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TMI Blog2019 (9) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; Advocate, Mr. Laksh Khanna, Advocate, Mr. Avishkar Singhvi with Mr. Kshitij Kumar Advocates. Respondents Through: Mr. Amit Mahajan, Mr. Ripu Daman Bhardwaj, Mr. Vinod Diwakar with Mr. Dhruv Pande and Ms. Mallika Hiramath, Advocates for UOI. Mr. Anil Grover, SPP for CBI with Mr. Shivesh P.Singh, Noopur Singhal and Mr. Mishal Vij, Advocates. J U D G M E N T MANMOHAN, J: (Oral) 1. The present batch of writ petitions seek to challenge the constitutional validity of Section 43 of the Foreign Contribution (Regulation) Act, 2010 (hereinafter referred to as 'FCRA') and Rule 22 of Foreign Contribution (Regulation) Rules, 2011 (hereinafter referred to as FCRR) on the ground that they are arbitrary, unreasonable, ultra vires and violative of Articles 14 and 21 of the Constitution of India. The petitioners further seek quashing of the letter dated 4th August, 2017 entrusting the investigation of their cases to the Central Bureau of Investigation (for short 'CBI'). The petitioners also seek quashing of the investigation being carried out by the CBI and Enforcement Directorate in pursuance to RCDAI-2017-A-0036 dated 16th November, 2017 (hereinafter referred to as 'RC 36/2017') and ECIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany had confessed before the Income Tax Authorities that he had booked bogus expenses and had indulged in over pricing of mobile medical units. CBI was requested to investigate whether the activities of the entities as stated in the said letter also attracted the provisions of other laws, i.e., IPC etc. for having diverted the funds for personal benefit of the office bearers or any other individuals apart from the violations of various provisions of FCRA. The letter dated 04th August, 2017 along with its annexures is reproduced hereinbelow:- "F.No.II/21022/58(0641)/2016-FCRA(MU)//S-3 Government of India Ministry of Home Affairs Foreigners Division (FCRA Wing) (Monitoring Unit) NDCC-II Building, Jai Singh Marg, New Delhi, the 4th August, 2017 To The Director, Central Bureau of Investigation, Plot No.5-B, CGO Complex, Lodhi Road, New Delhi-110003 Subject: Investigation under Section 43 of the FCRA, 2010 for contravention of FCRA-2010 by Advantage India, New Delhi-reg. Sir, M/s. Advantage India, 101-102, Oriental House, Gulmohar Enclave, New Delhi, is registered under the Foreign Contribution (Regulation) Act 2010 vide Registration No.231660389R for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made by the Income tax department in regard to the above two firms revealed that there was no such concerns at the given addresses and the amount received by these two firms from Advantage India were rotated through many bank accounts which prima facie were found to be bogus. The Income tax department has therefore found these two concerns as bogus and the expenses claimed on purchase of medicines from these two concern as fictitious and bogus. The facts on record clearly make out violation of Section 8(1)(a) (utilization of FC for the purpose it has been received), Section 18 (intimation), Section 19 (maintenance of accounts) and Section 33 of FCRA, 2010 (making of false statement, declaration or delivering false accounts). II. Agreements dated 05.10.2010, 18.12.2010 & 17.01.2013 with M/s. Accordis Health Care by the Association in support of its purchases of Mobile Medical Units/medicines etc. From the said company were verbatim, self-serving, full of contradictions and appeared to have been made on same day but signed for different dates. The said agreements are thus concocted. As per the documents provided by Income Tax authority, it is revealed that during the search by In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank account numbers while signing the agreements:- S.No. Donor Name Bank Name Account Number Address of Branch 1. AIRBUS Indian Overseas 0265020000 02166 70 Golf Link New Delhi 2. MBDA Indian Overseas 0265020000 02377 70 Golf Link New Delhi Received foreign contribution in more than one FCRA designated bank account is violation of Section 17 under FCRA, 2010. In the instant matter the Association has not intimated Government about opening of more than one account for the purpose of utilizing the foreign contribution. The Association has admitted the facts stating that it was done due to ignorance of provisions of FCRA, 2010. The reply of Association is not acceptable because ignorance of law is no excuse. Moreover, the Association has claimed to have been taking financial advice from professionals. Thus Associations violated Section 17 under FCRA, 2010 on both counts. VII. The Association has transferred considerable domestic contribution to the foreign contributions accounts. Mixing of foreign and domestic contribution is not permissible as per FCRA, 2010 and FCRR, 2011. The reply of the Association on this count is of evasive nature. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. Advantage India, New Delhi, has violated various provisions of FCRA Act 2010. It is a fit case for detailed investigation and criminal prosecution if found fit. The Central Bureau of Investigation (CBI) is, therefore, requested to conduct an investigation in terms of Section 43 of FCRA, 2010. CBI may also investigate whether the activities of these entities also attract the provisions of other penal laws i.e. IPC etc. For having diverted the funds for personal benefit of the officer bearer or any other individual. 3. It is requested that the investigation report in the matter may kindly be submitted to the Ministry at the earliest. Further, in terms of Rule 22 of Foreign Contribution (Regulation) Rules¸2011, the CBI is required to furnish reports to the Central Government on quarterly basis, indicating the status of each case that was entrusted to it, including information regarding the case number, date of registration, date of filing charge-sheet in the court, progress of trial, date of judgment and the conclusion of each case. Encls. As above Yours faithfully, Sd/- (Santosh Sharma) Director (FC&MU)" Annexure -I Background of the Donors:- As an initiative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For purchase of medicines 5. Payment made to M/s. Capital Print process & M/s. Capital Impex, New Delhi 4.93 For printed exercise note book 6. Purchase of expensive vehicles i.e. Toyota, Duster, Regent Garage .84 7. Office rent paid to Sh. Deepak Talwar .80 Former President of the association 8. Foreign tour expenses paid to Sh. Deepak Talwar .30 Former President of the association 9. Payment made to consultant M/s. T. Kapoor 1.04 Consultancies charges G.T. 76.68 (emphasis supplied) 3. The letter dated 04th August, 2017 became the basis of registration of FIR bearing No. RC 36/2017 under Sections 33, 35 and 37 of FCRA and Sections 120B/199/468/471/511 read with Section 417 of IPC with Anti Corruption Wing, CBI, New Delhi. The FIR bearing No. RC 36/2017 is reproduced hereinbelow:- "FIRST INFORMATION REPORT (Under Sec.154 Cr.P.C.) Book No. 1195 Serial No. 01 1. District: PS: Year: FIR No.: Date: New Delhi CBI/ACB/ 2017 RC-DAI-2017-A-0036 16.11.2017 New Delhi 2. (1) Act IPC Sections: 120B, 199, 468, 471 and 511 r/w 417 (2) Act FCRA, 2019 Sections: 33, 35, 37 3. (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, Sh.Raman Kapoor and T.Kapoor & other unknown persons U/s 120B, 199, 468, 471, 511 r/w 417 IPC & U/s 33, 35 & 37 of FCRA Act 2010 and entrusted to Sh. Shyam Prakash, Dy. SP, CBI, ACB, New Delhi for investigation." 4. CBI states that investigation is underway to verify the claimed supply of medicines, stationery and medical units worth more than Rupees Seventy Two crores and as to who were allegedly involved in fabrication of false documents and opening of bank accounts apart from identifying who is the actual beneficiary of the whole transactions. ARGUMENTS ON BEHALF OF PETITIONERS 5. Mr. N. Hariharan and Mr. Sudhir Nandrajog, learned senior counsel as well as Mr. Tanveer Ahmed Mir, Mr. Avishkar Singhvi and Mr. Dhruv Gupta, learned counsel for petitioners submit that in terms of Section 23 read with Section 43 of the FCRA, the Central Government can authorise either a Gazetted Officer or any other officer or authority or organisation for the purpose of investigation of commission of offences under the FCRA. According to them, as per the said provisions whosoever is authorized to inspect is vested with complete powers to investigate. They emphasise that once the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inform the arrestee of the grounds for such arrest as contemplated under Article 22(1) of the Constitution and Section 50 of the Code. Therefore, they have necessarily to make records of their statutory functions showing the name of the informant, as well as the name of the person who violated any other provision of the Code and who has been guilty of an offence punishable under the Act, nature of information received by them, time of the arrest, seizure of the contraband if any and the statements recorded during the course of the detection of the offence/offences. xxx xxx xxx 115. The above table manifestly imparts that all the powers vested on various authorities as given in the table are equipollent as being enjoyed by a police officer under the Code and exercised during investigation under Chapter XII because the investigation is nothing but an observation or inquiry into the allegations, circumstances or relationships in order to obtain factual information and make certain whether or not a violation of any law has been committed. 