Bombay High Court
Lawyers Collective Through Anand ... vs Central Bureau Of Investigation And Anr on 25 July, 2019
Bench: Ranjit More, Bharati H.Dangre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3841 OF 2019
Lawyers Collective & Ors. .. Petitioners
Vs.
Central Bureau of Investigation
& Ors. .. Respondents
...
Mr. Aspi Chinoy, senior counsel with Mr. Ajay Kumar, Ms.
Anjali Praveen i/b Samvad Partners for the petitioners.
Mr. Anil C. Singh, A.S.G. with Mr. Sandesh Patil for respondent
No.1 - CBI.
Mr. F.R. Shaikh, A.P.P. for respondent No.2 - State.
CORAM: SHRI RANJIT MORE &
SMT. BHARATI H.DANGRE, JJ.
DATED : 25th JULY, 2019.
P.C.:-
1. The present petition filed by "Lawyers Collective", a Society registered under the Societies Registration Act is filed through its authorized signatory Mr. Anand Grover praying for quashing and setting aside FIR No.RC0682019E0004 dated AJN ::: Uploaded on - 26/07/2019 ::: Downloaded on - 27/07/2019 01:15:05 ::: 2/12 904 WP-3841.19 13/06/2019 registered with CBI Economic Offences Branch, Mumbai. Petitioner No.1 is a Society and Public Trust and the members and trustees of petitioner No.1 include the persons connected with legal profession and it claims to be set up with a philosophy that law is an instrument of social change and petitioner No.1 proclaims that it has striven to protect the fundamental rights of the citizens of this country and has campaigned for bringing in law reforms aimed at protecting civil liberties and promoting socio-economic rights of the people.
Petitioner Nos.2 and 3 are practicing senior advocates and claimed to be recipients of accolades on the social front.
2. Learned senior counsel Mr. Chinoy representing the petitioners would question the registration of FIR against the petitioners by which apart from the offences under the IPC, the provisions of Foreign Contribution (Regulation) Act, 2010 ("FCRA, 2010") have also been invoked. Mr. Chinoy would invite our attention to the sequence of events leading to the filing of the present FIR and would submit that the petitioner AJN ::: Uploaded on - 26/07/2019 ::: Downloaded on - 27/07/2019 01:15:05 ::: 3/12 904 WP-3841.19 No.1 has been supported by many bilateral and multilateral agencies through foreign contributions and the petitioner No.1 was conferred with Certificate of Registration dated 23/10/2000 under Section 6 of the FCRA, 1976 and on repeal of the said enactment, when the FCRA, 2010 came into force, in terms of proviso appended to Section 11(1) of the FCRA, 2010, the petitioner No.1 was deemed to be registered under the FCRA, 2010. He would thus submit that the contributions received by petitioner No.1 are in confirmity with the requirement of FCRA.
He would further submit that an inspection of the accounts and records of petitioner No.1 was carried out by CBI in January, 2016 and petitioner No.1 was supplied with the findings of the inspection which contained 14 points. Mr. Chinoy, learned senior counsel would submit that the Certificate of Registration of petitioner No.1 came to be suspended by the Ministry of Home Affairs on 31/05/2016 petitioner No.1 was barred from receiving and utilizing any foreign contribution without prior approval of Respondent No.1. Further by Order dated 27/11/2016 the FCRA AJN ::: Uploaded on - 26/07/2019 ::: Downloaded on - 27/07/2019 01:15:05 ::: 4/12 904 WP-3841.19 Registration of petitioner No.1 came to be cancelled and the order of Cancellation of Registration was accompanied by ancillary directions to freeze all the bank accounts of petitioner No.1 and a direction to the Charity Commissioner, Mumbai to take action under Section 22 of FCRA, 2010 which is a provision for disposal of the assets of the organization that have become defunct.
Being aggrieved by the said order, petitioner No.1 has preferred a statutory appeal under Section 31(2) before this Court and the appeal came to be admitted and the order passed in First Appeal No.36 of 2017 is placed at Ex-E to the petition. By the said order, the learned Single Judge directed the respondents to consider the application of petitioner No.1 for permission to utilize the foreign contribution lying in the account of the petitioner and pass orders thereon within stipulated period though the freezing order upon FCRA Accounts/FCRA Utilization Account was not disturbed. Petitioner No.1 was directed to maintain and file each quarter, account of the amounts utilzied from the non-FCRA/Domestic Accounts.
