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Judgment
Writ Appeals Nos. 554/71, 69/72 and 70/72 are directed against the judgment of Ramaprasada Rao J, dismissing the Writ Petitions Nos.
1916/71, 1917/71 and 1918/71 preferred under Article 226 of the Constitution of India for the issue of writs of certiorari calling for the records in
RC. No. 2/71-SIV relating to the warrants issued by the Chief Presidency Magistrate, Egmore, Madras, dated June 7, 1971, and to quash the
said warrants, while writ Appeals Nos. 555/71, 71/72 and 72/72 are directed against the judgment of Ramaprasada Rao J. dismissing Writ
Petitions Nos. 2394, 2395 and 2396 of 1971 preferred under Article 226 of the Constitution of India for the issue of writs of mandamus directing
the first respondent therein, the Company Law Board, to withdraw the complaint lodged by it with the Central Bureau of Investigation and to
refrain from prosecuting their investigation or taking any further action in the matter of the alleged violation of Sections 420, 477 and 120B of the
Indian Penal Code in relation to the appellant-companies.
The first appellants in these writ appeals, namely, the Indian Express (Madurai) Private Ltd., the Express Newspapers Private Ltd. and the
Andhra Prabha Private Ltd., are the subsidiaries of the Indian Express Newspapers (Bombay) Private. Ltd. The aforesaid group of companies
owns, prints and publishes newspapers and periodicals from different centres in India, such as Madras, Madurai, Vijayawada, etc. The second
appellant in these writ appeals is R. N. Goenka, who at all material times was and is still connected with the aforesaid companies as managing
director, director or shareholder.
During August-September, 1969, one Mr. N. H. Iyer, an officer of the Company Law Board, inspected the books of accounts of the Express
Newspapers Private Ltd., Madras, and the Indian Express (Madurai) Private Ltd., u/s 209(4) of the Companies Act. He is said to have examined
all the ledgers, excepting one volume which was not available and perused the minutes book kept by the company and also the accounts of
brokers who had commercial dealings with the company and had visited the registered office of the Indian Express (Madurai) Private Ltd.,
inspected the investments and the ledger accounts pertaining thereto and took relevant copies of accounts and extracts therefrom. Subsequently
about a year later, between August 14, 1970, and August 21, 1970, one Mr. Puri, an officer authorised to act u/s 209 of the Companies Act of
1956, inspected the records of the Andhra Prabha Ltd. at Vijayawada, including the minutes book, bank files, accounts, etc. On September 19,
1970, Mr. Puri submitted an elaborate inspection report u/s 209(4) of the Companies Act in respect of M/s. Andhra Prabha Ltd., Vijayawada. In
his report Mr, Puri had stated that during the course of his inspection he noticed certain transactions carried out by the company which were very
shady in character and questionable. He felt that there was a fictitious transaction of purchase of Indian printing paper booked in 1967-68 and
consequent inflation of stock of newsprint of the company with intent to defraud the Punjab National Bank on the one hand and with a view to
camouflage the heavy debit in the account of and due from M/s. Gopikishan Ramkishan in the books of M/s. Express Newspapers Private Ltd., at
the time of their annual closing of accounts as at March 31, 1968, on the other hand, and a fictitious loan to M/s. Radhakrishna Dahnia & Co., the
firm of share-brokers, and false statements had been made to the Indian Bank Ltd. for procuring overdraft facility against pledge of shares and
misappropriation of shares in the Indian Iron and Steel Company and there were also instances of suppression of facts and of otherwise incorrect
statements in the audited balance-sheet and profit and loss account of the company with intent to defraud the public. In those circumstances, Mr.
Puri concluded his report by saying that in view of the several transactions involving intent to defraud which had come to his notice during the
course of his inspection, it was felt that a thorough investigation into the affairs of that company and its sister companies would be much more
revealing and that the transactions quoted in the report satisfied the requirements of Section 237(b) of the Companies Act for ordering an
investigation. After considering that report, the Company Law Board, instead of ordering an investigation u/s 237(b) of the Companies Act,
preferred on April 2, 1971, a complaint to the Director of the Central Bureau of Investigation and that complaint was registered on April 19, 1971,
by the Central Bureau of Investigation for offences under Sections 120-B, 420 and 477A of the Indian Penal Code. On June 7, 1971, on the
application of Sri Charanjiv Lall, Deputy Superindent of Police, CBI/SPE/STU, North Block, New Delhi, camping at Madras, praying for the
issue of search warrants u/s 96, Criminal Procedure Code, for searching various places including the office of Andhra Prabha Private Ltd., Express
Estates, Mount Road, Madras, the office of M/s. Express Newspapers Private Ltd., Express Estates, Mount Road, Madras, the office of M/s.
Express Newspapers (Bombay) Private Ltd., at Express Estates, Mount Road, Madras, and the office of the Indian Express (Madurai) Private
Ltd., at the Express Estates, Mount Road, Madras, the Chief Presidency Magistrate of Madras, who is the first respondent in Writ Appeals Nos.
