K. Gauba, J. 1 .

The Competition Commission of India (the Commission, for short), a statutory body established by the Central Government in exercise of its power under Section 7 of the Competition Act, 2002 (the Competition Act, for short), the respondent herein, has instituted, through its authorized representative, criminal complaints against the petitioners on which the Chief Metropolitan Magistrate (CMM) Delhi has taken cognizance of the offences allegedly committed under Section 42(3) of the Competition Act and issued process.

These petitions preferred under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C., for short) bring a challenge to the said summoning orders.

Since the question of law, in almost similar factual matrix, raised in these petitions is identical, they have been heard together and are being disposed of by this common order.

THE FACTS It will be appropriate to look at the background facts, to the extent necessary, in the three cases at the outset.

M.C. 4363/2018 3 .

The petitioner M section Rajasthan Cylinders and Containers Limited (RCCL) is a company based in Jaipur, engaged in manufacture of LPG cylinders.

In 2014, it had entered into a contract with another company (HPCL) procuring certain supplies through two tenders which were perceived by the Commission to be anti- competitive.

The Commission initiated suo-motu proceedings under Section 19(1) of the Competition Act against RCCL, directing by order dated 02.02.2014 the Director General of the Commission to cause an investigation.

The Director General issued summons dated 24.06.2016 followed by another on 13.07.2016 to RCCL, which were not complied with.

On the report of Director General regarding non-compliance with the said processes, the Commission through Secretary issued show cause notices on 22.09.2016 and 02.12.2016.

There being no response to such notices, the Commission imposed penalty of Rs. 5,00,000/- by order dated 09.02.2017 under Section 43 of the Competition Act.

The RCCL sent a reply on 28.04.2017, the Commission issuing a notice of demand on 21.07.2017 requiring penalty amount to be deposited within thirty days.

On 19.04.2018, the Commission by its order decided to initiate criminal complaint under Section 42(3) of the Competition Act, the complaint (CC Number 11151/2018) being submitted in its wake.

The CMM issued the process by the impugned order on 30.05.2018.

The petitioner deposited the penalty on 13.08.2018 and 20.08.2018.

M.C. 5324/2018 A company named Cinemax India Limited (the informant) is engaged in business of exhibition of films at its cinema halls in Kerala.

On 21.09.2012, the said company gave information under Section 19(1) (a) of the Competition Act to the Commission alleging contravention of Sections 3 and 4 of the Competition Act by Films Distributors Association (FDA) of Kerala in which the petitioner was then the honourary General Secretary.

The Commission acting on the said complaint (case Number 32/2013), by its order dated 17.05.2013, after forming an opinion under Section 26(1), directed the Director General for carrying out an investigation.

The Director General sent a notice on 13.06.2013 to the petitioner calling him upon to furnish certain information documents, this being followed by another notice on 17.06.2013 which was eventually served through the District Collector on 13.09.2013, there being no response or compliance.

The Director General made a report to the Commission on 16.01.2014 seeking imposition of penalty under Section 43 of the Competition Act.

In the wake of decision of the Commission rendered on 28.01.2014, show cause notices were sent on 12.02.2014, inter alia, to the petitioner, he having failed to send any reply, the notice addressed to him having returned undelivered.

It may be mentioned here that it is his case that he had ceased to be an office bearer of FDA, his term having ended on 30.10.2013.

It also must be noted that even as per the averments of the Commission (in the criminal complaint) the FDA had sent a reply on 01.03.2014 informing that newly elected committee had taken charge on 01.11.2013.

Be that as it may, the Commission, by its decision dated 26.03.2014, directed fresh notice to be sent to the petitioner, also calling upon the Director General to confirm whether FDA had complied with the notices.

On 07.06.2014, the petitioner sent a letter to the Commission, received by it on 09.06.2014, stating that he had not received the earlier notices of June, 2013, reiterating that his tenure having ended, he was not aware regarding compliance by FDA.

The Director General submitted a report to the Commission pointing out default in compliance or submission of reply by FDA in response to notices of June, 2013 attributing full knowledge to the petitioner, recommending action under Section 43 of the Competition Act.

Show cause notices were issued under directions of the Commission on 12.02.2014 to FDA and to the petitioner (in his capacity as General Secretary of FDA) respecting proposed action under Section 43 of the Competition Act.

The Commission rejected the contention of FDA about newly elected office bearers (who had taken over w.e.f. 31.10.2013) not being aware of the directions of the Director General and forming an opinion that no reasonable cause had been shown by FDA or the petitioner for non-compliance, imposed by order dated 11.12.2014 penalty on FDA in the sum of Rs. 14,60,000/- at Rs. 10,000/- per day for the period of non-compliance, i.e., 13.09.2013 to 06.02.2014, also taking note of similar non-compliance by FDA in another matter (case Number 62/2012) it showing the said entity to be one indulging in habitual non-cooperation .

Further, by the same order, the Commission also imposed penalty of Rs. 4,80,000/- against the petitioner, inter alia, observing that his reply dated 07.06.2014 demonstrated that he was fully aware of the notice which had been affixed outside his office on 13.09.2013 and yet had failed to comply or adduce any evidence to show that non-compliance was without his knowledge or despite due diligence on his part.

The copy of order dated 11.12.2014 was statedly served on the petitioner on 20.12.2014.

He failed to deposit the penalty within stipulated period of sixty days.

A demand notice was issued by the Commission on 26.03.2015, it statedly having been served on 10.04.2015.

Since no deposit was made, a recovery certificate was issued by the Commission on 22.05.2015.

The penalty not having been deposited, the Commission, by its order dated 16.03.2016, decided to initiate criminal action under Section 42(3) of the Competition Act, the criminal complaint (No. 48345/2016) being instituted on 22.08.2016 before the CMM.

It is the petitioners case that he had sent replies to the Commission, inter alia, informing cessation of his responsibility qua the office of Hony.

Secretary to FDA w.e.f. 30.10.2013, new office bearers having taken over.

He also refers to appeal (No. 55/2015) having been preferred by him against similar order (dated 31.10.2014) passed in the other case (No. 62/2012) before Competition Appellate Tribunal (the appellate tribunal, for short), the said appeal having been dismissed on 17.08.2015, the SLP moved before the Supreme Court also having been declined.

M.C. 5379/2018 9 .

The petitioner in this case is same as in the previous matter, he being held responsible on account of the position of Hony.

Secretary held by him in FDA against similar backdrop.