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The submission of Mr. Chinoy is that in the light of the said proceedings pending before this court and since the respondent-Authorities have already exercised the remedy available to it under the FCRA provisions, the present proceedings are nothing but an abuse of process of law. His specific submission is that the FIR is based on the same report of the inspection conducted of the books of accounts of petitioner No.1 for the period 2009-10 to 2014-15 to ascertain violation of the provisions of the FCRA, in pursuance thereto, an action has already been initiated against petitioner No.1.
3. Learned senior counsel would also submit that perusal of the FIR and on it being accepted on its face value, it does not disclose any offence under the FCRA, 2010. In the background of the facts placed before us, it is prayed that the FIR does not make out any case against the petitioners and does not disclose a cognizable offence at all and applying the para-meters laid down by the Apex Court in Bhajan Lal, it is submitted that it is a fit case for quashing the FIR.
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4. As against the said submission, Mr. Anil Singh, the Additional Solicitor General would invite our attention to the provisions of the FCRA, 2010 and would submit that the FIR has been lodged on a complaint dated 15/05/2019 addressed to the Director, CBI, in terms of provisions of Section 43 of the FCRA, 2010 and the matter was entrusted to CBI for further investigation. He would also invite our attention to the Order dated 08/05/2019 in Criminal Writ Petition No.142 of 2019 filed by Lawyers Voice where the Hon'ble Apex Court while issuing notice had clarified that the pendency of the writ petition will not come in the way of the investigating agencies of the Government of India to act in accordance with law. Mr. Singh would submit that the allegations levelled in the FIR are based on the findings/observations of the inspection team, which conclusively lead to violation of FCRA provisions and he would place heavy reliance on the inspection report appended with the FIR. He would rely upon the findings in the said Report to demonstrate that there is brazen violation to the provisions of the FCRA by the petitioners and he has also invited our attention to the returns filed with the Income Tax AJN ::: Uploaded on - 26/07/2019 ::: Downloaded on - 27/07/2019 01:15:05 ::: 7/12 904 WP-3841.19 Department depicting the discrepancies as against the returns filed with the Ministry of Home Affairs in response to the show cause notice.
He would thus submit that the complaint prima facie discloses cognizable offences punishable under the provisions of the IPC as well as Section 33, 35, 37 and 39 of the FCRA 2010 read with Section 13(2) and Section 13(1)(d) of the Prevention of Corruption Act. Mr. Singh would submit that the interrogation of the petitioners is necessary since on inspection of the books of accounts and record, it has revealed that petitioner No.1 has indulged in activities which would amount to violation of various provisions of FCRA, 2010. Mr. Singh would also submit that the contribution which was received is not used for the purpose for which it was received and since the main thrust of the enactment is to regulate the foreign contribution and hospitality by foreign donors, the utilization of the amounts for an alien purpose would fall within Sections 7 and 8 of the FCRA, 2010. He would further submit that since at present only the FIR is registered and the investigation is at a very nascent stage, no interim protection be granted, in light of AJN ::: Uploaded on - 26/07/2019 ::: Downloaded on - 27/07/2019 01:15:05 ::: 8/12 904 WP-3841.19 the seriousness of the offence. He placed reliance on the judgment in the case of State of Telangana v. Habib Abdullah Jeelani reported in (2017) 2 SCC 799. He also seeks time to file a detail reply opposing the petition but, at present, restricts his arguments to grant of any interim protection.