554/71, 69/72 and 70/72, after perusing the application for the issue of the warrants which contained also the list of documents to be seized from
the various premises, and after examining on oath, Sri Charanjiv Lall, issued search warrants as required ; and under those search warrants the
Central Bureau of Investigation simultaneously conducted searches of various premises on June 8, 1971, and June 9, 1971, and seized certain
records handed over by the appellants. Thereupon, the Indian Express (Madurai) Private Ltd., the Express Newspapers Private Ltd. and the
Andhra Prabha Ltd., along with Mr. R. N. Goenka who was connected with those companies in the capacity of managing director, director or
shareholder, filed on June 18, 1971, Writ Petitions Nos. 1916 to 1918 of 1971 for the issue of writs of certiorari to quash the aforesaid search
warrants and subsequently on July 26, 1971, they filed Writ Petitions Nos. 2394 to 2396 of 1971 for the issue of writs of mandamus directing the
Company Law Board to withdraw the complaint which they had laid before the Central Bureau of Investigation on April 2, 1971.
It was contended in these first batch of writ petitions that owing to mala fide, perverse and unreasonable political motives and on extraneous and
irrelevant considerations, this group of newspapers has been discriminated against and singled out for hostile and unequal treatment as compared to
other newspapers and the petitioners were being prosecuted by the Government because of the attitude of the ruling party against the group of the
newspapers owned by the group companies and in this process the Company Law Board, the Central Bureau of Investigation and its officers were
being used as instruments of oppression against the petitioners and there were no grounds at all for searching the premises of the petitioners or for
seizing the documents. The main contention raised in the second batch of writ petitions was that the Companies Act of 1956 is a code the intrinsic
nature of which is that it is exhaustive in regard to matters specifically provided for therein and as such the specific procedure prescribed therein on
receipt of the report u/s 209(4) of the Companies Act has to be followed and the Company Law Board cannot invoke the provisions of the
Criminal Procedure Code and resort to the agency of the police for making an investigation under the provisions of the Criminal Procedure Code,
and prosecuting the offenders for offences committed by the officers of the company in relation to the affairs of the company, even though those
offences would also be offences under the Indian Penal Code, and in laying the information before the police for them to investigate and prosecute,
the Company Law Board had acted illegally or without jurisdiction in the sense that it had done an act which was impliedly prohibited and
consequently the information laid before the Central Bureau of Investigation should be considered as non est and as a result thereof the registering
of that information as a First Information Report by the Special Police Establishment and the subsequent action taken by the police daring the
course of their investigation such as the applying for and obtaining search warrants and searching the premises of the appellants, should be held to
be without jurisdiction. These contentions did not find acceptance at the hands of the learned judge, Ramaprasada Rao J.
Mr. M. K. Nambiar, on behalf of the appellants, has contended before us that the Companies Act being a self-contained Code and a
consolidating and amending Act, prescribing in detail the mode of investigation into and prosecution by the Company Law Board, in respect of any
offences committed in relation to the companies'' affairs, recourse to any investigation or prosecution by the police under the Code of Criminal
Procedure is by necessary intendment prohibited and the Company Law Board being a creature of the statute, it can, as a statutory authority,
exercise only such powers as are vested in it by the Companies Act and when the Companies Act has conferred no powers on the Company Law
Board to prefer a complaint to the police for investigation and prosecution under the Code of Criminal Procedure, any complaint laid by the
Company Law Board with the police for such investigation and prosecution in respect of any offences which appear to have been committed in
relation to the companies'' affairs, would be ultra vires its powers and would be wholly void and consequently the investigation and prosecution by
the Central Bureau of Investigation in pursuance of such a complaint would be illegal, void and wholly without jurisdiction and even if the finding of
Ramaprasada Rao J. that the Company Law Board had the power to make a complaint to the police like any other citizen under the Criminal
Procedure Code is correct, it would follow that the Company Law Board would have the choice of two procedures in respect of persons similarly
situate, one procedure being more advantageous to the persons involved than the other, the act of the Company Law Board in choosing the
procedure which is less advantageous to the persons involved would be violative of Article 14 of the Constitution and further the Central Bureau of
Investigation has no jurisdiction to investigate into the complaint, since Section 3 of the Delhi Special Police Establishment Act is void by reason of
excessive delegation and there is no proof of consent accorded by the Madras Government for the investigation by the Central Bureau of
Investigation as required by entry 8, List I, of the Constitution. It must be stated at this juncture that the last mentioned proposition was not pressed
before Ramaprasada Rao J., as the learned judge himself has observed in his judgment. Hence the appellants in Writ Appeals Nos. 554 and
555/71 have filed C.M.Ps. Nos. 4262 and 4263/72 for permission to raise that ground as an additional ground, in these appeals. But in view of
the fact that this ground was not pressed before the learned judge, we are not permitting the appellants to raise that ground before us and C.M.Ps.
Nos. 4262 and 4263/72 are, therefore, dismissed. The contention that the act of the Company Law Board in laying a complaint to the police is
violative of Article 14 of the Constitution was also not raised before the learned judge ; but C.M.Ps. Nos. 4029 and 4030 of 1972 have been filed
before us, seeking permission to raise that ground as an additional ground of appeal. Mr. Nambiar, the learned counsel for the appellants, has
contended that this ground being a pure question of law can be raised at a late stage, even in appeal and where such a question of law is raised as
an additional ground, it is in the discretion of the High Court either to allow it or not. In support of that contention of his, he has cited the decision
of the Supreme Court in Chitturi Subbanna Vs. Kudapa Subbanna and Others, . There it was held by the Supreme Court:
A pure question of law not dependent on the determination of any question of fact should be allowed to be raised for the first time in the grounds
of appeal by the first appellate court. Such pure questions of law are allowed for the first time at later stages also. Where a new point not taken in
the grounds of appeal is sought to be raised as an additional ground by a substantive application for that purpose, the High Court has discretion to
allow the application or refuse it. But the discretion exercised by the High Court will not be interfered with except for good reasons, for example,
where the court acts capriciously or in disregard of any legal principle.