On the information received on 21.09.2012, as earlier stated, the Commission by its order dated 18.10.2012, under Section 26(1), had directed the Director General to conduct investigation, this being subject matter of a separate case (No. 62/2012).

Notices sent by the Director General, inter alia, to the petitioner and FDA, on 19.11.2012, 01.01.2013, 18.02.2013, 20.03.2013 and 12.06.2013 did not yield any response.

The Director General got the notice dated 12.06.2013 served through the District Collector, by communication dated 10.07.2013, the service having been effected on the petitioner by affixation, there being no response.

Eventually, on the report of the Director General, the Commission by its decision in the meeting of 28.01.2014 initiated action for imposition of penalty under Section 43 of the Competition Act.

Show cause notices were issued in the wake of such decision, a reply being filed by FDA.

On 09.06.2014 the Commission received letter dated 07.06.2014 of the petitioner.

His contentions on same lines, as noted in the context of previous case, were rejected, the process eventually leading to imposition of penalty by the Commission by its order dated 31.10.2014, in the sum of Rs. 35,20,000/- against FDA and Rs. 19,25,000/- against the petitioner at Rs. 25,000/- per day for the period of default, i.e., 14.08.2013 to 30.10.2013.

The copy of the order imposing penalty was statedly served on the petitioner on 22.11.2014.

He did not make the payment.

This led to demand notice dated 18.02.2015 being issued and statedly served on 26.02.2015, followed by recovery certificate issued by the Commission on 01.04.2015.

The penalty not having been deposited, the Commission, by its order dated 16.03.2016, decided to initiate criminal action against the petitioner under section 42(3) of the Competition Act, the criminal complaint (No. 48346/2016) having been filed before CMM in its wake.

As mentioned in the context of the previous matter, the challenge of the petitioner to the imposition of penalty by the Commission before the Appellate Tribunal (by appeal Number 55/2015) and before the Supreme Court (by SLP) have concededly been unsuccessful.

THE CONTENTIONS It is the argument of the petitioners that the offence proved by Section 42(3) of the Competition Act cannot be invoked on the basis of allegation that the penalty imposed by the Commission under section 43 has not been paid, the penal clause leading to such criminal action in the court of CMM being intended to cover non- compliances of different nature.

It is also the argument of the petitioners that criminal action under Section 42(3), in such circumstances as noted above, would lead to double jeopardy which is unfair, unjust and impermissible.

The petitioner in the second and third matters also raises the grievances that the Commission while initiating the impugned criminal complaints against him has failed to bear in mind that he did not have any personal interest or stake, his responsibilities having come to an end w.e.f. 30.10.2013, he having been unfairly proceeded against even thereafter, despite the fact of change in the office bearers having been brought to the notice of the Commission by the FDA and the new committee, it being primarily the responsibility of the latter to provide the requisite information and documents.

The Commission, per contra, seeks to justify the initiation of criminal action arguing that the penal clause contained in Section 42(3) covers the event of non- compliance with all kinds of orders or directions of the Commission, including those specified in sub-section (2) of Section 42, besides failure to pay the fine as additionally imposed under the last said clause.

The Commission justifies the criminal complaint against the petitioner in the second and third matters, despite cessation of his connection with FDA w.e.f. 30.10.2013, referring in this context to the default despite knowledge on his part during the period preceding the said date, its submissions being that the issues raised by the said petitioner on this score are at best his defences giving rise to questions of fact which ought to be left for determination at the trial rather than being addressed in the jurisdiction under Section 482 Cr.

P.C. where, it is argued, such inquiry may not be feasible.

JURISDICTION AND POWERS OF THE COMMISSION 1 6 .

The Competition Act, 2002 (the Competition Act) came on the statute book w.e.f. 13.01.2003 for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets in India, and for matters connected therewith or incidental thereto.

With this legislation, the then existing Monopolies and Restrictive Trade Practices Act, 1969 stood repealed and Monopolies and Restrictive Trade Practices Commission (MRTPC) established under the said repealed Act was dissolved.

The Competition Act has established, by virtue of Section 7, the Commission (called Competition Commission of India).

The law also provides for an investigative machinery which aids and assists the Commission, it being headed by a functionary styled as Director General, as envisaged in Section 41.

The Competition Act prohibits anti-competitive agreements (Section 3) and abuse of dominant position (Section 4).

The prime duty of the Commission, as indicated by Section 18, is besides promoting and sustaining competition and the interest of the consumers ensuring freedom of trade.

The Commission is vested with the power to inquire into allegations of anti-competitive agreements or acts of commission or omission constituting abuse of dominant position or combinations violative of the prescription of law, by detailed provisions contained in Sections 19 and 20, such power to be exercised upon receipt of information, or complaint, or on its own motion, or upon reference.

For its aid and assistance, the Director General (appointed under Section 16) is vested with the duty to investigate , when so directed by the Commission.

The duties, powers and functions of the Commission are spelt out by the legislation (in the Chapter IV), the same including the authority to issue orders of certain nature viz., orders by Commission after inquiry into agreements or abuse of dominant position (Section 27) division of enterprise enjoying dominant position (Section 28) orders of Commission on certain combinations (Section 31) acts taking place outside India but having an effect on competition in India (Section 32) power to issue interim orders (Section 33) compensation in case of contravention of orders of Commission (Section 42-A) power to impose penalty for non-furnishing of information on combinations (Section 43-A).

The Commission also has the jurisdiction to impose monetary penalty in certain other situations including penalty for failure to comply with directions of the Commission and Director-General penalty for making false statement or omission to furnish material information (Section 44) besides penalty for offences in relation to furnishing of information (Section 45).

The Commission has been vested with the jurisdiction for execution of its orders imposing monetary penalty and, for this, the procedure is indicated in Section 39.

The failure to comply with the directions, or orders, of the Commission under Sections 27, 28, 31, 32, 33, 42-A and 43-A is made punishable with fine to be determined by the Commission, in terms of Section 42(2).

The provision contained in Section 42(3) renders noncompliance with the orders or directions issued, or failure to pay fine imposed under Section 42(2), a penal offence which is triable by the court of Chief Metropolitan Magistrate, Delhi (CMM), cognizance thereof be taken on a complaint.

The Commission is conferred, by Section 36(2), for purposes of its inquiry , with the powers of the civil court under the Code of Civil Procedure, 1908 in certain matters including summoning or enforcing attendance of any person, requiring discovery and production of documents, requisitioning any public record or document, receiving evidence on affidavit or on commission, etc.

