Foreign Contribution (Regulation) Act, 1976 – s. 23 r/w. s. 4 – Foreign Contribution (Regulation) Act, 2010 – s. 35 r/w. s.3 – The respondent-petitioner received a sum of Rs. 9,04,84,770/- from eight foreign entities – FIR was filed by the appellant-CBI alleging violation of provisions under FCRA, 1976 u/s. 23 r/w. s.4 – Additional CMM took cognizance u/s. 35 r/w. s. 3 of the Act, 2010 – Appellant filed revision on the ground that when offence was committed, the FCRA, 1976 was in force – The Revisional court held that Additional CMM committed ‘jurisdictional error’, thereby providing that cognizance was deemed to have been taken u/s. 23 r/w. s.4 of Act, 1976 – Thereafter, respondent sought quashing of the FIR, chargesheet and further consequential order on the ground that the amount which he had received was a gift from his father – Respondent also alleged that Revisional Court had passed the order without issuing notice to him – High Court quashed the FIR with all proceedings emanating thereto – On appeal, held: The High Court proceeded on the premise that the appellant had admitted the receipt of foreign contribution from his father – However, the case of appellant was that foreign contributions were received by the respondent from different entities in the foreign country, without the permission from the Government – There was a serious factual dispute – The High Court recorded findings on several disputed facts – Defence of the accused is to be tested after appreciating the evidence during the trial – The High Court made the wrong assessment at the stage, when the matter was taken cognizance by the Competent Court – Insofar, the order passed by the Revisional authority is concerned, the same is quashed and remitted to the Revisional Court for fresh consideration after issuing notice to the respondent – Thus, the impugned order of the High Court set aside.
Allowing the appeal, the Court
HELD : 1. This Court is of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant-C.B.I., and the defence put-forth by the respondent, leads to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C. [Para 19] [477-F-H]
2. The assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Court, is completely incorrect and uncalled for. [Para 20] [478-A]
3. From a reading of the impugned order, it appears that the High Court has proceeded on the premise that the appellant has admitted the receipt of foreign contribution from his father, who is an Indian passport holder. In fact, it is not so. It is a case of the appellant-CBI, that the foreign contributions were received by the respondent from different entities in the foreign country, without permission from the Government. On the other hand, the case of the respondent, in defence, is that he has received such funds from his father. The High Court has taken into consideration the statement, alleged to have been made by respondent’s father on 11.07.2006 and one of the statements given on behalf of one of the entities by the name ‘New Heaven Nominees’. It is a defence of the respondent that the foreign entities which have sent the funds to the respondent are from available funds, standing to the credit of respondent’s father. [Para 21] [478-B-D]
4. The correctness of the defence whether such amounts were received by the respondent from his father or not is a serious factual dispute. It is not an admitted position, as recorded by the High Court. The correctness of the defence of the respondent is to be gone into only after appreciating the evidence during the trial. Merely, by referring to statements alleged to have been made by father of the respondent and also on behalf of one of the entities i.e New Heaven Nominees’, the High Court has committed an error in recording a finding in favour of the respondent. The High Court also committed an error in observing that, even otherwise, there is material to show that funds were indeed a gift from father of the respondent and the prosecution has neither disputed the said fact as false nor alleged that the funds in question did not belong to the father of the respondent. The said observation made by the High Court is also contrary to the record. [Para 22] [478-E-F]
5. So far as the order passed by the Revisional Authority is concerned, if any adverse order is passed by the Revisional Court, without issuing notice to the respondent, it is open to the High Court to set aside the order and remit the matter back for fresh consideration but, at the same time, it is not open to allow the Revision in its entirety. [Para 25] [479-C]
Ahmedabad Urban Development Authority v. Manilal Gordhandas and Ors. (1996) 11 SCC 482 : [1996] 6 Suppl. SCR 79 ; Mohit Alias Sonu and Anr. v. State of Uttar Pradesh and Anr. (2013) 7 SCC 789 : [2013] 7 SCR 86 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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