The Supreme Court has, in that decision, referred to the following observations of Lord Watson in Connecticut Fire Insurance Co. v.
Kavanagh, (1892) A.C. 473 :
'' When a question of law is raised for the first time in a court of last resort upon the construction of a document, or upon facts either admitted or
proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea. The expediency of adopting that
course may be doubted, when the plea cannot be disposed of without deciding nice questions of fact, in considering which the court of ultimate
review is placed in a much less advantageous position than the courts below''.
It has been pointed out by Mr. Nambiar that this additional ground has arisen because of the finding of the learned judge that there are two
procedures allowed by law for the Company Law Board to adopt in the matter of investigation into and prosecution of the offenders in regard to
offences committed by the officers of the company in relation to the affairs of the company and as such in the interests of justice the appellants
should be allowed to raise that additional ground as a pure question of law. In the circumstances, we are inclined to allow this additional ground of
appeal to be urged before us. C.M.Ps. Nos. 4029 and 4030 of 1972 are ordered accordingly.
The learned Additional Solicitor-General appearing on behalf of the Company Law Board has, however, urged before us that Section 5(1) of
the Code of Criminal Procedure is not subject to or controlled by any other law and all offences under the Indian Penal Code have to be
investigated into and tried only under the provisions of the Code of Criminal Procedure and there is also no explicit provision in the Companies Act
that offences under the Indian Penal Code in relation to companies shall be investigated only under the provisions of the Companies Act and there
is also no provision in the Companies Act relating to laying of information to the police and as such the laying of the complaint to the Central
Bureau of Investigation by the Company Law Board was within the competence of the Company Law Board and was in accordance with law. He
has pointed out that there is a vital difference between laying of the information before the police by the Company Law Board, followed by an
investigation under the Criminal Procedure Code and an investigation into the affairs of a company by the Company Law Board under the
provisions of the Companies Act followed by a prosecution u/s 242 of the Companies Act and has argued that the scope of the aforesaid two
procedures are different and, in the circumstances of this case, if thought fit, the Company Law Board was well within its right in laying the
information before the police and the police who have not only a statutory right, but are also statutorily bound, to investigate into the information so
received, have rightly carried on the investigation under the provisions of the Code of Criminal Procedure and the issue of the search warrants by
the learned Chief Presidency Magistrate, on the facts placed before him by means of the application filed by Mr. Charanjiv Lall and by his
statement on oath before the learned Chief Presidency Magistrate, and after applying his mind to those facts and on being satisfied, is in
accordance with law. He has futher argued that there is nothing in the Companies Act to indicate that Section 5(1) of the Code of Criminal
Procedure would be applicable to all offences committed in relation to the affairs of a company, nor is there anything in the Companies Act to
indicate that the Central Government is prevented from laying a First Information Report, if an offence is disclosed on the report of an inspection
made u/s 209(4) of the Companies Act or otherwise and there is no obligation cast on the Company Law Board to follow the procedure starting
with an inspection u/s 209(4) of the Act and ending with the inspector''s report u/s 241 of the Act and that in fact there is no obligation cast on the
Company Law Board to order an investigation u/s 235 of the Act, after an inspection u/s 209(4) of the Act and actually there is no link between an
inspection u/s 209(4) and an investigation u/s 235 and that Section 242 of the Companies Act is merely an enabling provision and it does not
restrict or control either complaints filed by third persons or the power of the police to investigate under the provisions of the Code of Criminal
Procedure. He has further argued that assuming that Section 242 of the Companies Act is exhaustive of the subject with which it deals, the subject
so dealt with is prosecution for criminal offences disclosed in an inspection report of an investigating officer u/s 235 or 237 of the Companies Act
and it does not control or affect or provide for the laying of information before the police in respect of cognizable offences under the Indian Penal
Code disclosed as a result of an inspection u/s 209(b) of the Companies Act or otherwise. He has lastly urged that executive action taken under
valid provisions cannot be violative of Article 14 of the Constitution of India, especially when neither Section 242 of the Companies Act nor the
provisions of the Code of Criminal Procedure are contended to be violative of Article 14 of the Constitution of India.
Undoubtedly, the inherent nature of a Code is that it is exhaustive in regard to the matters specifically provided for in it. The Indian Companies
Act is an Act to consolidate and amend the law relating to companies and certain other associations.
The purpose of a consolidating statute is to present the whole body of the statutory law on a subject in complete form, repealing the former
statutes. "" (Halsbitry''s Laws of England, third edition, volume 36, page 366).