These powers of the Commission are also extended to and conferred upon the Director General by Section 41(2) for purposes of its investigation .

It is in the above context that the failure to comply with the processes, orders or directions of the commissions or of the Director General are likely to be visited by penalty as envisaged by Section 43 which reads thus:- Penalty for failure to comply with directions of Commission and Director-General.

- If any person fails to comply, without reasonable cause, with a direction given by- The Commission under sub-sections (2) and (4) of section 36 or The Director-General while exercising powers referred to in sub- section (2) of section 41, such person shall be punishable with fine which may extend to rupees one lakh for each day during which such failure continues subject to a maximum of rupees one crore, as may be determined by the Commission.

The clause contained in sub-Section (3) of Section 42 is the only offence prescribed by the Competition Act, the jurisdiction to deal with which is conferred on the Chief Metropolitan Magistrate of Delhi, the pre-requisite being a complaint made by the Commission or any of its officers on its behalf.

This offence is provided, with punishment thereby attracted indicated, (in Chapter-VI), under the heading of penalties.

Noticeably, the power to impose penalties that can be levied under the law in various fact-situations is conferred on the Commission itself.

Section 42 needs to be quoted verbatim:- Contravention of orders of Commission.- The Commission may cause an inquiry to be made into compliance of its orders or directions made in exercise of its powers under the Act.

If any person, without reasonable cause, fails to comply with the orders or directions of the Commission issued under Sections 27, 28, 31, 32, 33, 42A and 43A of the Act, he shall be punishable with fine which may extent to rupees one lakh for each day during which such non-compliance occurs, subject to a maximum of rupees ten crore, as the Commission may determine.

If any person does not comply with the orders or directions issued, or fails to pay the fine imposed under sub-section (2), he shall, without prejudice to any proceeding under section 39, be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to rupees twenty-five crore, or with both, as the Chief Metropolitan Magistrate, Delhi may deem fit: Provided that the Chief Metropolitan Magistrate, Delhi shall not take cognizance of any offence under this section save on a complaint filed by the Commission or any of its officers authorised by it.

OPINION OF COURT It is the argument of the petitioners that the penal offence under Section 42(3), triable by a criminal court, has to be construed in light of the clause immediately preceding it that is to say sub-section (2) of Section 42 which, in turn, refers to the failure in compliance with the orders or directions of the Commission under specified provisions of the Competition Act, such provisions not including the one for penalty imposed under Section 43.

It is argued that since failure to pay penalty under Section 43 is not failure to comply with the orders or directions within the meaning of Section 42(2), such failure cannot lead to prosecution for the offence under Section 42(3).

It is also the argument of the petitioners that the provision contained in Section 42 is to deal with the situations arising out of contravention of orders of Commission (as is the marginal heading) and, therefore, the failure to comply with the processes issued by the Director General during investigation, in exercise of his power under Section 41(2) cannot be equated with failure to comply with the orders of the Commission within the meaning of Section 42(3).

It is further the submission of the petitioners that the failure to comply with processes of the Commission under Section 36 or of the Director General under Section 41 attracts penalty in terms of Section 43, as has been imposed in the present cases, prosecution for the offence under Section 42(3) would be in the nature of double jeopardy prohibited by Article 20(2) of the Constitution of India.

The above arguments do not impress this court.

The reasons may be set out hereinafter.

It is well settled that use of a comma and word or between two parts of a clause makes the two parts disjunctive.

In Union of India vs Rabinder Singh,  : (2012) 12 SCC 787, while construing similarly placed clause appearing in Section 42(f) of the Army Act, 1950, it was observed thus:- We accept the submission of Shri Tripathi that the two parts of Section 52(f) are disjunctive, which can also be seen from the fact that there is a comma and the conjunction or between the two parts of this clause (f) viz. does any other thing with intent to defraud, and (ii) to cause wrongful gain to one person or wrongful loss to another person.

If the legislature wanted both these parts to be read together, it would have used the conjunction and.

As we have noted earlier in Vimla  : AIR 1963 SC 1572 it was held that the term fraudulently is wider than the term dishonestly which however, requires a wrongful gain and a wrongful loss.

The appellants had charged the respondent for acting with intent to defraud, and therefore it was not necessary for the appellants to refer to the second part of Section 52(f) in the charge.

The reliance by the Division Bench on the judgment in section Harnam Singh  : (1976) 2 SCC 819 to justify the conclusions drawn by it was clearly erroneous.

Similarly, in A.K. Gopalan vs State of Madras,  : AIR 1950 SC 27, while interpreting Article 22(7) of the Constitution of India, it was held thus:- Section 12 of the impugned Act is challenged on the ground that it does not conform to the provisions of Article 22(7).

It is argued that Article 22(7) permits preventive detention beyond three months, when Parliament prescribes the circumstances in which, and the class or classes of cases in which , a person may be detained.

It was argued that both these conditions must be fulfilled.

In my opinion, this argument is unsound, because the words used in Article 22(7) themselves are against such interpretation.

The use of the word which twice in the first part of the sub-clause, read with the comma put after each, shows that the legislature wanted these to be read as disjunctive and not conjunctive.

Such argument might have been possible (though not necessarily accepted) if the article in the Constitution was the circumstances and the class or classes of cases in which .

I have no doubt that by the clause, as worded, the legislature intended that the power of preventive detention beyond three months may be exercised either if the circumstances in which, or the class or classes of cases in which, a person is suspected or apprehended to be doing the objectionable things mentioned in the section.

This contention therefore fails.

The view taken in Sambhu Nath Sarkar vs State of West Bengal, : (1973) 1 SCC 856, is similar.

Noticeably, in the clause defining the offence punishable under Section 42(3), the failure to pay the fine imposed under sub-section (2) of Section 42 is included as one of the possible reasons leading to such criminal action, it being provided by a disjunctive clause, the words or fails to pay the fine imposed under sub-section (2) being preceded and followed by a comma.

The comma (,) appearing prior to the said words separates it from the words if any person does not comply with the orders or directions issued.

The use of comma (,) is with a purpose.

It indicates that a cause of action for criminal complaint to be filed in the court of CMM arises in two possible situations, viz., (1) there has been a failure on the part of a person to comply with the orders or directions issued to him under the law or (2) on account of failure to pay fine imposed for non-compliance with orders or directions of the Commission under specified provisions (i.e., Sections 27, 28, 31, 32, 33, 42A and 43A), the Commission, after inquiry, having found absence of reasonable cause.