5. On hearing learned senior counsels, we have perused the petition as well as the relevant material placed on record in the form of its annexures. We have taken note of the sequence of events set out therein and have carefully perused the provisions of FCRA, 2010, which is an Act to regulate the acceptance and utilization of foreign contribution or foreign hospitality by certain individuals or associations or companies and to prohibit acceptance and utilization of foreign contribution or foreign hospitality for any activities detrimental to the national interest and for matters connected therewith. Section 3 of the said enactment imposes prohibition to accept foreign contribution whereas Section 4 carves out a particular section of persons in respect of whom Section 3 shall not apply. Section 6 imposes restriction on acceptance of foreign hospitality. Section 7 of the AJN ::: Uploaded on - 26/07/2019 ::: Downloaded on - 27/07/2019 01:15:05 ::: 9/12 904 WP-3841.19 said enactment prohibits transfer of any foreign contribution by anyone, who is registered and granted a certificate. Section 8 imposes restrictions on utilization of foreign contribution whereas Section 12 sets out the provision for grant of certificate of registration and the condition subject to which the registration shall be granted.
6. In the scheme of the said statutory enactment, we have prima facie examined the case of the petitioners. Petitioner No.1 is a Society/Trust established with certain objectives and this include creation of awareness of legal rights, organisation of legal education program, convening seminars and discussions on legal issues of general public importance apart from the other allied objectives. It is not in dispute that petitioner No.1 was granted a certificate of registration under the provisions of the FCRA, 2010 and proceedings were initiated for cancellation of its registration under Section 14 of the Act by following due process. This action is sub-judice before the High Court in first appeal, which has been filed by Petitioner No.1. We have perused the FIR, which is based on AJN ::: Uploaded on - 26/07/2019 ::: Downloaded on - 27/07/2019 01:15:05 ::: 10/12 904 WP-3841.19 the complaint filed by the Under Secretary to Government of India, Ministry of Home Affairs, New Delhi and thereupon the FIR is sought to be registered by taking recourse to Section 43 of the FCRA, 2010 and the investigation in the offence is entrusted to CBI. It is also directed that if during the course of investigation, violation of other specific statutes is noted, CBI may send suitable references to the competent authorities for appropriate follow up actions. In any case, the registration of FIR is based upon an inspection report of the year 2016 and it has pointed out violation in 14 points. However, the said report was also the basis for cancellation of registration certificate of petitioner No.1 and the appeal on the said issue is pending adjudication in this court.
7. Prima facie we are of the opinion that if any violation of FCRA is attributed to petitioner No.1, an action is already initiated and there is no new material which are brought on record by the present FIR which is solely and entirely based on the inspection of Report of 2016. Petitioner No.1 has responded to the show cause notice pursuant to which AJN ::: Uploaded on - 26/07/2019 ::: Downloaded on - 27/07/2019 01:15:05 ::: 11/12 904 WP-3841.19 registration of petitioner No.1 was cancelled and the first appeal specifically alleges non consideration of the replies of petitioner No.1 and in such circumstances, in the absence of any fresh material being available for registration of the FIR, we deem it expedient to direct the respondents to file a detailed reply placing on record the material justifying the invocation of the provisions of the FCRA 2010.
8. The judgment relied upon by Mr. Singh is not of any succor to him since, the Apex Court was dealing with an appeal where it was urged that while declining to quash the FIR and investigation, the High Court has extended the privilege to the accused person which was in the nature of anticipatory bail, and this approach of the High Court was disapproved by the Hon'ble Apex Court and it was observed that such order passed by the High Court was absolutely unknown to the exercise of inherent jurisdiction under Section 482. Nonetheless, the Apex Court had observed that if the court thinks fit regard being had to the parameters of quashing and the self restrains imposed by law, it may pass appropriate interim orders as thought apposite AJN ::: Uploaded on - 26/07/2019 ::: Downloaded on - 27/07/2019 01:15:05 ::: 12/12 904 WP-3841.19 in law but what was frowned upon was the protection from arrest granted while declining to interfere in the investigation.
9. However, since prima facie on perusal of the FIR, we are satisfied that it is based on the 2016 inspection report, we are inclined to grant ad-interim relief in favour of the petitioners by directing the respondents not to take any coercive steps against the petitioners till the next date of hearing. We direct the matter be listed on 19/08/2019.
(SMT. BHARATI H. DANGRE, J.) (RANJIT MORE, J.) AJN ::: Uploaded on - 26/07/2019 ::: Downloaded on - 27/07/2019 01:15:05 :::