Provision overlooked

THE CONSUMER Protection Act, 1986 (Act 68 of 1986) (for short, ``the Act) is an innovation in the Indian context for the better protection of the consumers. The Act is a modern legislation containing substantive, procedural and limitation aspects. In pith and substance, the Act is a complete code in itself. It also contains machinery provisions for the execution of the orders passed by the various fora constituted under the Act. The enforcement provision, contained in Section 27, is the heart, soul and life of the Act.

The laudable objective of the enactment of the Act was to provide cheap and quick justice without any delay whatever to the affected consuming public in the fora constituted therein. Decrees or orders obtained after a decade or two in other courts have to be executed in the manner contemplated by law under the relevant provisions of the procedural code. The fruits of such decrees or orders to be realised by resorting to execution proceedings also takes decades and decades, and by the time such orders or decrees are realised by way of execution, what comes to the litigant public is a Pyrrhic victory and nothing more. In order to make sure that that sort of a thing should not happen in the case of the execution of the orders of the various fora created under the Act, statutory provisions in the shape of Section 27 were incorporated.

The constitutional validity of Section 27 had been challenged in the writ jurisdiction of the Karnataka High Court in the case of Parmjit Singh vs Union of India by its Secretary of Law and Parliamentary Affairs, New Delhi & Ors (1999 CTJ (Karnataka High Court) (CP) 570). Chief Justice R. P. Sethi, as he then was, speaking for the Bench, had struck down the proviso to Section 27 as null and void despite upholding the validity of the main provision of the said Section as being violative of Article 20(1) and Article 21 of the Constitution.

Mr. Sethi, placing reliance on Section 4 of the Code of Criminal Procedure (the Code) said that Section 27 of the Act, though created an offence, did not at all specify the procedure relatable to the trial of the offence so created and the various fora constituted under the Act were compelled to lay an appropriate complaint before the competent criminal court which alone could try and punish the offender committing such an offence in accordance with the procedure contemplated under the code.

This sort of an interpretation is likely to protract the proceedings endlessly. This apart, such a conclusion is nothing but the result of overlooking certain relevant provisions of the code as well as misappreciation of the specific provisions as relatable to the power of the various fora constituted under the Act as ingrained in Section 27. In other words, the Chief Justice took into consideration Section 4 of the code alone and omitted altogether to take into consideration the inter-play of the other relevant provisions of the code such as Sections 5 and 26, besides the specific provisions available in Section 27 of the Act itself specifying the powers of the fora constituted under the Act and the procedure to be followed to punish the offenders for non-compliance of their orders.

Section 4 of the code provides for a procedure to be followed in every investigation, inquiry or trial in respect of the offences under IPC as well as under any other law. In the former, the procedure as laid down in that code has to be followed, but in the latter, this is subject to any enactment in force which regulates the procedure in such cases. In other words, the procedure in the cases is the same except to the extent that the special enactment regulates the manner or place of investigation or inquiring into, trying or otherwise to deal with such offences.

The saving provisions under Section 5 of the code lay down that ordinarily the code will not affect:

(a) any special law;

(b) any local law;

(c) any special jurisdiction or power; and

(d) any special form of procedure

But the existence of any specific contrary provision, either in the code itself or in the special or local laws, will have a contrary effect. In other respects, the code shall be applicable.

The Act can be stated, without any fear of controversy, as a special law falling within Section 41 of the IPC. The Act as already indicated, did, in fact, specify an offence for the violation of an order passed by various fora constituted under the Act under Section 27 thereof. The crux of the offence contemplated therein, so to say, is the violation of the order and nothing further. Once there is a violation, the offence is complete and what remains to be done is the imposition of the punishment for the violation of the order so made by the person concerned. The power to punish an offender for the violation of the order is ingrained in favour of the forum which passed the order. That is made abundantly clear by Section 27 itself. Such power cannot be sought to be delegated or warranted to be exercised by any forum other than the one as contemplated thereto. This apart, the district fora, the State Commissions and the National Commission can directly take cognisance of the offence created by Section 27 of the Act pursuant to the specific provisions adumberated under Section26(1)(b) of the Code coupled with Section 27 of the Act.

These aspects of the matter had not at all been taken into account by the Chief Justice who passed the order in the decision mentioned supra. If these aspects of the matter had been taken into account, the Chief Justice would not have said that a complaint had to be laid before the competent magistrate for trial. It must be stated here that a specific procedure has been prescribed therein for the trial of the offence stated to have been committed by the offender for the violation of the order passed by the respective fora.

Before any person is punished for any offence stated to have been committed by him, the principles of natural justice adumberated in audi alteram partem rule must have to be complied with. That is to say, an offender before ever is punished for the offence stated to have been committed by him, must be given an opportunity of being heard. Even assuming that this sort of a procedure is not provided in the Act, it goes without saying that such a procedure is implicit and the same has to be strictly adhered to before ever the sentence is passed upon the offender who is stated to have committed the offence especially in view of the fact that the observance of audi alteram partem rule in any criminal offence had been construed by superior courts of jurisdiction as a ``must'' as if such a right of hearing is more or less elevated to the level of the fundamental rights of the citizen. Mr. Sethi, who passed the order in the decision, of course, laments that no procedure had been indicated in the Act itself for the trial of the offence. It cannot at all be said that the proviso appended to Section 27 of the Act is violative of Articles 20 & 21.

Section 27 and the proviso appended thereto must be construed as a whole and the main section and the proviso cannot be split for ascribing meaning to be given to them. The Chief Justice committed an error in splitting the section into two parts to be construed as if the main section creates the offence in the violation of the order passed by the offender without conferring any power on the fora for the imposition of punishment to the offender who violated the order passed by the fora. The main section is framed in the passive voice while the proviso is indicated in the active voice. But neither can change the purport, import and intention of the Section. The proviso appended thereto gives the power to the respective fora to either reduce the sentence of imprisonment or fine or both if it is satisfied that the circumstances warrant such a reduction. Without the proviso the section would read as if there is no power for the fora to impose a sentence less than the minimum sentence of imprisonment or fine.

Section 26 of the code clearly mentions that if the power had been given by the special enactment to the court created by the special enactment, such a power can be exercised by such court alone and there is no possibility at all for such a power to be exercised by the court specified in column 6 of the First Schedule appended to the code, depending upon the punishment provided for the offence stated to have been committed by the offender under other laws. This aspect of the matter had been overlooked as also the other provisions of the code as have been related earlier, particularly Section 5, which led the Chief Justice to come to an erroneous conclusion in deciding the case.

Section 27 is a remedy in criminal law. Non-compliance of the order within the time limited therein for whatever reason is an offence and punishment is provided for it. Maximum and minimum punishment of sentence of imprisonment or fine or both had been provided. If the imposition of sentence of imprisonment or fine amount is required to be less than the minimum prescribed therein, the solidified satisfaction of the fora has to be derived from the mitigating or extenuating circumstances brought on record by the offending trader. Thus, it is clear that the offending trader cannot escape punishment if he complies with the order belatedly. Only an honest trader complying with the order within the time limit can escape punishment. Such being the case, the order of the fora constituted under the Act gets enforced without any difficulty whatever.

Justice M. S. JANARTHANAM

President, Tamil Nadu Disputes

Redressal Commission

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