This court does not accept the argument that the words orders and directions in the first limb of section 42(3) are to be read as qualified by reference to the failure to pay the fine imposed under Section 42(2) as appearing in the second limb of Section 42(3).

It may be that the marginal heading of Section 42 refers to contravention of orders of the Commission.

But, noticeably, only the first two sub-sections of Section 42 refer to the Commission, such words being conspicuously missing in sub-section (3), the clause which provides for the offence.

It is clear that the legislature intended the offence thus provided to have a larger sweep, covering failure to comply with the orders or directions issued under the law, irrespective of whether they had been issued by the Commission or by its functionaries, like Director General.

For the above reasons, the suggested interpretation of Section 42(3) of the Competition Act does not commend itself to this court.

As regards the argument of double jeopardy, the same can be rejected by pointing out that the penalty under Section 43 is civil in nature imposed by the statutory authority (the Commission) in exercise of the powers conferred on it by the law, the criminal complaint alleging offence under Section 42(3) carrying the additional element of failure to comply further with the said direction, the criminal action even otherwise being not violative of Article 20(2), this view finding strength from the following observations of the Supreme Court in Union of India Anr.

vs Purushottam,  : (2015) 3 SCC 779:- The Constitution of India charters a contrasting course in the context of incorporation of the doctrine of double jeopardy in that Article 20(2) postulates that: 20.

(2) No person shall be prosecuted and punished for the same offence more than once.

This variance from constitutional protections given in other countries has prompted us to sift through the Debates of the Constituent Assembly so as to ascertain whether autrefois convict in preference to the more preponderant autrefois acquit, was the position intended to be ordained by the drafters of our Constitution.

These Debates bear witness to the fact that it was indeed meditated and intended.

The original proposal was -- No person shall be punished for the same offence more than once.

A proposed amendment whereby the words otherwise than as proposed by the Code of Criminal Procedure, 1898, was sought to be added, but was roundly rejected.

The suggestion made by Shri Naziruddin Ahmad was that the principle should be that a man cannot be tried again, tried twice, if he is acquitted or convicted by a court of competent jurisdiction, while the conviction or acquittal stands effective A man acquitted shall also not be liable to be tried again.

(2- 12-1948).

On the next day, the extracted intervention of Shri T.T. Krishnamachari was accepted, sounding the death knell for autrefois acquit and leading to Article 20(2) as it stands today.

Shri T.T. Krishnamachari (Madras: General): Mr. Vice-President, Sir, the point I have to place before the House happens to be a comparatively narrow one.

In this Article 14, clause (2) reads thus: No person shall be punished for the same offence more than once.

It has been pointed out to me by more Members of this House that this might probably affect cases where, as in the case of an official of Government who has been dealt with departmentally and punishment has been inflicted, he cannot again be prosecuted and punished if he had committed a criminal offence or, per contra, if a government official had been prosecuted and sentenced to imprisonment or fine by a court, it might preclude the Government from taking disciplinary action against him.

Though the point is a narrow one and one which is capable of interpretation whether this provision in this particular clause in the fundamental rights will affect the discretion of Government acting under the rules of conduct and discipline in regard to its own officers, I think, when we are putting a ban on a particular type of action, it is better to make the point more clear.

I recognise that I am rather late now to move an amendment.

What I would like to do is to word the clause thus: No person shall be prosecuted and punished for the same offence more than once.

If my Honble Friend Dr Ambedkar will accept the addition of the words prosecuted and before the word punished and if you, Sir, and the House will give him permission to do so, it will not merely be a wise thing to do but it will save a lot of trouble for the Governments of the future.

That is the suggestion I venture to place before the House.

It is for the House to deal with it in whatever manner it deems fit.

It would be relevant to mention that modern jurisprudence is presently partial to the perusal of Parliamentary Debates in the context of interpreting statutory provisions, although earlier this exercise was looked upon askance.

Suffice it to mention the analysis of the Constitution Bench in R.S. Nayak v. R. Antulay  : (1984) 2 SCC 183 and in Haldiram Bhujiawala v. Anand Kumar Deepak Kumar  : (2000) 3 SCC 250 and particularly Samatha v. State of A.P. : (1997) 8 SCC 191, where Parliamentary Debates were studied by this Court.

It appears to be beyond debate that the Framers of our Constitution were fully alive to the differing and disparate concepts of autrefois acquit and autrefois convict and consciously chose to circumscribe the doctrine of double jeopardy only to prosecution culminating in a conviction.

This facet of the law has already been carefully considered by the Constitution Bench in Maqbool Hussain v. State of Bombay,  : AIR 1953 SC 325, and we cannot do better than extract the relevant portions therefrom: (AIR pp.

328-29, paras 7 11-12) The fundamental right which is guaranteed in Article 20(2) enunciates the principle of autrefois convict or double jeopardy.

The roots of that principle are to be found in the well-established rule of the common law of England that where a person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence.

(Per Charles, J. in R. v. Miles (1890) LR 24 QBD 423: (1886-90) All ER Rep 715 (CCR).

To the same effect is the ancient maxim Nimo Bis Debet Puniri Pro Uno Delicto, that is to say that no one ought to be twice punished for one offence or as it is sometimes written Pro Eadem Causa, that is, for the same cause.

These were the materials which formed the background of the guarantee of fundamental right given in Article 20(2).

It incorporated within its scope the plea of autrefois convict as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence.

The words before a court of law or judicial tribunal are not to be found in Article 20(2).

But if regard be had to the whole background indicated above it is clear that in order that the protection of Article 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a court of law or a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath.

The very wording of Article 20 and the words used therein--convicted, commission of the act charged as an offence, be subjected to a penalty, commission of the offence, prosecuted, and punished, accused of any offence, would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.

Keeping in perspective this exposition of double jeopardy as postulated in our Constitution, the obiter dicta in State of Bihar v. Murad Ali Khan  : (1988) 4 SCC 655: 1989 SCC (Cri.) 27, expressed on passant by the two-Judge Bench does not correctly clarify the law, as this view is contrary to the dictum of the Constitution Bench Maqbool Hussain v. State of Bombay,  : AIR 1953 SC 325 : 1953 Cri.

L.J. 1432: 1953 SCR 730, which was not brought to the notice of the Bench.

