utmost endeavors to apprehend and secure any person accused of such offence.
(3) A High Court may, if it thinks fit, direct that a prisoner detained in any jail situated within the State be brought before a Court martial for trial or to be examined touching any matter pending before the Court martial.
" The distinction made in the Section between "trial by a Court to which this Code applies" and by a Court Martial conclusively indicates that Parliament intended to treat the Court Martial as a forum to the proceedings before which the provisions of the Code will have no application.
Further, there is also intrinsic indication contained in the very wording of Section 428 of the Code of Criminal Procedure that the section cannot have any application in respect of persons tried and sentenced by Court Martial.
Section 428 of the Code reads "428.
Period of detention undergone by the accused to be set off against the sentence of imprisonment Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprison ment in 91 default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprison ment, imposed on him on such conviction, and the liability of such person to undergo im prisonment on such conviction shall be re stricted to the remainder, if any, of the term of imprisonment imposed on him.
" The section provides for set off of the period of deten tion undergone by an accused person during "the investiga tion, inquiry or trial" of the same case before the date of conviction.
The expression "investigation" has been defined in Section 2(h) of the Code as follows: "2.(h) "investigation" includes all the pro ceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf." In the case of persons tried by Court Martial there is no investigation conducted by any police officer under the Code or by any person authorised by Magistrate in that behalf.
Similarly, the expression "inquiry" has been defined in Section 2(g) of the Code as meaning "every inquiry, other than a trial, conducted under this Code by a Magistrate or Court." No inquiry is conducted under the Code by any Magis trate or Court in respect of the offences committed by persons which are tried by the Court Martial.
The trial is also not conducted by the Court Martial under the Code but only in accordance with the special procedure prescribed by the Act.
Such being the position, the provision for set off contained in Section 428 of the Code of Criminal Procedure can never be attracted in the case of persons convicted and sentenced by Court Martial to undergo imprisonment.
In the light of the foregoing discussion we uphold as correct the view taken by the High Court of Punjab and Haryana in the judgments under appeal.
We also approve of the decisions of the High Courts of Madras and Delhi cited above wherein the view has been taken that the benefit of Section 428 of the Code of Criminal Procedure cannot be claimed by persons tried and sentenced by the Court Martial.
The decision in Subramanian vs Officer Commanding Armoured 92 Static Workshop (supra) rendered by a learned Single Judge of the High Court of Kerala does not contain any discussion of the relevant provisions of the two concerned statutes and what little reasoning is found in the judgment does not appeal to us as correct or sound.
The Division Bench of the Calcutta High Court in its decision in Anand Singh Bishit vs Union of India and Ors.
(supra) has merely followed the aforesaid ruling of the Single Judge of the High Court of Kerala.
We hold that these two decisions do not lay down the correct law.
It follows from the foregoing discussion that these appeals are devoid of merits and they will accordingly stand dismissed.
P.S.S. Appeals dismissed.

summary/full:
Section 167 of the provides that whenever a person is sentenced by a Court Martial to imprisonment, the term of his sentence shall be reckoned to commence on the day on which the original proceedings were signed by the Presiding Officer.
Section 5 of the Code of Criminal Proce dure lays down that nothing contained in the Code shall affect any special or local law or any special jurisdiction or power or any special form of procedure prescribed by any other law in.
force.
Section 428 of the Code provides for set off of the period of detention undergone by an accused person during the investigation, inquiry or trial against the term of imprisonment.
Section 475 of the Code states that when any person is brought before a Magistrate and charged with an offence for which he is liable to be tried either by a Court to which the Code applies or by a Court Martial, such Magistrate shall in proper cases deliver him together with a statement of the offence, of which he is accused, to the commanding officer of the unit to which he belongs.
The appellants who were convicted by the General Court Martial for offences under the are undergoing their sentences of imprisonment.
Their petitions claiming grant of benefit of the provision for set off contained in section 428 of the Code having been dismissed by the High Court they pre ferred these appeals by certificate under Article 13 A of the Constitution of India.
It was contended on their behalf that the is silent with respect to the topic as to the date with effect from which the period of imprisonment covered by the sen tence is to be reckoned, and that since section 5 of the Code only lays down that nothing contained therein shall affect any special or local law, in the absence of any specific provision in the the provisions of the Code would get attracted.
Dismissing the appeals, the Court, 85 HELD: 1.
The provision for set off contained in section 428 of the Code of Criminal Procedure is not attracted in the case of persons convicted and sentenced by Court Martial to undergo imprisonment.
[91F] 2.
The , the Navy Act and the Air Force Act constitute special laws in force conferring special juris diction and powers on Courts Martial.
They embody a com pletely self contained comprehensive code specifying the various offences and prescribing the procedure for deten tion, custody, investigation and trial of the offenders, the punishment to be awarded, confirmation and revision of the sentences imposed, the execution of such sentences and the grant of pardons, remissions and suspensions in respect of such sentences.
Section 5 of the Code renders the provisions of the Code inapplicable in respect of all matters covered by such special law.
[87G 88B] 3.
Section 167 of the specifically lays down that whenever a person is sentenced by a Court Martial to imprisonment, the term of his sentence shall be reckoned to commence on the day on which the original proceedings were signed by the Presiding Officer.
In the race of this cate gorical provision it cannot be said that the is silent with respect to the topic as to the date with effect from which the period of imprisonment covered by the sen tence is to be reckoned.
[88G; 89AB] 4.
The distinction made in section 475 of the Code between "trial by a Court to which this Code applies" and by a Court Martial ' conclusively indicates that Parliament in tended to treat the Court Martial as a forum to the proceed ings before which the provisions of the Code will have no application.
[90F] 5.
There is also intrinsic indication contained in the very wording of section 428 of the Code that it cannot have any application in respect of persons tried and sentenced by Court Martial.
There is no 'investigation ' conducted by any police officer under the Code or by any person authorised by Magistrate in that behalf in the case of persons tried by the Court Martial.
No inquiry is conducted under the Code by any Magistrate or Court in respect of offences committed by persons which are tried by the Court Martial.
The trial is also not conducted by the Court Martial under the Code but only in accordance with the special procedure prescribed by the .
There is, therefore, absolutely no scope for invoking the aid of section 428 of the Code of Criminal Procedure in respect of prisoners convicted by Court Martial under the Act.
[90G; 91D; E; 89C] 86 P.P. Chandrasekaran vs Government of India & Ors., ; T.S. Ramani vs The Superintendent of Prisons, and F.R. Jesuratnam vs Chief of Air Staff, , approved.
