Delhi High Court has reserved order in Malvinder Singh’s plea challenging Delhi Police (EOW)’s jurisdiction in filing FIR and probing the alleged offences when Serious Fraud Investigation Office (SFIO) was already seized of the investigation.

The writ petition, averred before Justice Brijesh Sethi, seeks to quash the FIR registered by the EOW.

Counsel for Malvinder, Abhishek Manu Singhvi, yesterday submitted that the special statutory body – SFIO – instituted for trying cases of this very kind shall supercede EOW which is just a branch of Delhi Police.

Abhishek Manu Singhvi put forward the following submissions:

1. No prima facie issue raised by the state as to maintainability of the present FIR.
2. CBI and ED often investigate the same case but is it a comparable example as to the matter at hand.
3. SFIO has been given statutory recognition; so if a person is charged under the sections of Companies Act and unless the section specifically excludes SFIO from prosecuting a case, the case shall be tried by SFIO.

Avninder (Avi) Singh, the standing counsel for state (EOW) relied on a judgment of Supreme Court which directs the SFIO to investigate an offence under the SFIO Act, however if there are incidental offences under IPC, SFIO may try them as well. Counsel pointed out that in the case at hand, the primary offences are under IPC (section 409 and 420) and incidental offences are under SFIO act, thus the petitioner cannot claim to be tried under SFIO and not EOW.

Maninder Acharya, learned ASG appearing for SFIO stated the procedure followed by the SFIO in investigating a case. The investigation is done under Companies Act and upon investigation if an offence comes under IPC, the SFIO does not investigate that offence but merely mentions it in its report that is submitted to the court.

The petition, filed through Advocate Ridhima Mandhar, stated that once appointed, SFIO enjoys primary and exclusive jurisdiction to investigate into the affairs of the company and recommend prosecution for offences under the Companies Act 2013 as well as under other statutes. Section 436(2) of the Companies Act, empowers the Special Court to try connected offences even under other statutes in the same trial. This makes the legislative intent abundantly clear – preventing multiplicity of trials.

It further listed some important questions of law for the Court’s consideration:

1. Whether SFIO is empowered to investigate violations under other statutes and thus enjoys primacy over other investigating agencies?
2. Whether SFIO’s power to include charges from other statutes is manifest from Section 436(2)?
3. Whether the objective of the Act is to prevent multiplicity of trials? And if so, then simultaneous investigation by EOW frustrates that objective.
4. Whether two separate FIRs in the same matter can subsist or the duplication is an abuse of the process of law?
5. Whether SFIO’s report must proceed first, before reports of other investigating agencies?
6. Whether 212(17) (a) of the Companies Act mandates other agencies to provide to the SFIO all such information or documents in connection with an investigation?
7. Whether prosecution of offence of corporate fraud has an overriding effect on the like provisions of the IPC?
8. Whether EOW is precluded by the bar contained in Section 212(2) of Companies Act.
9. Whether Section 26 of General Clauses Act mandates singular prosecution thus granting sole prosecution right to SFIO?

–India Legal Bureau

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