116. It should not be lost sight of the fact that a police officer making an invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents, which renders Section 43 manifestly arbitrary, unreasonable, ambiguous, unconstitutional and ultra vires on the vice of Articles 14 and 21 of the Constitution of India. Learned counsel for the petitioners suggest that the condition precedent of "recording of reasons" as envisaged under Section 23 FCRA should be read into Section 43 to render it constitutional. In support of their submission, they rely upon Supreme Court's judgment in State of Punjab vs. Khan Chand (1974) 1 SCC 549 wherein it has been held as under:- "8. We may state that the vesting of discretion in authorities in the exercise of power under an enactment does not by itself entail contravention of Article 14. What is objectionable is the conferment of arbitrary and uncontrolled discretion without any guidelines whatsoever with regard to the exercise of that discretion. Considering the complex nature of problems which have to be faced by a modern State, it is but inevitable that the matter of details should be left to the authorities acting under an enactment. Discretion has, therefore, to be given to the authorities concerned for the exercise of the powers vested in them under an enactment. The enactment mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case the Court will strike down both the law as well as the executive action under such law." 7. They also contend that in view of the prior registration of RC 9/2013 and ECIR 10/2017, the present FIR bearing RC 36/2017 amounts to reinvestigation inasmuch as the primary ground in the said ECIR 10/2017 dated 17th August 2017 and RC 9/2013 is the same. They submit that it is settled law that there cannot be multiple FIRs when the offences pertain to the 'same transaction'. In support of their submission, they rely upon Supreme Court's judgment in Amitbhai Anilchandra Shah vs. The Central Bureau of Investigation &Ors., (2013) 6 SCC 348 wherein it has been held as under:- "31. All the above assertions made by CBI support the stand of the petitioner. It is also relevant to note the stand taken by CBI and reliance placed on the same by this Court in the order dated 8-4-2011 in WP (Crl.) No. 115 of 2007 i.e. Narmada Bai [(2011) 5 SCC 79 : (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -affidavit, has specifically stated that as per their investigation Tulsiram Prajapati was a key witness in the murder of Sohrabuddin and he was the 'third person' who accompanied Sohrabuddin from Hyderabad and killing of Tulsiram Prajapati was a part of the same conspiracy. It was further stated that all the records qua Tulsiram Prajapati's case were crucial to unearth the 'larger conspiracy' regarding Sohrabuddin's case which despite being sought were not given by the State of Gujarat. 32. (vi) CBI submitted two reports-Status Report No. 1 on 30-7-2010 and a week thereafter, they filed the chargesheet. In pursuance of the charge-sheet, Accused 16, Amit Shah was arrested on 25-7-2010 and released on bail by the High Court of Gujarat on 29-10-2010. The order releasing him on bail is the subject-matter of the challenge in SLP (Crl.) No. 9003 of 2010. Status Report No. 1, filed by CBI before the Bench on 30-7-2010 informed the Court that Tulsiram Prajapati was abducted along with Sohrabuddin and Kausarbi and he was handed over to Rajasthan Police. .... xxx xxx xxx xxx 34. Inasmuch as the present writ petition is havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is further seen that there is substantial material already on record which makes it probable that the prime motive of elimination of Tulsiram Prajapati was that he was a witness to the abduction of Sohrabuddin and Kausarbi. xxx xxx xxx xxx 65. ... In view of various circumstances highlighted and in the light of the involvement of police officials of the State of Gujarat and police officers of two other States i.e. Andhra Pradesh and Rajasthan, it would not be desirable to allow the Gujarat State Police to continue with the investigation, accordingly, to meet the ends of justice and in the public interest, we feel that CBI should be directed to take the investigation. 37. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Antony [(2001) 6 SCC 181 : 2001 SCC (Cri) 1048] , this Court has categorically held that registration of second FIR (which is not a cross-case) is violative of Article 21 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Sita Devi. 48. In Anju Chaudhary this Court was concerned with a case in which the second FIR was not connected with the offence alleged in the first FIR. After carefully analysing the same, we are of the view that it has no relevance to the facts of the present case." 8. Learned counsel for the petitioners contend that "a delegatee cannot sub-delegate". They contend that the entrustment of investigation in the case "by respondent No.2" instead of "by Central Government" renders the issuance of the impugned communication dated 04th August, 2017 wholly without jurisdiction. Consequently, according to them, reference by respondent No.2 to CBI is per-se illegal and is, therefore, beyond the command of law. In support of their contention, they rely upon Supreme Court's judgment in Hussein Ghadially Alias M.H.G.A. Shaikh & Ors. Vs. State of Gujarat, (2014) 8 SCC 425 wherein it has been held as under:- "20. What falls for determination is whether these approvals can be said to be sufficient compliance with the provisions of Section 20-A of TADA that reads as under: "20-A. Cognizance of offence.-(1) Notwithstanding, anything contained in the Code, no information about the commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict Superintendent of Police would amount to such other authority clutching at the jurisdiction of the designated officer, no matter such officer or authority purporting to exercise that power is superior in rank and position to the officer authorised by law to take the decision. 21.3. Thirdly, because if the statute provides for a thing to be done in a particular manner, then it must be done in that manner alone. All other modes or methods of doing that thing must be deemed to have been prohibited. That proposition of law first was stated in Taylor v. Taylor[(1875) LR 1 Ch D 426] and adopted later by the Judicial Committee in Nazir Ahmad v. King Emperor [(1935-36) 63 IA 372 : (1936) 44 LW 583 : AIR 1936 PC 253] and by this Court in a series of judgments including those in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh[AIR 1954 SC 322 : 1954 Cri LJ 910] , State of U.P. v. Singhara Singh [AIR 1964 SC 358 : (1964) 1 Cri LJ 263 (2)] , Chandra Kishore Jha v. Mahavir Prasad [(1999) 8 SCC 266] , Dhanajaya Reddy v. State of Karnataka [(2001) 4 SCC 9 : 2001 SCC (Cri) 652] and Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd. [(2008) 4 SCC 755] The principle stated in the above decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the FCRA provides for sanction for prosecution of only the offences mentioned under the FCRA which contemplates the procedure of a complaint case and does not provide for the power of arrest. Hence, according to them, the registration of the FIR by CBI is non-est, unsustainable in the eyes of law and is thus liable to be quashed including all the proceedings emanating from registration of the said FIR. ARGUMENTS ON BEHALF OF RESPONDENT-UNION OF INDIA 13. Per contra, Mr. Amit Mahajan, learned standing counsel for Union of India and Enforcement Directorate submits that the FCRA has been enacted with the avowed purpose of regulating the foreign contribution received from abroad so as to monitor that the same is not used for a purpose other than what has been specified under the said Act. He states that the foreign contribution can potentially be used for terror funding which has a direct bearing on security and sovereignty of the country. He points out, that in some cases, it has been seen that the receipt of foreign contribution vide FCRA has been misused for purposes of money laundering which has a direct bearing on the economic health of the nation. He contends that the potential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers under Section 40 of FCRA, has already notified Union Home Secretary and Home Secretaries of the State Governments, as the case may be, as sanctioning authorities. The said Notification dated 27th October, 2011 is reproduced hereinbelow:- "MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 27th October, 2011 S.O. 2445 (E).