Subramanian vs Officer Commanding Armoured Static Work shop, Anand Singh Bishit vs Union of India & Ors., , overruled.


judgement:
Criminal Appeal No. 627 of 1986.
From the Judgment and Order dated 7.3.
1986 of the Bombay High Court in Crl.
Appeal No. 119 of 1981.
Ashok Sen, Kapil Sibbal, A.K. Sanghi and R.L. Sanghi for the Appellants.
M.S. Rao, A.S. Rao and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by SEN, J.
The short question involved in this appeal by spe cial leave directed against the judgment and order of the High Court of 'Bombay dated March 7, 1986 is whether the word 'whoever ' in sub section
(1) of section 23 of the Foreign Ex change Regulation Act, 1947 before its amendment by Act XXXIX of 1957 denoted only a natural person and association of persons, such as a firm, would not fall within the conno tation of the word 'whoever '.
By the judgment, a learned Single Judge 140 of the High Court allowed the appeal of the Director of Enforcement under section 54 of the Act and set aside the order of the Foreign Exchange Regulation Appellate Board, Bombay dated January 30, 1981 and restored the order of the Direc tor of Enforcement dated August 17, 1978 holding the appel lants guilty of contravention of section 12(2) of the Act read with the notification issued by the Government of India in the Ministry of Finance, New Delhi dated April 22, 1952 and levying a penalty of Rs. 15,00,000.
By its order the Foreign Exchange Regulation Appellate Board held that there could be no levy of penalty on the appellants firm for failure to repatriate foreign exchange on shipments of manganese ore made prior to September 20, 1957 i.e. prior to the amendment of section 23(1) of the Act and the introduction of section 23C by the Amendment Act and accordingly reduced the amount of penalty to Rs.3, 10,000.
AS a result of the decision of the High Court, the order of the Director of Enforcement levying a penalty of Rs. 15,00,000 on the appellants has been re stored.
The facts giving rise to the appeal are as follows.
Messrs Rai Bahadur Seth Shreeram Durgaprasad were a partner ship firm engaged in the business of winning, extracting and getting manganese ore from their manganese mines at Tumsar on a very large scale.
During the period from 1952 to 1958, the partnership firm made 52 shipments of manganese ore to various foreign countries and earned huge amount of foreign exchange.
It however failed to repatriate the full value in foreign exchange against the aforesaid 52 shipments and thereby contravened section 12(2) of the Act.
The Director of Enforcement accordingly initiated adjudication proceedings against the appellants under section 23(1) as amended for contra vention of section 12(2) as well as section 4(1) of the Act.
The appellants stated before the Director of Enforcement that they did not contest the charge under section 12(2) of the Act but questioned the liability of the firm on the ground that the amended section 23(1) as well as section 23C introduced by the Amendment Act came into force on September 20, 1957 and were therefore inapplicable to the export shipments from the year 1952 onwards till that date; and if at all, the firm could only be held liable under the amended section 23(1) read with section 23C as from that date.
It was contended that the word 'whoe ver ' in sub section
(1) of section 23 of the Act before its amendment denoted only a natural person and association of persons, such as a firm, would not fail within the connotation of the word 'whoever '.
The Director of Enforcement by his order dated August 17, 1978 repelled the contention and held that the firm and its partners had deliberately underinvoiced shipments at the time of export and also diverted the unde clared proceeds to their accounts with foreign banks with an intention not to repatriate the sale 141 proceeds in the prescribed manner within the prescribed period in respect of each shipment.
He dealt with the evi dence in detail with reference to the books of account and came to the conclusion that both Durgaprasad Saraf and Umashanker Aggarwal were incharge of, and responsible for, the conduct of the business of the partnership firm during the relevant period.
Neither of them produced any evidence to show that the contravention in question had taken place without their knowledge or that they had exercised due diligence to prevent such contravention.
They were accord ingly made liable for contravention of section 12(2) of the Act for failure to repatriate the foreign exchange earned on the aforesaid 52 shipments and were imposed a penalty of Rs. 15,00,000 on the partnership firm.
The Foreign Exchange Regulation Appellate Board however disagreed with the Direc tor of Enforcement and accepted the contention of the appel lants and accordingly reduced the amount of penalty to Rs.3, 10,000.
Shri Asoke Sen, learned counsel appearing for the appel lants with his usual fairness frankly concedes that article 20(1) of the Constitution would not in terms apply but, he contends, the principles embodied therein would still gov ern.
He has confined his submissions to only one point, namely, that the word 'whoever ' in sub section
(1) of section 23 before its amendment by Act XXXIX of 1957 connoted only a natural person i.e. those who actually contravened the provisions of section 12(1) of the Act by failure to repatriate full value of foreign exchange earned on exports and would not take in corporate liability and therefore association of persons, such as a firm, would not fall within the connota tion of the word 'whoever '.
The learned counsel further contends that by the Amendment Act, new section 23(1) was substi tuted and section 23C introducted w.e.f. September 20, 1957 and the effect of these provisions was that after that date, adjudication proceedings or criminal proceedings could be taken in respect of a contravention mentioned in section 23(1) while before the amendment only criminal proceedings before a Court could be instituted to punish the offender.
We are afraid, the contention cannot prevail.
It is not correct to say that the amended section 23(1) of the Act does not apply to contraventions which took place before the Amendment Act came into force.
Shri Madhusudan Rao, learned counsel ap pearing for the respondents rightly contends that on a combined reading of sections 23(1) and 12(2), the only possible construction is that the word 'whoever ' includes a person and therefore initiation of adjudication proceedings against the partnership firm was permissible.
He draws sustenance from the provision contained in subs.
(4) of section 23 which clearly contemplates prosecution of a company or other body corporate.
As regards the applicability of the amended 142 section 23(1) read with section 23C with regard to initiation of adjudication proceedings in respect of contraventions which took place before the Amendment Act came into force, he rightly contends that the matter is concluded by the deci sion of this Court in Union of India vs Sukumar Pyne, ; In order to appreciate the contentions raised, it is necessary to set out the statutory provisions insofar as relevant.
(1) Except with the previous general or special permission of the Reserve Bank, no person other than an authorised dealer shall . sell or lend to, or exchange with, any person not being an authorised dealer, any foreign exchange.
