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8. Mr. Nigam pointed out that vide letter dated 26.11.2010 sanction issued to prosecute the petitioner under Section 27 FCRA, 1976, is based on violation of Section 8 (e) FCRA, 1976, i.e., receipt of funds from a relative but without prior permission of the Central Government.

9. The learned senior counsel further submitted that CBI filed the chargesheet on 13.12.2010 alleging violation of Section 4 read with Section 23 FCRA, 1976. The incomplete execution of LRs has been stated in para 16.9 of chargesheet, whereby stated as under:-

15. Mr. Nigam, submitted that case of the prosecution is that the sanction for investigation under Section 27 FCRA, 1976, and sanction for prosecution under Section 28 FCRA, 1976, were based on lack of prior permission and violation of Section 8(e) FCRA, 1976, i.e., receipt of gift from a relative (father) without prior permission. He further submitted that father of the petitioner, being an Indian and not a foreign source and it being a transaction between two Indians, neither provisions of FCRA, 1976 nor FCRA, 2010, would apply in the present case. The only case where an MLA may receive a foreign contribution after obtaining prior permission under FCRA, 1976, is where such funds are from a relative under Section 8(e) FCRA, 1976. In fact, the entire basis on which the petitioner was investigated and then prosecuted was the alleged violation of Section 8(e) FCRA, 1976 on account of receipt of funds from a relative without prior permission from the Central Government. Thus, whole case of the petitioner moves around Section 8(e) FCRA, 1976, and accordingly, Ministry of Home Affairs sanctioned investigation on the ground that no prior permission was obtained from the Central Government for receipt of funds from a relative. Even the chargesheet filed by the CBI is only based on lack of prior permission from the Central Government. However, since it is the prosecution's own premise that funds came from father of the petitioner but without prior permission under Section 8 (1)(e) FCRA, 1976. As per definition of 'foreign source' in Section 2 (1) (e) FCRA, 1976, only citizens of a foreign country or territory come under this category. Therefore, being an Indian, no foreign contribution regulatory legislation would apply on father of the petitioner. Not only the provisions of FCRA, 1976, but also FCRA, 2010, would be outside the realm of both these Legislations as the transaction being between an Indian father and Indian Son.

22. Mr. Nigam, learned senior counsel further submitted that sanction for prosecution order dated 26.11.2010 does not survive after the repeal of FCRA, 1976 and hence the bar imposed by Section 40 FCRA, 2010/Section 27 FCRA, 1976 (which prohibits cognizance without sanction) would trigger, rendering cognizance by the ld. Trial Court barred in law. He submitted that the sanction for prosecution vide order dated 26.11.2010 was passed under the FCRA, 1976. It was passed on the basis of violation of Section 8 (e) of the FCRA, 1976, i.e., petitioner's failure to take prior permission from the Central Government for receipt of funds from a relative. The sanctioning authority was thus of the mind that while funds have been received from a relative, no prior permission was taken from the Central Government.

63. The case of the prosecution is that sanction for investigation under Section 27 FCRA, 1976, and sanction for prosecution under Section 28 FCRA, 1976, were based on lack of prior permission and violation of Section 8(e) FCRA, 1976, i.e., receipt of gift from a relative without prior permission. Accordingly, the Ministry of Home Affairs sanctioned investigation on the ground that no prior permission was obtained from the Central Government for receipt of funds from a relative. Even the chargesheet filed by the CBI is only based on lack of prior permission from the Central Government.