-In excise of the powers conferred by Section 40 of the Foreign Contribution (Regulation) Act, 2010 (42 of 2010), the Central Government hereby authorises the following officers for according previous sanction as required under the said section, namely:- (i) the Union Home Secretary in respect of offences investigated by the Central Bureau of Investigation; (ii) the Home Secretary of the State Government concerned, in respect of offences investigated by the Investigating Agencies (Crime Branch) of the State Governments. [F.No. II/21022/10(1)/2010-FC-III] GV.V.SARMA, Jt. Secy." (emphasis supplied) 17. Learned standing counsel for Union of India also states that Section 41 of FCRA provides for compounding of certain offences for such sums as the Central Government may by notification specify. He points out that in exercise of powers under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 08th August, 2019. Consequently, learned standing counsel for Union of India and Enforcement Directorate submits that from the scheme of FCRA it is apparent that no part of it is vague and arbitrary and powers of different authorities are clearly defined. 21. Mr. Amit Mahajan submits that the submission that the FIR bearing No. RC 36/2017 could not have been registered as it amounts to a second FIR with regard to the same transaction, is not a ground taken in the writ petitions. In any event, he states that such a submission cannot be a ground for challenging the vires of the provisions of FCRA as the same is an argument on merits, which will have to be dealt with by the Court of appropriate jurisdiction at the relevant stage. 22. In the alternative, he submits that the argument advanced by the Petitioners that there was already an FIR registered with regard to the same transaction, is not true inasmuch as the earlier RC 9/2013 and ECIR 10/2017 pertain to undue pecuniary advantage being given to Airbus Industry by public servants in abuse of their official position and the corresponding loss caused to Government of India, whereas, the impugned RC 36/2017 pertains to violation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Sections 33, 35 and 37 of FCRA cannot be compounded in terms of Section 41 of FCRA. REJOINDER ARGUMENTS 28. In rejoinder, Mr. N. Hariharan, learned senior counsel for petitioners reiterates that a 'pick and choose' policy for referring cases to CBI has been arbitrarily resorted to under Section 43 of FCRA. He points out that out of 13,000 (Thirteen Thousand) NGOs whose licences had been cancelled under FCRA, only 4 (Four) cases have been referred to CBI for investigation. According to him, all the 13,000 (Thirteen Thousand) NGOs had violated Section 37 of FCRA and if the respondents' submissions were to be accepted, then FIR should have been filed by the CBI against all the 13,000 (Thirteen Thousand) NGO's. Mr. N. Hariharan also relies upon a judgment of the Supreme Court in Bhuwalka Steel Industries Ltd. vs. Bombay Iron and Steel Labour Board & Anr., (2010) 2 SCC 273 wherein it has been held as under:- "76. The argument is clearly erroneous for the simple reason that it is not the task of the State Government, more particularly, the executive branch to interpret the law; that is the task of the courts. Even if the State Government understood the Act in a particular manner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which deals with compounding of minor violations of civil nature under the FCRA, 2010. Copies of compounding notifications dated 26th August, 2011, 16th June, 2016 and 5th June, 2018 are annexed herewith at Annexure R1, R2 and R3 respectively. 4. However, the petitioner's NGO, i.e. M/s Advantage India has committed major violations of the provisions of FCRA, 2010, which lead to serious offences as enumerated under Chapter VIII of the FCRA, 2010 along with offences under various sections of IPC. Such violations have been committed wilfully and cannot be compounded. They call for investigation by the competent authority/Specified Authority to bring the guilty to book. 5. It is further submitted that as per the available records, the cases of 32 NGOs have been referred to CBI and of 09 other NGOs to State police for investigation under Section 28 of FCRA, 1976 and Section 43 of FCRA, 2010 under notification dated 27th October, 2011. List of the NGOs whose cases have been referred to specified authorities for investigation are attached herewith at Annexure R-4 and R-5 respectively." COURT'S REASONING THE COURT SHOULD EXERCISE JUDICIAL RESTRAINT WHILE JUDGING THE CONSTITUTIONAL VA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d has abdicated its essential legislative function as assigned to it by the Constitution or has made an excessive delegation of that power to some other body. (Hamdard Dawakhana v. Union of India.") (emphasis supplied) 32. However, it is to be kept in mind that there is always a presumption in favour of constitutionality of an enactment and the burden to show that there has been a clear transgression of constitutional principles is upon the person who attacks such an enactment. Also, whenever constitutionality of a