Where any export of goods has been made to which a notification under sub section (1) applies, no person entitled to sell, or pro cure the sale of, the said goods shall, except with the permission of the Reserve Bank, do or refrain from doing any act with intent to secure that (a) the sale of goods is delayed to an extent which is unreasonable having regard to the ordinary course of trade, or (b) payment for the goods is made otherwise than in the prescribed manner or does not represent the full amount payable by the foreign buyer in respect of the goods, subject to such deductions, if any as may be allowed by the Reserve Bank, or is delayed to such extent as aforesaid: Provided that no proceedings in respect of any contravention of this sub section shall be instituted unless the pre scribed period has expired and payment for the goods representing the full amount as afore said has not been made in the prescribed manner." Section 23(1) prior to its amendment and the original sub section
(3) now renumbered as section 23(4) are as follows: "23.
(1) Whoever contravenes any of the provi sions of this Act or of any rule, direction or order made thereunder 143 shall be punishable with imprisonment for a term which may extend to two years or with fine or with both, and any Court trying any such contravention may, if it thinks fit and in addition to any sentence which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or other property in respect of which the contravention has taken place shall be confis cated.
23.(4).
If the person committing an offence punishable under this section is a company or other body corporate, every director, manager, secretary or other officer thereof shall, unless he proves that the offence was commit ted without his knowledge or that he exercised all due diligence to prevent its commission, be deemed to be guilty of such offence. ' ' Sub section
(1) of section 23C is as follows: "23C. Offences by companies (1) If the person committing a contravention is a company, every person who, at the time the contravention was committed, was incharge of, and was responsi ble to, the company for the conduct of the business of the company as well as the compa ny, shall be deemed to be guilty of the con travention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.
" It is clear from these provisions that the word 'whoev er ' in sub section
(1) of section 23 of the Act before its amendment was comprehensive enough to include an association of per sons, such as a firm, and did not connote a natural person alone.
There is no reason why the word 'whoever ' in the section should not receive its plain and natural meaning.
According to the Shorter Oxford English Dictionary, vol. 2, p. 2543, 'whoever ' means ' 'any one who.
any who '.
The mean ing given in Webster Comprehensive Dictionary, International edn., vol. 2 at p. 1437 is 'any one without exception 'any person who '.
In our judgment.
the word 'whoever ' in the unamended section 23(1) must be read in juxtaposition with section 12(2) and must mean any person who commits a 144 contravention of that section without exception.
That must be the legal connotation of the word 'whoever ' and it neces sarily takes in corporate liability and includes any associ ation of persons such as a partnership firm.
That construc tion of ours is borne out by the plain language of sub section
(4) of section 23 inserted by Act XXXIV of 1950.
It provides that if the person committing an offence punishable under sub section
(1) of section 23 is a company or other body corporate, every director, manager, secretary or other officer thereof shall, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission, be deemed to be guilty of such offence.
The Act therefore clearly contemplated that adjudication pro ceedings under sub section
(1) of section 23 prior to its amendment could be initiated not only against the person who actually commits contravention but also casts vicarious liability on an association of persons such as a partnership firm or an artificial or a legal entity like a company.
It is therefore idle to contend that the appellants were not liable to pay ' penalty for failure to repatriate foreign exchange on 52 shipments of manganese ore effected through the years 1952 to 1958.
Upon that view, the learned Single Judge was right in setting aside the order of the Foreign Exchange Regula tion Appellate Board and restoring that of the Director of Enforcement levying a penalty of Rs. 15,00,000 on the appel lants for failure to repatriate foreign exchange in contra vention of section 12(2) of the Act.
The contention of the learned counsel that recourse could not be had to the amended section 23(1) read with section 23C of the Act in respect of the contravention of section 12(2) for failure on the part of the appellants to repatriate foreign exchange on shipments of manganese ore made prior to Septem ber 20, 1957, and there could be no initiation of adjudica tion proceedings under the amended section 23(1) read with section 23C or levy of penalty on the appellants must also fail for another reason.
In Sukumar Pyne 's case the Court reversed the decision of the Calcutta High Court in Sukumar Pyne vs Union of India & Ors., AIR (1962) Cal.
590 striking down section 23(1)(a) as being violative of article 14 of the Constitution.
Regarding the point, namely, whether section 23(1)(a) having been substituted by Amendment Act XXXIX of 1957 would have retro spective operation in respect of the alleged offence which took place in 1954, the High Court came to the conclusion that the petitioner had a vested right to be tried by an ordinary court of the land with such rights of appeal as were open to all and although section 23(1)(a) was procedural, where a vested right was affected, prima facie, it was not a question of procedure.
Therefore, the High Court came to the conclusion that the provision as to adjudication by the 145 Director of Enforcement could not have any retrospective operation.
It was held that 'the impairment of a fight by putting a new restriction thereupon is not a matter of procedure only '.
It impairs a substantive right and an enactment that does so is not retrospective unless it says so expressly or by necessary intendment.
The Court reversed the High Court and held that effect of these provisions was that after the amendment of 1957, adjudication or criminal proceedings could be taken up in respect of a contravention mentioned in section 23(1) while before the amendment only crimi nal proceedings before a Court could be instituted to punish the offender.
In repelling the contention advanced by Shri N.C. Chatterjee that the new amendments did not apply to contraventions which took place before the Act came into force, the Court observed: "In our opinion, there is force in the conten tion of the learned Solicitor General.
As observed by this Court in Rao Shiv Bahadur Singh vs The State of Vindhya Pradesh, ; , a person accused of the commission of an offence has no vested right to be tried by a particular court or a particular proce dure except in so far as there is any consti tutional objection by way of discrimination or the violation of any other fundamental right is involved.
It is well recognised that "no person has a vested right in any course of procedure "(vide Maxwell 11th Edition, p. 216), and we see no reason why this ordinary rule should not prevail in the present case.
There is no principle underlying article 20 of the Constitution which makes a right to any course of procedure a vested right.
" These principles are clearly attracted to the facts and circumstances of the present case and therefore the initia tion of adjudication proceedings for failure to repatriate foreign exchange on shipments of manganese ore prior to September 20, 1957, the date when the Amendment Act came into force, was permissible.
The appeal must therefore fail and is dismissed with costs.
N.P.V. Appeal dis missed.

dataset_name: IN-Abs

summary/full:
The Director of Enforcement initiated adjudication proceedings against the appellants a partnership firm, under Section 23(1), as amended, for failure to repatriate the full value in foreign exchange earned by it against export shipments of manganese ore made during 1952 1958, and thereby contravening Section 12(2), as well as Section 4(1) of the Foreign Exchange Regulation Act, 1947.
The appellants did not contest the charge under Section 12(2) of the Act but questioned the liability of the firm on the ground that the amended Section 23(1) as well as Section 23C introduced by the Amendment Act came into force on September 20, 1957 and were, therefore, inapplicable to the export shipments from the year 1952 onwards till that date and if at all, the firm could only be held liable under the amended Section 23(1) read with Section 23C as from that date.