The essence of a code is to be exhaustive on the matters in respect of which it declares the law and it is not the province of a judge to
disregard or go outside the letter of the enactment according to its true construction. The whole scheme of the Companies Act is to ensure proper
conduct of the affairs of companies in public interest, and the preservation of the image of the company in the eyes of the public, and in the interests
of the members of the company and also the creditors to ensure that the affairs of the company are conducted in a proper manner and its
transactions are above suspicion. It is to ensure this that the various provisions under the Companies Act have been devised and returns have been
prescribed for the purpose of enabling a close watch to be kept in regard to the transactions of the company and in regard to the manner in which
its affairs are conducted. Section 209(4) of the Companies Act enjoins the books of account and other books and papers to be kept open to
inspection by any director during business hours and also to be kept open for inspection during business hours,--
(i) by the Registrar, and
(ii) by any officer of Government authorised by the Central Government in this behalf.
u/s 233A, powers have been given to the Central Government to direct special audit of the accounts in certain cases and powers have been
granted under other provisions for the Registrar of Companies to call for information and explanation when he thinks that any such information or
explanation is necessary on perusing any document which a company is required to submit under the provisions of the Act and a duty is cast on all
persons who are officers of the company to furnish such information or explanation to the best of their power to the Registrar and if no information
or explanation is furnished within the time specified or if the information or explanation furnished is, in the opinion of the Registrar, inadequate, the
Registrar may by order in writing call on the company to produce before him for his inspection such books and papers as he considers necessary
within such time as he may specify in the order and a duty is cast on the company and all persons who are officers of the company to produce such
books and papers ; and the refusal or neglect to furnish any such information or explanation or to produce any such books and papers is made an
offence punishable with a fine and power is given to the court trying that offence to make an order on the company for production before the
Registrar of such books and papers as in the opinion of the court may reasonably be required by the Registrar for the purpose as referred to above
on the application of the Registrar and on receiving any writing containing the information or explanation or any book or paper, the Registrar may
annex that writing, book or paper and if such information or explanation is not furnished within the specified time or if on perusing such information
or explanation or the books and papers produced, the Registrar is of opinion that the document referred to above together with such information
or explanation or such books and papers discloses an unsatisfactory state of affairs or does not disclose a full and fair statement of any matter to
which the document purports to relate, the Registrar shall report in writing the circumstances of the case to the Central Government. Sub-section
(7) of Section 234 further confers power on the Registrar to call on the company to furnish in writing any information or explanation on matters
specified in the order, within such time as he may specify therein, if it is represented to the Registrar on materials placed before him by any
contributory or creditor or any other persons interested, that the business of the company is being carried on in fraud of its creditors or of persons
dealing with the company or otherwise for a fraudulent or unlawful purpose.
Then u/s 235 of the Companies Act the Central Government is given the power and discretion to appoint one or more persons as inspectors to
investigate the affairs of any company and to report thereon in such manner as the Central Government may direct,--
(a) in the case of a company having a share capital, on the application either of not less than two hundred members or of members holding not less
than one-tenth of the total voting power therein;
(b) in the case of a company not having a share capital, on the application of not less than one-fifth in number of the persons on the company''s
register of members ;
(c) in the case of any company, on a report by the Registrar under Sub-section (6), or Sub-section (7) read with Sub-section (6), of Section 234,
Then Section 237 of the Act says that, without prejudice to its powers u/s 235, the Central Government--
(a) shall appoint one or more competent persons as Inspectors to investigate the affairs of a company and to report thereon in such manner as the
Central Government may direct, if--
(i) the company, by special resolution ; or
(ii) the court, by order, declares that the affairs of the company ought to be investigated by an inspector appointed by the Central Government; and
(b) may do so if, in the opinion of the Central Government, there are circumstances suggesting--
(i) that the business of the company is being conducted with intent to defraud its creditors, members, or any other persons, or otherwise for a
fraudulent or unlawful purpose, or in a manner oppressive of any of its members, or that the company was formed for any fraudulent or unlawful
purpose ; or
(ii) that persons concerned in the formation of the company or the management of its affairs have in connection therewith been guilty of fraud,
misfeasance or other misconduct towards the company or towards any of its members ; or
(iii) that the members of the company have not been given all the information with respect to its affairs which they might reasonably expect,
including information relating to the calculation of the commission payable to a managing or other director, the managing agent, the secretaries and
treasurers, or the manager, of the company.
Section 239 says:
(1) If an inspector appointed u/s 235 or 237 to investigate the affairs of a company thinks it necessary for the purposes of his investigation to
investigate also the affairs of --
(a) any other body corporate which is, or has at any relevant time been, the company''s subsidiary or holding company, or a subsidiary of its
holding company, or a holding company of its subsidiary;
(b) any other body corporate which is, or has at any relevant time been, managed--
(i) by any person as managing agent or as secretaries and treasurers or as managing director or as manager, who is, or was at the relevant time,
either the managing agent or the secretaries and treasurers or the managing director or the manager of the company; or
(ii) by any person who is, or was at the relevant time, an associate of the managing agent or secretaries and treasurers of the company; or
(iii) by any person of whom the managing agent or secretaries and treasurers of the company is, or was at the relevant time, an associate ;
(c) any other body corporate which is, or has at any relevant time been, managed by the company or whose board of directors comprises of
nominees of the company or is accustomed to act in accordance with the directions or instructions of--
(i) the company ; or
(ii) any of the directors of the company ; or
(iii) any company any of whose directorships is held by the employees or nominees of those having the control and management of the first
mentioned company ; or
(d) any person who is or has at any relevant time been the company''s managing agent or secretaries and treasurers or managing director or
manager or an associate of such managing agent or secretaries and treasurers,
the inspector shall, subject to the provisions of Sub-section (2), have power so to do and shall report on the affairs of the other body corporate or
of the managing agent, secretaries and treasurers, managing director, manager or associate of the managing agent or secretaries and treasurers, so
far as he thinks that the result of his investigation thereof are relevant to the investigation of the affairs of the first mentioned company.