provision is challenged on the ground that it infringes a fundamental right, the direct and inevitable effect/consequence of the legislation has to be taken into account. The Supreme Court in Namit Sharma vs. Union of India, (supra) has also held as under:- 20. Dealing with the matter of closure of slaughterhouses in Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat [(2008) 5 SCC 33], the Court while noticing its earlier judgment Govt. of A.P. v. P. Laxmi Devi [(2008) 4 SCC 720], introduced a rule for exercise of such jurisdiction by the courts stating that the court should exercise judicial restraint while judging the constitutional validity of the statute or even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake into account. This is not one of those cases where discrimination is writ large on the face of the statute. Discrimination may be possible but is very improbable. And if there is discrimination in actual practice this Court is not powerless. Furthermore, the fact that the Legislature considered that the ordinary procedure is insufficient or ineffective in evicting unauthorised occupants of Government and Corporation property and provided a special speedy procedure therefore is a clear guidance for the authorities charged with the duty of evicting unauthorised occupants. We, therefore, find ourselves unable to agree with the majority in the Northern India Caterers case." (emphasis supplied) BY VIRTUE OF ESTABLISHED PRACTICE/CONVENTION AND NOTIFICATION DATED 27TH OCTOBER, 2011 INVESTIGATION OF OFFENCES UNDER CHAPTER VIII OF FCRA IS CARRIED OUT EITHER BY CBI OR CRIME BRANCH OFFICIALS EXCLUSIVELY DEPENDING UPON THE PECUNIARY VALUE OF ALLEGED VIOLATION AND NOT BY AN OFFICER AUTHORISED BY THE CENTRAL GOVERNMENT UNDER SECTION 23 OF FCRA. THIS CONSISTENT PRACTICE, PRINCIPLE AND/OR POLICY IN THE MATTER OF APPOINTMENT/SELECTION OF AN INVESTIGATIVE AGENCY UNDER SECTION 43 OF FCRA SAVES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as "FCRA") are entirely different and lead to separate conclusions. Under Section 23 of FCRA, 2010, the role assigned to officer or authority is of civil nature and limited only to carrying out book inspection of accounts/records as required and authorized under Chapter V of the FCRA. It is further submitted that the officer is authorized under Section 23 of the FCRA with power of search and seizure etc, however, he/she is not authorized to undertake any investigation into commission of offences under the Act, particularly when the Central Government vide notification dated 27th October, 2011 has already specified such authorities. 3. It is humbly submitted that inquiry/inspection under section 23 generally leads to action under Sections 13 & 14 of the Act, whereas, investigation under Section 43 of the Act leads to criminal action only under Chapter VIII of the Act. 4. It is humbly submitted that since the very inception of the Act and more particularly since the notification dated 2710-2011, all the criminal investigation in relation to commission of offences under the Chapter VIII of the FCR Act, 2010 have been carried out only by the agencies as notified in the above sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the same irregularity or illegality in their favour also on the reasoning that they have been denied the benefits which have been illegally extended to others. (See Chandigarh Admn. v. Jagjit Singh, Gursharan Singh v. NDMC, Faridabad CT Scan Centre v. D.G. Health Services, State of Haryana v. Ram Kumar Mann, State of Bihar v. Kameshwar Prasad Singh and Union of India v. International Trading Co.). 26. A claim on the basis of guarantee of equality, by reference to someone similarly placed, is permissible only when the person similarly placed has been lawfully granted a relief and the person claiming relief is also lawfully entitled for the same. On the other hand, where a benefit was illegally or irregularly extended to someone else, a person who is not extended a similar illegal benefit cannot approach a court for extension of a similar illegal benefit. If such a request is accepted, it would amount to perpetuating the irregularity. When a person is refused a benefit to which he is not entitled, he cannot approach the court and claim that benefit on the ground that someone else has been illegally extended such benefit. If he wants, he can challenge the benefit illegally gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and criminal prosecution under Section 43 FCRA by CBI, 'if found fit'. Accordingly, both the letters under Sections 23 and 43 were issued by the same authority i.e. Government of India, Ministry of Home Affairs, FCRA