It was con tended that the word 'whoever ' in sub section (1) of Section 23 of the Act before its amendment denoted only a natural person, and association of persons, such as a firm, would not fall within the connotation of the word 'whoever '.
The Director of Enforcement held that the firm and its partners had deliberately underinvoiced shipments at the time of export and also diverted the undeclared proceeds to their accounts with foreign banks with an intention not to repa triate the sale proceeds in the prescribed manner within the prescribed period in respect of each shipment.
He also held that the two persons incharge of, and responsible for, the conduct of the business of the partnership firm during the relevant period did not produce any evidence to show that the contravention in question had taken place without their knowledge or that they had exercised due diligence to pre vent such contravention, and they were accordingly made liable for contravention of Section 12(2) of the Act for failure to repatriate the foreign exchange earned on the shipments and a penalty was imposed on the partnership firm.
138 The Foreign Exchange Regulation Appellate Board, howev er, disagreed with the Director of Enforcement, accepted the contention of the appellants and accordingly reduced the amount of penalty.
The High Court allowed the appeal of the Director of Enforcement and restored the original order of the Director of Enforcement.
In appeal to this Court it was submitted on behalf of the appellants that though Article 20(1) of the Constitution would not in terms apply, the principles embodied thereto would still govern and that the word 'whoever ' in sub sec tion (1) of Section 23 before its amendment by Act XXXIX of 1957 connoted only a natural person i.e. those who actually contravened the provisions of Section 12(1) of the Act by failure to repatriate full value of foreign exchange earned or exports and would not take in corporate liability and, therefore, association of persons, such as a firm, would not fall within the connotation of the word 'whoever ', that by the Amendment Act, a new Section 23(1) was substituted and Section 23C was introducted and the effect of these provi sions was that after September 20, 1987 adjudication pro ceedings or criminal proceedings could be taken in respect of a contravention mentioned in Section 23(1), while before the amendment only criminal proceedings before a court could be instituted to punish the offender.
On behalf of the respondents it was contended that on a combined reading of Section 23(1) and 12(2), the only possi ble construction was that the word 'whoever ' includes a person and, therefore, initiation of adjudication proceed ings against the partnership firm was permissible and sub section (4) of Section 23 clearly contemplates prosecution of a company or other body corporate.
Dismissing the appeal, this Court, HELD: 1.
It is clear from Sections 4(1), 12(2), 23(1), 23(4) and 23C that the word 'whoever ' in sub section (1) of Section 23 of the Act before its amendment was comprehensive enough to include an association of persons, such as a firm, and did not connote a natural person alone.
The word 'whoev er ' in the unamended Section 23(1) must be read in juxtapo sition with Section 12(2) and must mean any person who commits a contravention of that Section without exception.
That must be the legal connotation of the word 'whoever ' and it necessarily takes in corporate liability and includes any association of persons such as a partnership firm.
Such a construction is borne out by the plain language of sub section (4) of Section 23 inserted by the Act XXXIV of 139 1950 which provides that if the person committing an offence punishable under sub section (1) of Section 23 is a company or other body corporate, every director, manager, secretary or other officer thereof, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission, be deemed to be guilty of such offence.
The Act, therefore, clearly contem plated that adjudication proceedings under sub section (1) of Section 23 prior to its amendment could be initiated not only against the person who actually commits contravention but also casts vicarious liability on an association of persons such as a partnership firm or an artificial 'or a legal entity like a company.
[143FH; 144A C] The High Court was right in setting aside the order of the Foreign Exchange Regulation Appellate Board and restor ing that of the Director of Enforcement levying a penalty of Rs. 15,00,000 on the appellants for failure to repatriate foreign exchange in contravention of Section 12(2) of the Act.
The initiation of adjudication proceedings for failure to repatriate foreign exchange on shipments of manganese ore prior to September 20, 1957, the date when the Amendment Act came into force, was permissible.
[144D; F] Union of India vs Sukumar Pyne, ; , referred to.


judgement:
Petition No. 6693 of 1986 etc.
in Writ Petition (Crl) No. 1171 of 1982.
Under Article 32 of the Constitution of India.
Petitioner in person.
B. Datta, Additional Solicitor General, Jagdeep Kishore, T.V.S.N. Chari, Ms. K. Jaiswal, D.N. Mishra, B.M. Bagaria, P.H. Parekh, M.K.D. Namboodri, Kailash Vasdev, H.K. Puri, R.K. Mehta, section Kaushal and C.V.S. Rao for the Respondent/Applicant.
The Judgment of the 'Court was delivered by Crl.
M.P. No. 3141/86 BHAGWATI, C J: This application has been filed by the Indian Council for Child Welfare for obtaining a direction that when it is required to act as a scrutinising agency by the Court, a certain amount should be directed to be paid to it for the scrutinising services rendered by it, since the scrutinising services would require employment of staff and other necessary expenditure.
Though this application is made only by the Indian Council for Child Welfare, we apprehend that all other scrutinising agencies must also be facing the same difficulty.
We would therefore direct that when the Court makes an order appointing a foreign parent as guardian of a child with a view to its eventual adoption in the foreign country, the Court will provide that such amount shall be paid to the scrutinising agency for its services as the Court thinks reasonable, having regard to the nature of the case and the extent and volume of the services rendered by the scrutinising agency.
We think that in the case of an application for appointment of a foreign parent as guardian of a child the Court would be justified in directing payment of any reasonable amount varying between 388 Rs.450 and Rs.500 but in appropriate cases where the Court so thinks fit, such amount may even exceed Rs.500.
This amount shall be directed to be paid to the scrutinising agency by the recognised placement agency which has proc essed the application of the foreign parent for being ap pointed guardian of the child with a view to its eventual adoption and the such placement agency shall have the right to recover such amount from the foreign parent whose appli cation for guardianship it has processed.
This direction will also apply mutatis mutandis in cases where an, Indian parent makes an application for appointing himself or her self as guardian of a child or a Hindu parent applies for permission to adopt a child under section 9 sub section (4) of the and the case is referred to a scrutinising agency by the Court, but in such cases the amount to be fixed by the Court for meet ing the expenses of the scrutinising agency shall not exceed Rs.150.
Both in the case of an application on behalf of a foreign parents as also in the case of an application on behalf of an Indian or Hindu parent, a copy of the order made by the Court appointing the scrutinising agency shall be supplied to the scrutinising agency immediately after the order is made, together with the papers and documents sub mitted to the Court in support of the application for ap pointment of guardian or for permission to adopt.