The US Supreme Court has extensively excogitated over the conundrum as to what constitutes a successive punishment for the purposes of attracting constitutional protection against double jeopardy, under the Fifth Amendment.

The Court, in Hudson v. United States Hudson v. United States, 139 L Ed 2d 450:  : 522 US 93(1997), affirmed the distinction between civil punishment and proceedings and criminal punishment and prosecution, and held that the Fifth Amendment proscribes two (or more) successive punishments or prosecutions of a criminal nature only, and permits civil punishment or proceedings either preceding or succeeding a criminal prosecution or punishment.

In the case before the US Supreme Court, John Hudson was the Chairman of the First National Bank of Tipton and the First National Bank of Hammon, and used his position to regain bank stock he had used as collateral on defaulted loans through a series of bank loans to other parties.

Upon investigation the Office of the Comptroller of Currency (OCC) found that the loans were made in violation of several banking statutes and regulations.

The OCC fined and debarred Hudson for the violations.

Later, he faced criminal indictment in the Federal District Court for violations tied to those same events.

Hudson objected, arguing that the indictment violated the double jeopardy clause of the Fifth Amendment.

Overruling United States v. Halper  : 104 L Ed 2d 487: 490 US 435(1989), wherein the Court had ruled as unconstitutional successive proceedings taking place in similar circumstances to Hudsons case, the Court in Hudson Hudson v. United States,  : 139 L Ed 2d 450: 522 US 93(1997) reaffirmed the distinction established between the civil and criminal nature of the particular successive punishment, in United States v. Ward 65 L Ed 2d 742: 448 US 242 (1980).

The US Supreme Court thus held in Hudson case Hudson v. United States,  : 139 L Ed 2d 450: 522 US 93 (1997) that the double jeopardy clause did not preclude his subsequent criminal prosecution, because the OCC administrative proceedings were civil, not criminal.

Inter alia, the civil nature of the punishment was ascertained with reference to the money penalties statutes express designation of their sanctions as civil.

This reference indubitably eases the resolution of the double jeopardy question in the present appeal.

As has been detailed earlier, Article 20(2) does not within it imbibe the principle of autrefois acquit.

The Fifth Amendment safeguards, inasmuch as it postulates both autrefois acquit and autrefois convict, could have been interpreted to prohibit civil punishment even in the wake of an acquittal in prosecution, but was not found by the US Supreme Court to do so.

A fortiori Article 20(2), which contemplates prosecuted and punished thus evincing the conscious exclusion of autrefois acquit, palpably postulates that the prescribed successive punishment must be of a criminal character.

It irresistibly follows that departmental or disciplinary proceedings, even if punitive in amplitude, would not be outlawed by Article 20(2).

The petitioner in the second and third captioned matters has raised questions of fact about extent of his responsibilities, his ignorance, non-service of some of the notices or processes, generally referring to cessation of his role as the Honorary Secretary of FDA after 30.10.2013.

These questions of fact would need inquiry and scrutiny of evidence.

The forum of Section 482 Cr.

P.C. is not the correct one to embark upon such inquiry Rajiv Thapar and Ors.

Madan Lal Kapoor,  : (2013) 3 SCC 330.

For the foregoing reasons, these petitions cannot be accepted.

There are no good grounds as to why the criminal action initiated in the court of Chief Metropolitan Magistrate should be interfered with by this court at this stage.

The petitions are dismissed.

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Vibhu Bakhru, J. 1 .

These petitions call into question the penalties imposed by the Competition Commission of India (hereafter CCI) for non-filing of undertakings to cease and desist from anti-competitive conduct, within the time period as directed by CCI.

As the petitions impugn a common order, the same have been taken up together.

The petition, W.P.(C) Number 6260/2014 has been filed by M section R S Industries (hereafter RSI) and the petition, W.P.(C) Number 5947/2014 has been filed by M section Rajkumar Dyeing Printing Works Pvt.

Limited (hereafter Rajkumar Dyeing) inter alia seeking quashing of a common order dated 06.08.2014 (hereafter the impugned order) passed by CCI in Ref.

Case Number 1/2012 whereby CCI imposed a penalty of a sum of 5000/- per day on each of the petitioners, which works out to 14,10,000/- in the case of RSI and 13,65,000/- in case of Rajkumar Dyeing.

The said penalties were imposed under Section 42 of the Competition Act, 2002 (hereafter the Act) for failure on part of the petitioners to comply with the direction to file an undertaking to cease and desist from anti-competitive conduct in future, as ordered by CCI in its order of 06.08.2013 passed under section 27 of the Act.

Briefly stated, the relevant facts necessary for addressing the controversy are as under:- 3.1 The Directorate General of Supplies Disposals (DGSD) issued parallel Rate Contract tenders for supply of Polyster Blended Duck Ankle Boot with Rubber Sole (hereafter the product) for the period 01.12.2011 to 30.11.2012.

Amongst others, both the petitioners also participated in the tender which was opened on 29.07.2011.

2 DGSD noticed that the difference in the prices quoted by different bidders was in a very narrow range and all the bidders, barring one, had restricted the quantity to be supplied by it during the Rate Contract period.

This led DGSD to file a reference (Ref. Case Number 1/2012) before CCI under Section 19(1)(b) of the Act, against all the bidders including the petitioners, inter alia, alleging bid rigging and market allocation.

It was alleged that the participation in the tender was pre-determined, collusive and the bidding pattern was restrictive, indicating formation of a cartel by the bidders in violation to the provisions of the Act.

3.3 On 08.05.2012, CCI recorded a prima facie opinion, under Section 26(1) of the Act, that a case of contravention of the provisions of the Act was made out and referred the matter to Director General (DG) to conduct an investigation and submit its report.

DG submitted its report to CCI on 26.12.2012.

Thereafter, on 06.08.2013, CCI passed an order under Section 27 of the Act, inter alia, directing the bidders to cease and desist from anticompetitive conduct in future and also file an undertaking to that effect within a period of 30 days from the date of receipt of the order.

3.4 The petitioners and others bidders filed appeals against CCIs order of 06.08.2013, under Section 53B of the Act before the Competition Appellate Tribunal (hereafter COMPAT).

By a common order dated 22.04.2014, COMPAT allowed the interim applications by directing the appellants (other than RSI), to deposit 5 of the penalty imposed by CCI.

In the case of RSI, COMPAT granted a complete stay of penalty.

However, CCIs direction to cease and desist from anti-competitive conduct was not interfered with.