Wing, Director (FC & MU). Consequently, this Court is of the view that the judgment in Hussein Ghadially Alias M.H.G.A. Shaikh & Ors. Vs. State of Gujarat (supra) relied upon by the Petitioners does not apply to the present cases as the statutory provisions were followed and the inspecting officer as well as investigating authority, both were appointed by the Government of India and 'a delegatee had not subdelegated the investigation to CBI' in the present cases. THE OFFICER AUTHORISED TO CARRY OUT INSPECTION OF RECORDS AND ACCOUNTS UNDER SECTION 23 OF FCRA IN THE PRESENT CASES WAS AUTHORISED AND HAD CARRIED OUT INSPECTION AND ENQUIRY ONLY UNDER CHAPTER V OF FCRA. 42. Further by virtue of authorisation letter dated 07th February, 2017 issued under Section 23 of FCRA, the officer appointed in the present cases had been authorised to exercise power under Sections 23 to 26 and 42 of FCRA only. No power to investigate offences under Section 43 had been conferred upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exual harassment committee report can lead to subsequent investigation by police into allegation of rape or outraging modesty of a woman. 50. Even under FCRA for instance, it is possible that an inspection ordered by Central Government may reveal that foreign funds received by an organisation certified by the Central Government had been used to fund terror activities in the country and in such circumstances, no one can say that investigation under Chapter VIII offences as well as IPC and other terror acts cannot be transferred to specialised agencies like CBI 'midstream'. In fact, the officer appointed by the Central Government under Section 23 of FCRA would neither have the wherewithal nor the expertise to carry out such an investigation. 51. Consequently, to submit that once the Central Government has chosen the route of empowering and authorising a particular officer/authority to conduct inquiry under Sections 23 to 26 and 42 of the FCRA, then it is only that authority which can investigate and file a criminal complaint, if so warranted, is untenable in law. THE ARGUMENT THAT THE POWER OF ARREST HAS BEEN GIVEN TO OFFICERS UNDER CUSTOMS ACT, CENTRAL EXCISE ACT, PMLA ETC. AND N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-cognizable Bailable or non-bailable By what court triable 1 2 3 4 If punishable with death, imprisonment for life, or imprisonment for more than 7 years. Cognizable Non-bailable Court of Session. If punishable with imprisonment for 3 years and upward but not more than 7 years Cognizable Non-bailable Magistrate of the first class. If punishable with imprisonment for less than 3 years or with fine only. Non-cognizable Bailable Any Magistrate. 55. Further not all offences punishable with imprisonment or with fine or both are non-cognizable. For instance, Section 429 IPC which prescribes imprisonment for five years or fine or both is cognizable. The definition of cognizable offence given under Section 2(c) of Cr.P.C. reads as under:- "2. Definitions. In this Code, unless the context otherwise requires,- xxx xxx xxx (c) "cognizable offence" means an offence for which, and "cognizable case" means a case in which, a police officer may, in 812 accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;" 56. The impugned RC 36/2017 has been registered by CBI for of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of FCRA. RC 9/2013 AND RC 36/2017 RELATE TO DIFFERENT OFFENCES AND ARE ENTIRELY DIFFERENT IN SCOPE AS THE PRIMARY ALLEGATION IN RC 9/2013 AND ECIR 10/2017 IS THAT THE CONCESSIONS OBTAINED BY THE EMPOWERED GROUP OF MINISTERS (FOR SHORT 'EGOM') REGARDING SETTING UP OF TRAINING CENTRE FOR US$ 75 MILLION AND CREATION OF MAINTENANCE, REPAIR AND OVERALL FACILITY (FOR SHORT 'MRO') FOR US$ 100 MILLION WERE DELIBERATELY NOT MADE PART OF THE FINAL AGREEMENT SIGNED BY INDIAN AIRLINES WITH AIRBUS INDUSTRIES, WHEREAS THE IMPUGNED RC 36/2017 RELATES TO VIOLATION OF FCRA PROVISIONS AS WELL AS THE OFFENCES COMMITTED UNDER IPC IN THE PROCESS OF COMMITTING VIOLATIONS UNDER FCRA BY THE PETITIONERS. CONSEQUENTLY, THE TWO FIRS CANNOT BE TERMED AS FIRS IN THE COURSE OF THE 'SAME TRANSACTION'. 60. Upon perusal of RC 9/2013, ECIR 10/2017 and RC 36/2017, this Court is of the opinion that while RC 9/2013 and ECIR 10/2017 have been registered in relation to undue pecuniary advantage given to Airbus Industry which has caused corresponding loss to the Government, impugned RC 36/2017 relates to violation of FCRA provisions as well as the offences committed under IPC in the process of committing v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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