Crl M.P. No. 3142/86 This application has been made by the petitioner since according to the petitioner there have been instances of illegal sales of babies.
We may point out that by its very nature it is not possible to devise a fool proof formula which will in all cases prevent illegal sales of babies but a procedure can and must be formulated which will definitely reduce the possibility of such illegal sales.
With this end in view, we would direct that all nursing homes and hospi tals which come across abandoned or destitute children or find such children abandoned in their pre points or other wise shall immediately give information in regard to the discovery or find of such children to the Social Welfare Department of the concerned Government where such nursing homes or hospitals are situate in the capital of the State and in other cases to the collector of the District and copies of such intimation will also be sent to the Foster Care Home where there is such a home run by the Government as also to the recognised placement agencies functioning in the city or town where such nursing homes or hospitals are situate.
The Social Welfare Department has also the Collec tor of the District will take care to ensure that this direction given by us is followed by the nursing homes and hospitals within their jurisdiction and if necessary intima tion in regard to the discovery or find of abandoned or destitute children, if not sent by any particular nursing homes or hospitals to the Foster Care Home and the recog nised placement agencies shall be forwarded to them by the Social Welfare Department and the Collector of the District.
389 The Foster Care Home run by the Government as also the recognised placement agencies in the capital of the State or in the District will also exchange with one another informa tion regarding Indian parents who wish to take children in adoption so that the Foster Care Home as also each recog nised placement agency will have a consolidated list of such Indian parents.
Each Indian parent who is registered with the Foster Care Home or a recognised placement agency as a prospective parent wishing to take a child in adoption and who has been informed by the recognised placement agency that a child is available for adoption will be entitled to information about all the children available for adoption in the group specified by him, according to the consolidated list maintained by the recognised placement agency.
CrL M.P. No. 4455/86 This Court directed in paragraph 22 of the main judgment dated 6th February 1984 that the notice of the application for guardianship should not be published in any newspaper and this was reiterated in the Supplementary Judgment dated 27th September, 1985, because otherwise the biological parents would come to know as to who are the parents taking the child in adoption.
The question raised in the present application is as to whether this direction should be con fined only to cases of adoption by foreign parents or it should be extended to cover cases where Hindu parents seek to take a child in adoption and make an application to the Court for that purpose.
We are of the view that having regard to the object and purpose for which this direction has been given, it cannot be confined to the case of adop tion by foreign parents.
It must also cover the cases where Hindu Parents make an application under section 9 sub sec tion (4) of the .
We would, therefore, clarify the direction given by us and direct that notice of an application under Section 9 sub section (4) of the will also not be published in any newspaper.
The present application will stand disposed of accordingly.
Crt M.P. 4064/86 This application has been filed by the Karnataka State Council for Child Welfare complaining that the object and purpose for which various directions were given by this Court in its main Judgment dated 6th February, 1984 and the supplemental Judgment dated 27th September, 1985 is being defeated by the practice which has been adopted in some places in the State of Karnataka where unrecognised agencies are using recognised placement agencies as post offices for processing cases in respect of children which are in the custody of the unrecognised agencies and with which the recognised placement agencies have nothing to do.
The result of this practice is that the recognised placement 390 agencies merely act as conduit pipes for making and process ing applications for appointment of a foreigner as guardian of a child, even though the child is not with them at all and they are not even in contact with the foreign sponsoring agency or the foreigner wishing to take the child in adop tion.
This practice, if it is prevalent in any part of the State of Karnataka or for that matter, in the country, must meet with our disapprobation.
It is the recognised placement agency which has to prepare the child study report including the medical report for submission to the Court alongwith the application for appointment of the foreigner as guardian of the child and this obviously cannot be done unless the child is with the recognised placement agency, because the recog nised placement agency has to observe the child and gather full information about it in order to be able to make the report for submission to the Court.
The recognised placement agency must therefore necessarily have the custody of the child for a period of at least one month before it can prepare d really genuine and satisfactory child study report alongwith the medical report.
If we permit the recognised placement agency to act merely as post office or conduit pipe for making and processing an application for guardian ship on behalf of an unrecognised agency, it would lead to manifold evils which it has been our endeavour to eliminate.
We would therefore direct that no recognised placement agency shall make and process an application for appointment of a foreigner as guardian of a child with a view to its eventual adoption, unless the child has been in the custody of the recognised placement agency for a period of at least one month before the making of the application and it shall not be permitted to act merely as a post office or conduit pipe for the benefit of an unrecognised agency.
M.P. No. 4065/86 This application of the Delhi Council for Child Welfare seeks clarification in respect of certain observations made by this Court in paragraph 6 of the supplemental judgment dated 27th September 1985.
This Court, while providing that children who are found abandoned should not be assumed to be free for adoption but they must be produced before the Juvenile Court so that further inquiries can be made and their parents or guardians can be traced, directed the Juvenile Courts "that when children are selected for adop tion, release order should be passed by them expeditiously and without delay and proper vigilance in this behalf must be exercised by the High Court".
The Delhi Council for Child Welfare has pointed out in this application made by it for clarification that the Juvenile Courts are construing this observation literally and mechanically and are taking the view that release orders in respect of the children produced before them are to be passed "expeditiously and without delay" only in cases where it can be said that the children "are selected for adoption" and since no child can possibly be offered in adoption unless it is 391 declared legally free for adoption by the Juvenile Court, this direction given by the court for expeditious passing of release orders in cases where "children are selected for adoption" has become meaningless and futile and the Court should suitably modify it.
This contention raised on behalf of the Delhi Council for Child Welfare is well founded, because obviously no child can be offered for adoption unless the release order is passed in respect of it and it would therefore be futile to provide that release order shall be passed expeditiously and without delay in case of children selected for adoption.
We would therefore modify this direction given by us in paragraph 6 of the supplemen tal Judgment dated 27th September 1985 by providing that whenever a child is produced before the Juvenile Court by a recognised placement agency for a release order declaring that the child is abandoned or destitute so as to be legally free for adoption, the Juvenile Court must in all such cases complete the inquiry within one month from the date of the application and proper vigilance should be exercised by the High Court for the purpose of ensuring that this new direc tion given by us is complied with by the Juvenile Courts.
We would ask the High Courts to all for monthly reports from the Juvenile Courts stating as to how many applications for release orders, that is, for declaring children abandoned or destitute, are pending before each Juvenile Court, when they were filed and if they have not been disposed of within one month, what is the reason for the delay.
We are very anxious that in respect of abandoned or destitute children, there should be no undue delay in offering them for adoption to Indian parents and, failing Indian parents, to foreign parents, because it is absolutely essential that such chil dren should be able to secure love and affection of adoptive parents at the earliest.