(2) In the case of any body corporate or person referred to in Clause (b)(ii), b(iii), (c) or (d) of Sub-section (1), the inspector shall not exercise his
power of investigating into, and reporting on, its or his affairs without first having obtained the prior approval of the Central Government thereto:
Provided that before according approval under this sub-section, the Central Government shall give the body corporate or person a reasonable
opportunity to show cause why such approval should not be accorded.
Section 240 makes provision for the production of documents and evidence before the inspector so appointed and casts a duty on all officers
and other employees and agents of the company, and where the company is or was managed by a managing agent or secretaries and treasurers,
on all officers and other employees and agents of the managing agent or secretaries and treasurers, and where the affairs of any other body
corporate or of a managing agent or secretaries and treasurers, or of an associate of a managing agent or secretaries and treasurers, are
investigated by virtue of Section 239, on all officers and other employees and agents of such body corporate, managing agent, secretaries and
treasurers, or associate, and where such managing agent, secretaries and treasurers or associate is or was a firm, on all the partners in the firm, to
preserve and to produce to an inspector or any person authorised by him in this behalf with the previous approval of the Central Government, all
books and papers of, or relating to, the company or, as the case may be, of or relating to the other body corporate, managing agent, secretaries
and treasurers or associate, which are in their custody or power and otherwise to give to the inspector all assistance in connection with the
investigation which they are reasonably able to give, That section gives power to the inspector to examine on oath any of the persons referred to
above and any other person with the previous approval of the Central Government in relation to the affairs of the company, etc. Power is
conferred also by means of Section 240A for the seizure of documents by the inspector. Then, u/s 241, provision is made for making a report by
the inspector on the conclusion of the investigation made u/s 239. These provisions have been devised to enable the Central Government to keep a
close watch over the affairs of the companies in the interests of the members of the company, the creditors, etc. Section 242 provides for the
prosecution of any person who has, in relation to the company or in relation to any other body corporate, managing agent, secretaries and
treasurers, or associate of a managing agent or secretaries and treasurers whose affairs have been investigated by virtue of Section 239, been guilty
of any offence for which he is criminally liable. The section says that on a consideration of the report made u/s 241, the Central Government may,
after taking such legal advice as it thinks fit, prosecute such person for the offence; and it shall be the duty of all officers and other employees and
agents of the company, body corporate, etc., to give the Central Government all assistance in connection with the prosecution which they are
reasonably able to give.
It is contended by Mr. Nambiar on behalf of the appellants that by reason of the incorporation of the above provisions, recourse to the laying
of information before the police for their investigating under the provisions of the Code of Criminal Procedure into offences under the Indian Penal
Code appearing to have been committed in relation to the affairs of the company is impliedly barred and the Company Law Board is bound to
carry on investigation under the aforesaid provisions of the Companies Act and, eventually, u/s 242, prosecute the person against whom offences
have been disclosed as a result of such inspection or investigation by an inspector made under the provisions referred to above. But, then, it should
be noted that even assuming that Section 242 of the Companies Act is exhaustive of the subject with which it deals, that is, prosecution for criminal
offences disclosed on a report of an investigation made u/s 235 or 237, there is no provision in regard to the laying of information before the police
for the police to investigate under the provisions of the Code of Criminal Procedure where cognizable offences under the Indian Penal Code are
disclosed on an inspection u/s 209(4) of the Companies Act and as such in our view Section 242 of the Act does not control or affect the laying of
information before the police in respect of cognizable offences under the Indian Penal Code disclosed as a result of an inspection u/s 209(4) of the
Act or otherwise. Section 242 is the culmination of an investigation started u/s 235 or 237 of the Act. Where no such investigation has been started
u/s 235 or 237, there is no question of Section 242 coming into operation. Now, in the case before us, no investigation u/s 237 had been started.
It was only as a result of a report of an inspection made u/s 209(4) by Mr. Puri that the Central Government laid the information before the police
for investigation under the provisions of the Code of Criminal Procedure in regard to the cognizable offences under the Indian Penal Code which
there were grounds to believe had been committed in relation to the affairs of the company. It may be noted that there is no provision for a report
to be sent on an inspection of the books of account, etc., of the company made u/s 209(4). The report made by Mr. Puri after his inspection of the
accounts, etc., u/s 209(4) is, therefore, only an administrative report to apprise the Central Government of the state of affairs of the company. Mr.
Puri, no doubt, recommended investigation u/s 237 ; but the Central Government thought it fit and expedient to lay information before the police so
that the police may investigate under the provisions of the Code of Criminal Procedure inasmuch as cognizable offences under the Indian Penal
Code were disclosed, presumably because such an investigation by the police under the provisions of the Code of Criminal Procedure would be
more effective. We can see nothing in the provisions of the Companies Act which would even by implication bar a recourse to the laying of the
information before the police for the purpose of investigation and action under the Code of Criminal Procedure when there are reasonable grounds
for believing that cognizable offences under the Indian Penal Code had been committed in relation to the affairs of the company. It cannot be said
that the Companies Act is exhaustive even in the matter of investigation into cognizable offences under the Indian Penal Code committed in relation
to the affairs of a company. In fact, the Act does not touch that aspect at all.