5 CCI, thereafter, issued show cause notices dated 30.05.2014, under Section 42 of the Act read with Regulation 48 of the Competition Commission of India (General) Regulation, 2009, (hereafter the Regulations 2009) to the petitioners who had failed to file the undertakings to cease and desist from anti-competitive conduct.

After receipt of the notices, the petitioners filed the requisite undertakings.

3.6 By the impugned order, CCI observed that the petitioners had failed to file the undertakings as directed because Rajkumar Dyeing and RSI were required to file their respective undertakings on 20.09.2013 and 15.09.2013 and the same were filed on 20.06.2014 and 24.06.2014 respectively.

In the circumstances, CCI passed the impugned order imposing penalty for noncompliance of its order.

The learned counsel appearing for the petitioners submitted that the non-filing of the undertaking within the prescribed time was neither intentional nor deliberate and there were reasonable causes which CCI failed to examine and consider.

Therefore, CCI had acted de hors its powers under Section 42 of the Act in passing the impugned order.

It was submitted that, in the alternative, the penalty of 5,000/- per day was grossly disproportionate in facts and circumstances of the case as CCI failed to take into account various factors that were relevant for determining the quantum of penalty.

It was submitted that CCI failed to take into account that the petitioners are small scale industries and had not willfully acted in defiance of CCIs order.

The learned counsel for RSI drew the attention of this court to the fact that RSI had been de-registered as a small scale industry with DGSD on 21.12.2011 and had neither supplied any products under the Rate Contract in question nor could possibly participate in any other DGSD tender on account of its de-registration.

The learned counsel for Rajkumar Dyeing pointed out that Rajkumar Dyeing and other bidders were blacklisted by DGSD after the CCIs order dated 06.08.2013 and thus were disabled from participating in future tenders with regard to the product.

In the circumstances, there was no question of the bidders indulging in any anti-competitive conduct.

Further, the petitioners did not benefit in any manner from not filing the undertaking in question.

It was also contended on behalf of the petitioners that the show cause notices were defective and invalid as the period for which the purported penalty was sought to be imposed was not mentioned in the notice.

Consequently, the proceedings emanating therefrom were also contended to be invalid.

It was further submitted that the impugned order is violative of Article 14, Article 19(1)(g) and Article 300-A of the Constitution of the India.

The learned counsel for CCI submitted that the petitioners have not challenged the order dated 22.04.2014 of COMPAT and the relief of stay of direction of CCI to file undertakings to cease and desist from anticompetitive conduct was rejected.

It was submitted that the show cause notice was issued to the petitioners for not complying with the directions of CCI and the penalty was imposed by CCI in view of the admissions made by the petitioners.

The learned counsel for CCI referred to Regulation 36 of the Regulations 2009 and stressed that the levy of penalty for non- filing of the undertaking as directed was within the powers of CCI.

It was submitted that the pendency of appeal before COMPAT or the interim stay of penalty granted by COMPAT would not inhibit CCI from passing an order under Section 42 of the Act, particularly as COMPAT had declined to stay CCIs direction to file an undertaking to cease and desist from anti-competitive conduct.

In the aforesaid backdrop, the controversy that needs to be addressed is whether the levy of penalty of 13,65,000/- in case of Rajkumar Dyeing and 14,10,000/- in case of RSI is arbitrary and or unreasonable.

CCI by its order dated 06.08.2013 had found that the petitioners had indulged in bid rigging collusive bidding and had contravened the provisions of Section 3(1) read with Section 3(3)(a) and 3(3)(d) of the Act.

Further, CCI also held that the petitioners had controlled limited the supply of the product in question and shared the market of the product under an agreement arrangement and thus, acted in contravention of the provisions of Section 3(1) read with Section 3(3)(b), (c) (d) of the Act.

In view of the above findings, CCI imposed a penalty at the rate of 5 of the average annual turnover of the delinquent entities for the preceding three years.

In addition, the entities including the petitioners were directed to cease and desist from indulging in such anti-competitive conduct in future.

CCI also directed the parties to file an undertaking by way of compliance.

The findings of CCI with respect to anti-competitive conduct of the petitioners, the imposition of penalty and the direction to cease and desist from anti-competitive conduct as ordered by CCI in its order of 06.08.2013 under Section 27 of the Act, are not subject matter of dispute in the present petition an appeal has been preferred by the petitioners against the said order before COMPAT.

However, the directions issued by CCI to cease and desist from anti-competitive conduct and for filing an undertaking to the said effect are relevant for the present proceedings and the relevant extract from CCIs order dated 06.08.2013 is quoted below:- In view of the above discussion, the Commission directs the opposite parties to cease and desist from indulging in such anti-competitive conduct in future.

xxxx xxxx xxxx xxxx xxxx 5 0 .

The directions contained in para 48 above, should be complied with immediate effect and the opposite parties are also directed to file an undertaking to this effect within a period of 30 days from the date of receipt of this order.

The petitioners had also sought interim relief from COMPAT and although the imposition of penalty was stayed in the case of RSI, other entities including Rajkumar Dyeing were directed to deposit 5 of the penalty imposed by CCI.

However, COMPAT did not stay the cease and desist order of CCI.

The relevant extract of COMPATs order of 22.04.2014 is as under:- Be that as it may.

We find that there is a prima facie case for grant of interim orders.

While considering the fact as to whether the appellants are entitled to absolute stay of the impugned order, the learned counsel for the appellants urged that they are already facing a dire financial calamity on account of the impugned order and there is every likelihood that the industry would come to a grinding halt.

That of course does not seem to be such a possibility at least in the near future.

The fact of the matter is that all these manufacturers are small scale industries and there should be at least encouragement to such industries to grow.

However, the absolute stay is not possible in view of the proved allegations against these appellants.

We, therefore, direct the stay of the operation of the order passed by the CCI in so far as it pertains to the penalty aspect subject to the condition that these appellants shall deposit 5 of the penalty imposed by the CCI within two months from today.

It is made clear that if the penalty is not paid as has been ordered above, the appeal itself shall be treated to be dismissed without further reference to this Tribunal.

However, in I.A. Number 80/2013 in Appeal Number 43/2013, the situation is slightly different.

The learned counsel for the appellant makes a statement which is not controverted by the other side that the concerned manufacturer has not made any supplies under the present Rate Contract as no order was sent to him perhaps on account of the fact that the appellant concern has lost its registration as a small scale industry with the DGSD because of the internal family disputes.