Indeed, nothing can take the place of love and affection of parents and every effort must therefore be made to see that no procedural delays hold up the process of such children being taken in adoption.
This new direction given by us will also be applicable in cases where, the Juvenile Court not being in existence, applica tion for release order is required to be made to the Social Welfare Department in the capital of the State or to the Collector of the District in other places.
The Social Wel fare Department or the Collector, as the case may be, will dispose of such application within one month of its making.
M.P. No. 6693/85 There were several points raised in this application filed on behalf of Church of North India, Holy Cross Social Service Centre, Missionaries of Charity and Delhi Council for Child Welfare.
The first point related to a practice which is being followed in Delhi in regard to making of an application.
for appointment of a foreigner as guardian of a child with a view to its eventual adoption.
The practice which is followed in Delhi is that the application for appointment of a foreigner as guardian is required to be signed by the representative of the recognised placement agency not only as Attorney of the 392 foreigner but also in his personal capacity, so that the application becomes an application for appointment of the foreigner as well as the representative of the recognised placement agency as joint guardians of the child.
The Court granting the application also appoints the foreigner as well as the representative of the recognised placement agency as joint guardians and both continue as joint guardians until the child is adopted by the foreigner in his own country.
This procedure entails a continued obligation on the part of the recognised placement agency which is totally unnecessary and in fact, such procedure is not followed in any other part of the country.
It would in our opinion be sufficient to ensure the eventual adoption of the child and its proper care and welfare in the meantime, if a bond is taken from the recognised placement agency to secure performance of the obligations and conditions laid down by the Court.
We would therefore direct that the court entertaining an application for appointment of a foreigner as guardian of a child should not require the representative of the recognised placement agency processing the application to join the application as a co petitioner nor should the court insist on appointing such representative as joint guardian of the child alongwith the foreigner.
Where a representative of the recognised placement agency has already been appointed joint guardian prior to the making of this Order, he or she will stand discharged on the child being adopted by the foreign par ents.
The second point raised on behalf of the applicants was in regard to the delay which is at present occurring in the procedure forgiving a child in adoption to a foreigner in view of the time schedule fixed by the court in the main judgment dated 6th February, 1984 and the supplemental judgment dated 27th September 1985.
The applicants contended that the entire process laid down by the court is a long drawn out process running into a period of about 8 to 9 months and that would defeat the object of expedition in giving a child in adoption.
The applicants pointed out that under our judgments, where there is a child surrendered by the biological parents, a minimum period of three months is allowed to the biological parents to reconsider their deci sion and in case of an abandoned or destitute child, a period of three months is provided for the Juvenile Court, Social Welfare Department or the Collector to clear the child and declare it free for adoption and after the child is declared free for adoption, a maximum period of two months is provided to find an Indian family for the child which period is now curtailed to three to four weeks and thereafter it takes another four weeks in mail for sending the child study and medical reports to the sponsoring agency abroad for being handed over to the for eigner for his approval and awaiting the receipt of approval and then a further period of two months is allowed for the court to process the case and thereafter on an average it takes another month or more to get the passport and visa formalities completed.
It thus takes about 8 to 9 months after the abandonment of the child before the child is able to join its adoptive parents.
393 This is, according to the applicants, too long a period and the directions given by us should be modified with a view to curtailing this period.
We agree that the point raised on behalf of the applicants deserves serious consideration.
We would therefore direct that in cases where a child is relin quished by its biological parents or by an unwed mother under a Deed of Relinquishment executed by the biological parents or the unwed mother it should not be necessary to go through the Juvenile Court or the Social Welfare Department of the Collector to obtain a release order declaring the child free for adoption but it would be enough to produce the Deed of Relinquishment before the court which consider the application for appointment of a foreigner as guardian of the child.
It is only where a child is found abandoned or is picked up as a destitute that the procedure of going through the Juvenile Court or the Social Welfare Department or the Collector would have to be adopted.
As soon as aban doned or destitute child is found by a social or child welfare agency, a report should be immediately lodged with the local police station along with a photograph of the child.
The Inspector General of Police or the Commissioner of Police, as the case may be, should instruct every police station within his jurisdiction to immediately undertake an inquiry for the purpose of ascertaining and tracing the parents of the child in respect of which the report is made and such inquiry must be completed within one month of the report being lodged with the police station.
Meanwhile, the social or child welfare agency which has found the abandoned or destitute child may make an application to the Juvenile Court or to the Social Welfare Department or the Collector, as the case may be, for a release order declaring that the child is legally free for adoption and since the report the inquiry to be made by the police has under this direction to be completed within one month, it should be possible for the Juvenile Court or the Social Welfare Department or the Collector to make a release order declaring the child legal ly free for adoption within a period of five weeks from the date of making the application.
If, as a result of the inquiry by the police the biological parents are traced, the Juvenile Court or the Social Welfare Department or the Collector, as the case may be, will issue a notice to the biological parents and give them an opportunity to reconsid er their decision after explaining the implications of the child being declared legally free for adoption.
But, this opportunity shall be availed of by the biological parents within a period of one week and no more.
This procedure will considerably reduce the time taken up in giving an opportu nity to the biological parents to reconsider their decision as also in getting the child cleared for adoption by the Juvenile Court or the Social Welfare Department or the Collector.
Whilst the application for a release order is pending before the Juvenile Court or the Social Welfare Department or the Collector, the recognised placement agency which has found the child or to which the child is trans ferred by the social or child welfare agency finding the child, may proceed to explore the possibility of offering the child in adoption and the child may be offered simulta neously to Indian parents as well as foreign 394 parents, subject to the clearance of the child for adoption by the Juvenile Court or the Social Welfare Department or the Collector; The recognised placement agency need not wait until the release order is made by the Juvenile Court or the Social Welfare 'Department or the Collector, before offering the child in adoption, because otherwise even with the reduced time limit which we have now provided, it would take at least six weeks before the child can be offered in adop tion.
This time lag of six weeks can be eliminated if the child is allowed to be offered in adoption even while the application for release order is pending and this would also eliminate the delay of about two months which would occur if the child is not allowed to be offered in adoption to the foreign parents until after the effort to find an Indian parent for the child has failed.
If this procedure is fol lowed, it should be possible to find an Indian parent or, failing that, a foreign parent to take the child in adoption within a period, of about 6 to 8 weeks from the time when the abandoned or destitute child is formed by the concerned social or child welfare agency.
We are informed that this procedure is already being followed in Bombay and, in our view, it should be adopted in all jurisdictions.