Nevertheless, Mr. Nambiar contends that what the statute does not expressly or impliedly authorise is to be taken to be prohibited. No doubt,
statutory corporations have such rights and can do such acts only as are authorised directly or indirectly by the statutes creating them"", while
non-statutory corporations, speaking generally, can do everything that an ordinary individual can do unless restricted directly or indirectly by statute
.
The powers of a corporation created by statute are limited and circumscribed by the statutes which regulate it, and extend no further than is
expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of its incorporation, or may be fairly regarded
as incidental to, or consequential upon, those things which the legislature has authorised. What the statute does not expressly or impliedly authorise
is to be taken to be prohibited."" (Vide Halsbury''s Laws of England, third edition, volume 9, pages 59, 62 and 63).
But, then, we are of the opinion that the laying of information before the police by the Company Law Board on a perusal of the inspection
report u/s 209(4) of the Companies Act is necessarily and properly required for carrying into effect the purpose of the information of the Board
and may be fairly regarded as incidental to or consequential upon those things which the legislature has authorised. We do not think that the laying
of information before the police in this case contravenes the principles in Taylor v. Taylor, [1876] 1 Ch. D. 426 that where power is given to do a
thing in a certain way the thing must be done in that way or not at all and that the other methods of performance are necessarily forbidden. It has
been recognised in Rohtas Industries Vs. S.D. Agarwal and Others, that the power conferred on the Central Government u/s 235 as well as u/s
237(b) is a discretionary power. Consequently, it is left to the Central Government to refrain from ordering an investigation into the affairs of a
company u/s 237(b). Only if it chooses to order an investigation u/s 237(b) then that investigation would culminate in action being taken u/s 242.
There is nothing in the Companies Act which would either expressly or impliedly prohibit the Central Government from laying information to the
police in lieu of ordering an investigation u/s 237(b). Mr. Nambiar admitted that there is no express prohibition regarding investigation by police;
but he contended that according to the principles of interpretation of statues there is an implied prohibition. We are unable to see any such implied
prohibition on an interpretation of the relevant provisions of the Companies Act.
In M. Vaidyanathan Vs. The Sub-Divisional Magistrate, Erode and Others, a similar argument appears to have been advanced while
challenging the act of the Registrar of Companies in making a complaint to the police against the officers of the company without availing himself of
the powers vested in him by Section 234 and other relevant provisions of the Act. It was observed in that decision that:
Section 242(1) of the Companies Act is only an enabling provision as the use of the word ''may'' in the passage '' the Central Government may,
after taking such legal advice as it thinks fit, prosecute such a person for the offence '' indicates. By itself Section 242(1) does not divest a police
officer of the jurisdiction conferred upon him either u/s 154, 156 or 157, Criminal Procedure Code. No more than Section 630 of the Act, does
Section 242 bar the exercise of the jurisdiction of the police to investigate into a complaint of the commission of cognizable offences punishable
under Sections 406 and 409, Indian Penal Code.
Another argument advanced, by the learned counsel for the appellants is that the source of the power of the police to investigate is the statute
itself, namely, the Criminal Procedure Code, but the statute itself may limit that power, as for example Section 195, and equally so another statute
may limit that power. We are, however, unable to accept this argument, for, in our view, there is nothing in the Companies Act which limits the
power of the police to investigate under the Criminal Procedure Code.
In B. M. Bajoria v. Union of India, [1972] 42 Comp. Cas. 338 it was held that:
There is nothing in Section 237 of the Companies Act, 1956, which makes it imperative for the Government to order investigation into the affairs
of the company when the Government does not consider the necessity of further probe and is already in possession of facts which in its opinion
show the commission of an offence by an officer of the company or other person in respect of the assets of the company. There is, in such an
event, no legal bar to the officer of the Company Law Board or other Government officer concerned making a report to the police.........
There is nothing in Section 242 or the other provisions of the Companies Act, 1956, to point to the conclusion that no prosecution can be launched
or no report can be made to the police in respect of an alleged act of embezzlement or malfeasance by an individual connected with a company
without recourse to an investigation u/s 235 or Section 237.
We are in respectful agreement with these observations.
It must also be noted that u/s 237(b) of the Companies Act it is not mandatory on the part of the Central Government to order an investigation
into the affairs of a company and to call for a report thereon even if, in the opinion of the Central Government, the circumstances mentioned under
Sub-section (b) of Section 237 exist. The section says that the Central Government may appoint one or more competent persons to investigate the
affairs of a company and to report thereon if, in the opinion of the Central Government, there are circumstances suggesting fraud, misconduct, etc.,
in the affairs of the company. No obligation is, therefore, cast on the Central Government to follow the procedure starting with an investigation u/s
237 and culminating in a prosecution under the provisions of Section 242 and there is no provision which would prevent the Central Government
from laying the information before the police if a cognizable offence under the Indian Penal Code is disclosed on an inspection made u/s 209(4) or
otherwise.