In that case, the appellant is justified in praying for an absolute stay of the penalty.

We, therefore, order accordingly.

In all the matters, the Tribunal does not see any necessity of staying the cease desist order of the CCI.

Thus this order shall continue.

It is important to note that COMPAT had stayed the deposit of 95 of the penalty in all cases and granted a complete stay in the case of RSI for the reason that all entities were small scale industries and small scale industries required encouragement to grow.

COMPAT also noted the submission that the appellants were facing hardships on account of blacklisting pursuant to the orders passed by CCI.

In the case of RSI, COMPAT also noted that the manufacturer had not made any supplies under the Rate Contract and had further lost its registration with DGSD.

Before proceeding further, it would be apposite to consider the provisions of Section 27 of the Act which provides for the orders that can be passed by CCI after it has found contravention of Section 3 or 4 of the Act.

Section 27 is quoted below:- Orders by Commission after inquiry into agreements or abuse of dominant position. - Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely:- (a) direct any enterprise or association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be (b) impose such penalty, as it may deem fit which shall be not more than ten per cent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse: Provided that in case any agreement referred to in section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten per cent of its turnover for each year of the continuance of such agreement, whichever is higher. (d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission (e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any (g) pass such other order or issue such directions as it may deem fit: Provided that while passing orders under this section, if the Commission comes to a finding, that an enterprise in contravention to section 3 or section 4 of the Act is a member of a group as defined in clause (b) of the Explanation to section 5 of the Act, and other members of such a group are also responsible for, or have contributed to, such a contravention, then it may pass orders, under this section, against such members of the group.

It is apparent from the plain reading of Section 27 of the Act that CCI has the power to impose such penalty as it deems fit, which is not more than 10 of the average annual turnover of the delinquent entities for the preceding three financial years.

This is a substantive provision which circumscribes the power of CCI to impose penalty.

In addition, CCI also has the power to direct that the parties involved in an offending agreement arrangement, discontinue the same and not enter into such agreement in future.

The directions passed by CCI in its order of 06.08.2013, imposing penalty and directing the opposite parties (i.e. all bidders including the petitioners) to cease and desist from indulging in anticompetitive conduct in future, are clearly covered within the provisions of Section 27 of the Act the direction to file an undertaking to cease and desist from anti-competitive conduct, was only to aid and ensure compliance of the cease and desist direction as contained in paragraph 48 of the said order.

It is, thus, apparent that, in substance, the order passed under Section 27 of the Act by CCI was one of imposing penalty and directing the parties to cease and desist from anti-competitive conduct in future.

In this perspective, the direction to file an undertaking was not a part of the substantive measures taken by CCI.

It was necessary for CCI to bear this aspect in mind while considering imposition of penalty under Section 42 of the Act.

At this stage, it is necessary to refer to Section 42 of the Act which reads as under:- Contravention of orders of Commission.- (1) The Commission may cause an inquiry to be made into compliance of its orders or directions made in exercise of its powers under the Act.

If any person, without reasonable cause, fails to comply with the orders or directions of the Commission issued under sections 27, 28, 31, 32, 33, 42A and 43A of the Act, he shall be punishable with fine which may extend to rupees one lakh for each day during which such non-compliance occurs, subject to a maximum of rupees ten crore, as the Commission may determine.

If any person does not comply with the orders or directions issued, or fails to pay the fine imposed under subsection (2), he shall, without prejudice to any proceeding under section 39, be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to rupees twenty-five crore, or with both, as the Chief Metropolitan Magistrate, Delhi may deem fit: Provided that the Chief Metropolitan Magistrate, Delhi shall not take cognizance of any offence under this section save on a complaint filed by the Commission or any of its officers authorised by it.

It is apparent from the above that penalties as contemplated under Section 42(2) of the Act are levied as a punitive measure for noncompliance of orders including orders under Section 27 of the Act.

Given the nature of penalties and the wide discretion vested with CCI, the same are to be considered keeping in view several relevant factors including the nature of directions that have remained uncomplied - whether they are substantive or merely formal, the effect of such non-compliance, the intention of the parties accused of non-compliance, the benefit derived by such parties, causes for non-compliance.

Penalties by their very nature are punitive measures and thus, have to be considered in light of the gravity of the offence in respect of which they are imposed.

In the present case, there is no allegation that the petitioners had indulged in any anti-competitive conduct or had failed to comply with the directions to cease and desist from anti-competitive conduct as directed by CCI.

In the case of R.S. Industries, W.P.(C) 6260/2014, the petitioner (RSI) had lost its registration with DGSD on 21.12.2011.

Thus even prior to the information being filed with CCI and CCI recording its prima facie opinion, the petitioner had ceased to be a DGSD Rate Contractor.

Consequently, the petitioner had neither participated in the Rate Contract nor was capable of doing so.

In the circumstances, the question of the petitioner entering into any arrangement or bid rigging or indulging in anticompetitive conduct proscribed by CCI, did not arise.

In W.P.(C) 5947/2014, the petitioner - Rajkumar Dyeing was blacklisted and debarred from participating in Rate Contract by the DGSD after CCIs order of 06.08.2013 and so were other bidders.

In the given circumstances, it is amply clear there was neither any allegation that the petitioners had failed to comply with the cease and desist order nor in fact the petitioners could have indulged in an anti competitive conduct after CCIs order of 06.08.2013.

Thus, in the present case, CCI has imposed penalty even though CCIs cease and desist order was not violated and had been fully complied with.

Essentially, the petitioners have been faulted for not filing an undertaking, which direction - as stated earlier - was only in aid of the substantive cease and desist order.

The learned counsel appearing for CCI argued that CCI had acted fully within its jurisdiction in directing an undertaking to be filed in exercise of its powers under Regulation 36 of the Regulations 2009.

The said Regulation 36 reads as under:- Compliance of orders of Commission.-The Commission shall have power to direct the parties concerned to file an affidavit of compliance of its order or such other documents in the manner specified in its order.

The plain language of Regulation 36 of the Regulations 2009 clearly supports the view that the direction to file an undertaking was, in substance, a direction seeking compliance of the substantive orders passed under Section 27 of the Act, namely, the directions to cease and desist from anticompetitive conduct.

It was contended on behalf of CCI that COMPAT had rejected the interim prayer for stay of the direction for filing an undertaking to cease and desist from anti- competitive conduct as directed by CCI.

However, this is not entirely accurate.