We then turn to the third point raised on behalf of the applicants and that relates to transfer of children from one State to another for the purpose of being given in adoption.
We have already dealt with this subject in paragraph 7 of the supplemental judgment dated 27th September 1985 and we do not propose to depart from what we have said in that paragraph of the judgment.
But we should like to make it dear that where an abandoned or destitute child is found by a recognised placement agency or is brought to it by another social or child welfare agency or individual, it should be open to such recognised placement agency to transfer the child to its branch in another State after the completion of the inquiry by the Juvenile Court or Social Welfare Depart ment or the Collector, as the case may be.
Where such recog nised placement agency has an associate social or child welfare agency in another State, it should be open to the recognised placement agency to transfer the child to such associate social or child welfare agency in the other State, provided firstly, that the inquiry is complete by the Juve nile Court or the Social Welfare Department or the Collector and a release order is passed, and secondly, the associate social or child welfare agency has been notified by the recognised placement agency as its associate to the Govern ment of the State where the recognised placement agency is functioning as also to the Government of the State where the associate social or child welfare agency is operating.
If, for any compelling reason, it becomes necessary for the recognised placement agency to transfer a child either to its own branch or 'to an associate social or child welfare agency before completion of the inquiry by the Juvenile COurt or the Social Welfare Department or the Collector, as the case may be, the recognised placement agency shall be allowed to do so after obtaining permission of the Juvenile 395 Court or the Social Welfare Department or the Collector in that behalf.
We would also direct the Government of India to publish at least once in a year a list of recognised placement agencies and their associate social or child welfare agen cies operating in each State in two leading newspapers having wide circulation in that State, one in the English language and the other in the regional language of that State, so that the people may know which are the recognised placement agencies and their associates which are function ing in that State.
We would also direct the Government of India to send to the District Courts in each State through the High Court a list of the recognised placement agencies functioning within the State together with the names and particulars of their associate social or child welfare agencies.
Such list must be supplied to the District Judges at least once in a year and whenever any charges or modifi cations are made in the list, such changes/or modifications must be intimated to the District Judges through the High Court.
One other point raised on behalf of the applicants was that the outer limit of Rs.4,000 fixed by the Court in the supplemental judgment dated 27th September 1985 for reim bursement of expenses including legal expenses, administra tive expenses, preparation of child study report, prepara tion of medical and I.Q. Reports, passport and visa expenses and conveyance expenses, was inadequate, particularly having regard to the high fees charged by lawyers and increase in the visa charges for United States and some other countries and that this outer limit should, therefore, be raised from Rs.4,000 to Rs.6,000.
There is force in this submission made on behalf of the applicants, because there is no doubt that the fees of lawyer have gone up quite high and the visa expenses have also more than doubled in recent times.
We, therefore, agree that the recognised placement agency proc essing the application of a foreigner for being appointed guardian of a child with a view to its eventual adoption, should be entitled to recover from the foreigner, cost incurred in preparing and filing the application and prose cuting it in court including legal expenses, administrative expenses, preparation of child study report, preparation of medical and I.Q. reports, passport and visa expenses and conveyance expenses and that such expenses may be fixed by the court at a figure not exceeding Rs.6000.
The applicants also drew our attention to the case of foreigners living in India for one or more years and stressed the difficulty involved in requiring their cases to be sponsored by a foreign social or child welfare agency and the homestudy report in their cases to be prepared by such sponsoring foreign agency.
This difficulty is a genuine difficulty.
It would be quite impracticable to ask a for eigner living in India and wishing to take an Indian child in adoption to obtain a home study report from an agency base in his home country.
It would 396 be impossible for any foreign social or child welfare agency to sponsor the case of such foreigner who is living in India and it would equally be impossible for any such social or child welfare agency to prepare a home,study report in respect of such foreigner.
We would, therefore, direct that in case of a foreigner who has been living in India for one year or more, the home study report and other connected documents may be allowed to be prepared by the recognised placement agency which is processing the application of such foreigner for guardianship of a child with a view to its eventual adoption and that in such a case the court should not insist on sponsoring of such foreigner by a social or child welfare agency based in the country to which such foreigner belongs nor should a home study report in respect of such foreigner be required to be obtained from any such foreign social or child welfare agency.
The home study report and other connected documents prepared by the recog nised placement agency should be regarded as sufficient.
The last point raised on behalf of the applicants arises out of paragraph 12 of the supplemental judgment dated 27th September 1985.
We pointed out in that paragraph of the supplemental judgment that ordinarily the court entertaining an application on behalf of a foreigner for being appointed guardian of a child with a view to its eventual adoption should not insist on making of deposit by the foreigner as and by way of security for due performance of the obliga tions undertaken by him, but in an appropriate case, the court exceptionally pass an order requiring him to make such deposit.
We observed that the execution of a bond would ordinarily be sufficient: and we made two alternative sug gestions which may be implemented in regard to the execution of such bond.
We have considered this question once again in view of the plea raised on behalf of the applicants and we are of the view that the court need not insist on security or cash deposit or hank guarantee and it should be enough if a bond is taken from the recognised placement agency which is processing the application and such recognised placement agency may in its turn take a corresponding bond from the sponsoring social or child welfare agency in the foreign country.
Ordinarily, the sponsoring social or child welfare agency in the foreign country would honour the bond in case the condition of the bond is broken, because, obviously: if it fails to do so, no recognised placement agency in India would in future deal with it and moreover the name of such foreign social or child welfare agency would be liable to be deleted from the list of foreign social or child welfare agencies which are recognised as sponsoring agencies for the purpose of adoption.
These were the only points raised for our consideration in the applications made on behalf of various social and child welfare agencies.
We have dealt with these points in some detail and we hope and trust that the 397 clarifications given by us will go a long way towards reduc ing the delay in the procedure to be followed in giving a child in adoption to a foreigner and will also at the same time protect and safeguard the interest of the child by preventing any possibility of abuse.

summary/full:
The Supreme Court in the judgment of Laxmi Kant Pandey vs Union of India dated 6th February, 1984 and the supple mental judgment dated 27th September, 1985 had formulated the normative and procedural safeguards to be followed in giving an Indian child in adoption to foreign parents.
Since there were certain difficulties in implementing the afore said norms and principles, the petitioners moved the present criminal miscellaneous petitions for seeking clarification/further directions in the matter.
Disposing of the petitions, 384 HELD: 1.
When the court makes an order appointing a foreign parent as guardian of a child with a view to its eventual adoption in the foreign country, the court will provide that such amount shall be paid to the scrutinising agency for its services as the court thinks reasonable having regard to the nature of the case and the extent and volume of the services rendered by the scrutinising agency.