The provisions of the Companies Act do not exclude any of the provisions of the Criminal Procedure Code in respect of laying of information
before the police in regard to any investigation by the police into cognizable offences under the Indian Penal Code where such cognizable offences
were committed in relation to the affairs of a company. In the absence of clear and unambiguous language, intention to alter the existing law should
not be imputed to the legislature (vide Craies on Statute Law, fifth edition, at pages 114 and 115). The law does not favour repeal of statute by
implication and, therefore, a later statute should not be construed as repealing an earlier one without express words or by necessary implication,
(Vide Maxwell on the Interpretation of Statutes, tenth edition, page 170 and Craies on Statute Law, fifth edition, page 337).
Unless two statutes are so plainly repugnant to each other, that effect cannot be given to both at the same time, a repeal will not be implied,...
(Vide Kutner v. Phillips, [1891] 2 Q.B. 267,.
There are no provisions in the Companies Act and in the Criminal Procedure Code which can be said to be so plainly repugnant to each other
that effect cannot be given to both at the same time. In our view, there is no provision in the Companies Act which would by necessary implication
exclude the provisions of the Criminal Procedure Code relating to laying of information to the police in regard to an investigation by the police into
cognizable offences under the Indian Penal Code committed in relation to the affairs of a company.
In Dalmia Jain Airways Ltd. v. Union of India, ILR 10 Punj. 511 it was held :
Investigation u/s 137 of the Indian Companies Act, 1913, is very different in scope from the investigation under the Code of Criminal Procedure
and it is difficult to hold that by enactment of Sections 137 to 141A, the legislature intended to abrogate the provisions contained in Chapter XIV
of the Criminal Procedure Code when offences have been committed in relation to the companies. It is not possible to say that the provisions of the
Criminal Procedure Code cannot stand together with the provisions relating to investigation in the Companies Act and the proceedings under the
Companies Act do not necessarily conflict with those under the Criminal Procedure Code. The proceedings started u/s 137 onwards are not
exclusively or primarily criminal. The investigation under these provisions is only into the affairs of the company which may disclose several liabilities
of the officers of the company or may disclose commission of criminal offences.
In Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, it has been observed by the Supreme Court that :
The rule of construction is that where a statute provides in express terms that its enactment will repeal an earlier Act by reason of its inconsistency
with such earlier Act, the latter may be treated as repealed. Even where the later Act does not contain such express words, if the co-existence of
the two sets of provisions is destructive of the object with which the later Act was passed, the court would treat the earlier provision as impliedly
repealed.........But repeal by implication is not generally favoured by courts.
u/s 5(1) of the Code of Criminal Procedure, all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise
dealt with according to the provisions of the Criminal Procedure Code. Section 5(2) states that all offences under any other law shall be
investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force
regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Therefore, if, in relation to the affairs of
a company, offences under the Indian Penal Code are disclosed, they shall be investigated, inquired into, tried and otherwise dealt with according
to the provisions of the Criminal Procedure Code while offences under the Companies Act disclosed in relation to the affairs of a company could
be investigated, inquired into, tried and otherwise dealt with according to the Criminal Procedure Code, but subject to the provisions in the
Companies Act regulating the laying or place of investigating, inquiring into, trying or otherwise dealing with such offences.
In AIR 1945 18 (Privy Council) the Privy Council has observed:
Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not
guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters
which are within their province and into which the law imposes upon them the duty of enquiry. In India. . . . there is a statutory right on the part of
the police, under Sections 154 and 156, to investigate the circumstances of an alleged cognizable crime without requiring any authority from the
judicial authorities, and it would .... be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the-
inherent jurisdiction of the court.........
Even assuming that the Company Law Board acted outside its powers when it laid information before the police to investigate and if necessary
prosecute the persons involved in the commission of cognizable offences under the Indian Penal Code in relation to the affairs of the company, that
would not in any way detract from the power of the police to act on that information and commence investigation and carry it through to its logical
conclusion. The Criminal Procedure Code is not concerned with the personality of the person who lays the first information report; and it is only
concerned with the quality of the information. In M. Vaidyanathan v. Sub-Divisional Magistrate, Erode, it was held that even if there was any
irregularity or any illegality attendant on the letter of the Registrar of Companies which laid the information before the police and which was treated
as a complaint by the police for the purpose of investigation, neither the jurisdiction to investigate nor the exercise thereof by the police officer
could be affected.
Any person can lay information before the police and if such information could be believed to be authentic and discloses cognizable offences,
the police are bound to investigate into the same. Any individual can set the law in motion by laying information before the police or by preferring a
complaint to the court. In the present case before us, the information laid before the police was signed by the Under-Secretary to the Government
of India and on receipt of the information the police have registered the case and took up investigation into the case as they are empowered to do.
When any individual can lay information before the police in respect of the commission of cognizable offences for the police to investigate, we are
not able to see how any disability could attach to the information laid in this case, merely because under the provisions of the Companies Act no
power is conferred on the Company Law Board or the Central Government to lay such information before the police.