COMPAT had not found the necessity to interfere with CCIs direction to cease and desist and had declined to stay the same the question of filing the undertaking was not commented upon by COMPAT as the same was merely in aid to ensure compliance to the cease and desist order COMPAT did not in any manner either enhance or dilute the substantive direction to cease and desist from anti-competitive conduct as issued by CCI.

In the aforesaid view, I find the penalty imposed by CCI to be shockingly disproportionate, as it has been imposed only on account of non-filing of a document in aid of compliance of a substantive direction that was, undisputedly, complied with.

The doctrine of proportionately is well established in our jurisprudence and is a recognised facet of Article 14 of the Constitution of India.

Article 14 of the Constitution of India strikes at arbitrariness, as the same is opposed to the rule of law.

The Supreme Court in the case of A.P. Dairy Development Corpn.

Federation v. Narasimha Reddy:  : (2011) 9 SCC 286 has held as under:- It is a settled legal proposition that Article 14 of the Constitution strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality.

This doctrine of arbitrariness is not restricted only to executive actions, but also applies to the legislature.

Thus, a party has to satisfy that the action was reasonable, not done in unreasonable manner or capriciously or at pleasure without adequate determining principle, rational, and has been done according to reason or judgment, and certainly does not depend on the will alone.

In recent years, in matters relating to punitive measures, the emphasis has shifted from the wednesbury principle of unreasonableness to one of proportionality.

A disproportionate punitive measure, which is not commensurate with the offence, would fall foul of Article 14 of the Constitution of India.

The Supreme Court in Coimbatore District Central Coop.

Bank v. Employees Assn.

:  : (2007) 4 SCC 669 observed as under:- Doctrine of proportionality So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived in our legal system but has come to stay.

With the rapid growth of administrative law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts.

If an action taken by any authority is contrary to law, improper, irrational or otherwise unreasonable, a court of law can interfere with such action by exercising power of judicial review.

One of such modes of exercising power, known to law is the doctrine of proportionality.

Proportionality is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision.

The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case.

The doctrine of proportionality thus steps in focus true nature of exercise-the elaboration of a rule of permissible priorities.

de Smith states that proportionality involves balancing test and necessity test.

Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative.

Judicial Review of Administrative Action (1995), pp.

601-05, para 13.085 see also Wade Forsyth: Administrative Law (2005), p. 366.

xxxx xxxx xxxx xxxx xxxx Applying the doctrine of proportionality and following CCSU (1984) 3 All ER 935 (HL), Venkatachaliah, J. (as His Lordship then was) observed: (SCC p. 620, para 25) The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial.

But the sentence has to suit the offence and the offender.

It should not be vindictive or unduly harsh.

It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias.

The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction.

Irrationality and perversity are recognised grounds of judicial review.

(emphasis supplied) Applying the aforesaid principles to the facts of the present case, it is clear that CCI has imposed a punitive measure which has little co-relation with the gravity of the offending acts.

In my view, the impugned order even fails the Wednesbury test of unreasonableness, which was explained by Lord Diplok in Council of Civil Service Unions v Minister for Civil Service: (1984) 3 All ER 935 as So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

The learned counsel for CCI sought to draw the attention of this court to various provisions of the Act and contended that CCI has wide discretion and extensive powers.

Undoubtedly so.

But, greater the powers, larger the responsibility on the authority vested with it to exercise the same judicially and in public interest.

The question involved in the present case is not one of width of CCIs power but the exercise of it.

The discretion vested with CCI has to be exercised in a reasonable manner and after considering the relevant factors.

In Associated Provincial Picture Houses v. Wednesbury Corporation: 1948 1 KB 223 Lord Greene, M.R had explained acting unreasonably as under:- It is true the discretion must be exercised reasonably.

Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word unreasonable in a rather comprehensive sense.

It has frequently been used and is frequently used as a general description of the things that must not be done.

For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law.

He must call his own attention to the matters which he is bound to consider.

He must exclude from his consideration matters which are irrelevant to what he has to consider.

If he does not obey those rules, he may truly be said, and often is said, to be acting unreasonably.

The Supreme Court in the case Indian Rly.

Construction Company Limited v. Ajay Kumar:  : (2003) 4 SCC 579 also considered and noted the decision of Wednesbury Corporation (supra) and held has under:- Therefore, to arrive at a decision on reasonableness the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors.

The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one.

It is well settled that discretion with the public authority must be applied after taking into account relevant considerations.

In the present case, CCI failed to apply its mind to most of the relevant considerations.

First of all, CCI has not taken into account that its substantive direction to cease and desist from anti-competitive conduct had not been violated.

Secondly, CCI has not considered any element of public interest, warranting an imposition of such penalty.

Undisputedly, in absence of violation of the cease and desist order, the failure on the part of the petitioners to file an undertaking did not have any adverse effect on public interest.

CCI seemed to have completely ignored this aspect.

It is also clear that the petitioners did not benefit from non-filing of the undertaking and there was no reason why the petitioners contention that there failure to file undertaking was untentional, should not have been accepted.

I find it also strange that CCI did not consider fit to be guided by the order dated 22.02.2014 passed by COMPAT which had considered the mitigating circumstances and stayed the deposit of penalty to the extent of 95 in case of Rajkumar Dyeing and entirety in the case of RSI.

COMPAT had stayed the penalty on account of the petitioners being small scale industries.

This consideration was completely ignored by CCI.

It is relevant to note that CCI in impugned order observed as under:- It is also observed that OP 6 and OP 9 did not file the undertaking even after the COMPAT order dated 22nd April 2014, wherein, it was clearly stated by COMPAT that there is no stay against the Commissions direction to the OPs to file cease and desist undertaking as required by the Commissions order dated 6th August 2013.

This observation made by CCI is also erroneous and misquotes the order passed by COMPAT.

COMPAT had not commented on the cease and desist undertaking in its order of 22.04.2014 but had expressed that it does not see any necessity of staying the cease desist order of the CCI.

Thus, not only CCI has overlooked the reasons of COMPAT for staying the penalty imposed by CCI, it has also sought to justify the levy of penalty by misquoting the operative part of COMPATs order of 22.04.2014.

In view of the aforesaid, the impugned order is, clearly, without application of mind and has been passed in wanton exercise of powers, ignoring the relevant factors and the constitutional principles.

Accordingly, the petitions are allowed and the impugned order is set aside.

The applications stand disposed of.

The parties shall bear their own costs.

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