In case of an application for appointment of a foreign parent as guardian of a child the Court would be justified in directing payment of any reasonable amount varying be tween Rs.450 and Rs.500 but in appropriate cases where the courts so think fit.
such amount may even exceed Rs.500.
This amount shall be directed to be paid to the scrutinising agency by the recognised placement agency and such placement agency shall have the right to recover such amount from the foreign parent whose application for guardianship it has processed.
This direction will also apply mutaris mutandis in cases where an Indian parent makes an application for appointing himself or herself as guardian of a child or a Hindu parent applies for permission to adopt a child under s.9 sub s.(4) of the and the case is referred to a scrutinising agency by the Court, but in such cases the amount to be fixed by the Court for meeting the expenses of the scrutinising agency shall not exceed Rs.150.
[387G 388C] 2.1 All nursing homes and hospitals which come across abandoned or destitute children or find such children aban doned in their precincts or otherwise shall immediately give information in regard to the discovery or find of such children to the Social Welfare Department of the concerned Government where such nursing homes or hospitals are situate in the capital of the State and in other cases to the Col lector of the District and copies of such intimation will also be sent to the Foster Care Home where there is such a home run by the Government as also to the recognised place ment agencies functioning in the city or town where such nursing homes or hospitals are situate.
[388F G] 2.2 Each Indian parent who is registered with the Foster Care Home or a recognised placement agency as a prospective parent wishing to take a child in adoption and who has been informed by the recognised placement agency that a child is available for adoption will be entitled to information about all the children available for adoption in the group speci fied by him, according to the consolidated list maintained by the recognised placement agency.
[389B] 3.
The Supreme Court had directed in paragraph 22 of the main judgment that the notice of the application for guard ianship in cases of adoption by foreign parents should not be published in any newspaper because otherwise the biologi cal parents would come to know as to who are the parents taking the child in adoption.
This.direction must also cover the cases where 385 Hindu Parents make an application under s.9 sub s.(4) of the .
[389D E] 4.
No recognised placement agency shall make and process an application for appointment of a foreigner as guardian of a child with a view to its eventual adoption, unless the child has been in the custody of the recognised placement agency for a period of at least one month before the making of the application and it shall not be permitted to act merely as a post office or conduit pipe for the benefit of an unrecognised agency.
[390D E] 5.
Whenever a child is produced before the Juvenile Court by a recognised placement agency for a release order declaring that the child is abandoned or destitute so as to be legally free for adoption, the Juvenile Court must in all such cases complete the inquiry within one month from the date of the application and proper vigilance should be exercised by the High Court.
High Courts should call for monthly reports from the Juvenile Courts stating as to how many applications for release orders, that is, for declaring children abandoned or destitute, are pending before each Juvenile Court, when they were filed and if they have not been disposed of within one month, what is the reason for the delay.
Where the Juvenile Court is not in existence, application for release order is required to be made to the Social Welfare Department in the capital of the State or to the Collector of the District in other places.
The Social Welfare Department or the Collector, as the case may be, will dispose of such application within one month of its making.
[391B D, F] 6.
The Court entertaining an application for appointment of a foreigner as guardian of a child should not require the representative,of the recognised placement agency processing the application to join the application as a co petitioner nor should the court insist on appointing such representa tive as joint guardian of the child alongwith the foreigner.
[392C] 7.
Where a child is relinquished by its biological parents or by an unwed mother under a Deed of Relinquishment executed by the biological parents or the unwed mother it should not be necessary to go through the Juvenile Court or the Social Welfare Department or the Collector to obtain a release order declaring the child free for adoption but it would be enough to produce the Deed of Relinquishment before the court which considered the application for appointment of a foreigner as guardian of the child.
[393B] 8.1 Where an abandoned or destitute child is found by a recognised placement agency or is brought to it by another social or child welfare agency or individual it should be open to such recognised placement agency to transfer the child to its branch in another State after the completion of the inquiry by the 386 juvenile court or Social Welfare Department or the Collec tor, as the case may be.
Where such recognised placement agency has an associate social or child welfare agency in another State, it should be open to the recognised placement agency to transfer the child to such associate social or child welfare agency in the other State, provided firstly, that the inquiry is complete by the juvenile court or the Social Welfare Department or the Collector and a release order is passed, and secondly, the associate social or child welfare agency has been notified by the recognised placement agency as its associate to the Government of the State where the recognised placement agency is functioning as also to the Government of the State where the associate social or child welfare agency is operating.
If, for any compelling reason, it becomes necessary for the recognised placement agency to transfer a child either to its own branch or to an associate social or child welfare agency before completion of the inquiry by the juvenile court or the Social Welfare Department or the Collector, as the case may be, the recog nised placement agency shall be allowed to do so after obtaining permission of the juvenile court or the Social Welfare Department or the Collector in that behalf.
[394E 395A] 8.2 The Government of India is directed (i) to publish at least once in a year a list of recognised placement agencies and all their associate social or child welfare agencies operating in each State in two leading newspapers; and (ii) to send to the District Courts in each State through the High Court a list of the recognised placement agencies functioning within the State together with the names and particulars of their associate social or child welfare agencies.
Such list must be supplied to the District Judges at least Once in a year and whenever any changes or modifications are made in the list, such change or modifica tions most be intimated to the District JUdges through the High Court.
[395 B C] 9.
The recognised placement agency processing the appli cation of a foreigner for being appointed guardian of a child with a view to its eventual adoption, should be enti tled to recover from the foreigner, cost incurred in prepar ing and filing the application and prosecuting it in court including legal expenses, administrative expenses prepara tion of child study report, preparation of medical and I.Q. Reports, passport and visa expenses and conveyance expenses and that such expenses may be fixed by the court at a figure not exceeding Rs.6000.
[395F] 10.
In case of a foreigner who has been living in India for one year or more, the home study report and other con nected documents may be allowed to the prepared by the recognised placement agency which is processing the applica tion of such foreigner for guardianship of a child with a view to its eventual adoption and that in such a case the court should not insist on sponsoring of such foreigner by a social or child welfare agency based in the 387 country to which such foreigner belongs nor should a home study report in respect of such foreigner be required to be obtained from any such foreign social or child welfare agency.
[396B] 11.
The court entertaining an application on behalf of a foreigner for being appointed guardian of a child with a view to its eventual adoption need not insist on security or cash deposit or bank guarantee and it should be enough if a bond is taken from the recognised placement agency which is processing the application and such recognised placement agency may in its turn take a corresponding bond from the sponsoring social or child welfare agency in the foreign country.
[396D F]