Mr. Nambiar has argued that, assuming that two courses were open to the Central Government or the Company Law Board,
(1) to order an investigation into the affairs of the company under the provisions of Section 237, or
(2) lay information before the police,
the action of the Central Government or the Company Law Board in choosing the latter course is violative of Article 14 of the Constitution of
India. This ground was not urged be/ore Ramaprasada Rao J., but we have permitted this additional ground to be raised before us, even though in
our opinion this ground is untenable as we shall later show. Mr. Nambiar, while enlarging on the aforesaid argument of his, has pointed out that the
procedure of ordering an investigation into the affairs of a company u/s 237 of the Companies Act and then proceeding u/s 242 of the Act is a
procedure more advantageous to the persons involved than the procedure of laying information before the police and thereby entrusting the
investigation and further action thereon to the police and as such the choosing of the latter procedure is discriminatory. Mr. Nambiar has pointed
out that as between the aforesaid two procedures there are six vital differences :
(1) Under the provisions of the Companies Act, only competent persons would be ordered to investigate into the matter whereas under the
Criminal Procedure Code any police officer could investigate into the same;
(2) Under the provisions of the Companies Act even the order of the Government directing investigation u/s 237 is subject to judicial review as has
been held in Rohtas Industries Vs. S.D. Agarwal and Others, whereas the laying of information before the police is not an act that is subject to
judicial review ;
(3) When an investigation is conducted under the provisions of the Companies Act, under the orders of the Government, a report of the
investigation has to be given to the party, but there is no provision under the Criminal Procedure Code for the accused to be given a copy of any
report of the investigation ;
(4) The Company Law Board, which consists of experts, reviews such a report made after an investigation into the affairs of a company and that
itself is a guarantee that the matter would be properly considered before a prosecution is launched against the persons involved ;
(5) The Company Law Board is bound to take legal advice after the report is submitted ; and
(6) The Company Law Board being a wing of the Central Government is the highest authority in the land and, as such, if it prosecutes under the
provisions of Section 242, such a prosecution would be on adequate grounds and for proper reasons.
But then, in our opinion, the provisions of the Criminal Procedure Code provide ample safeguards for a fair investigation to be carried on.
Though the Company Law Board may consist of experts in regard to company matters, so far as investigations into offences under the Indian
Penal Code are concerned, we are unable to see how police officers could not be equated to the position, though not of experts, at least of
persons well experienced in the matter of investigation into offences. Further, the provision u/s 242 of the Companies Act enabling the Central
Government to take legal advice is only an enabling provision and it gives a discretion to the Central Government to take legal advice or not before
prosecuting offenders. There is no duty cast on the Central Government to take legal advice after reviewing the report of investigation before
prosecuting the offenders. In the case of an investigation by the police after the police sends the final report and the court takes cognizance of the
offences disclosed in the final report, copies of all the statements recorded during the investigation as also documents on which the prosecution
proposed to rely have to be furnished to the accused persons before the commencement of the enquiry or trial. We do not agree that the
procedure laid down under the Companies Act is more advantageous to the persons involved than the procedure laid down by the Criminal
Procedure Code. In our view, the scope of the two procedures is entirely different and would apply to different sets of circumstances and cannot
even be construed as parallel to each other. Therefore, we are of the view that the act of the Central Government or the Company Law Board in
laying the information to the police is not violative of Article 14 of the Constitution.
The net result is that we find that there are no grounds at all to issue a writ in the nature of mandamus or any suitable direction directing the
department of company affairs to withdraw the complaint lodged by it with the Central Bureau of Investigation or to refrain from prosecuting such
investigation or taking further action in respect of the information so laid. Consequently, Writ Appeals Nos. 555/71, 71/72 and 72/72 are
dismissed with costs.
In the other batch of writ appeals, we have to straightaway state that there is no lack of bona fides on the part of the Central Government or
the police in setting the process of investigation into motion. The argument that the warrants issued by the first respondent, the learned Chief
Presidency Magistrate, were not in accordance with law cannot be accepted. The first respondent had examined Mr. Charanjiv Lall on oath and
only after being satisfied that the documents called for were necessary for the purpose of investigation and would not, as asserted by Mr. Charanjiv
Lall, be produced by the company if called upon so to do, the learned Chief Presidency Magistrate issued the search warrant after applying his
judicial mind to the question. The learned Magistrate was not bound to record his reasons in writing. All that Section 96 of the Criminal Procedure
Code requires is that the Magistrate must have reason to believe that such is the state of affairs or, in other words, the Magistrate must be satisfied
that there is necessity for the search warrant to be issued, as otherwise the thing would not be produced. The Criminal Procedure Code gives
power to a police officer to request for the issue of a search warrant if he has reasonable grounds for believing that such search was required for
the purposes of investigation into the offence which he is authorised to investigate ; and Mr. Charanjiv Lall who applied for the search warrant
appraised the learned Chief Presidency Magistrate of the necessary materials on the basis of which a search warrant was required and the
Magistrate was satisfied as to the necessity for such a warrant and then issued it. That being so, the act of the Magistrate in so issuing the search
warrant would not be open to judicial review under Article 226 of the Constitution. Further, as pointed out by the learned judge Ramaprasada Rao
J., the search warrants have already been executed. It would be futile now to issue a writ quashing the issuance of the warrant. Therefore, we see
no grounds at all to issue a writ of certiorari to quash the search warrants dated June 7, 1971. Consequently, Writ Appeals Nos. 554/71, 69/72
and 70/72 are dismissed with costs. Counsel''s fee Rs. 500 in the first of the appeals. No fee in the others.