TMI Blog2015 (12) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... Investigating and prosecuting the petitioner for an offence for lack of prior permission from the Central Government as per Section 8 (e) FCRA, 1976, has now a complete exemption under Section 4 (e) FCRA, 2010 Act and continuation of the same would amount to an action taken under the FCRA, 1976 which is now rendered “inconsistent with the provisions of this Act” contained in Section 54 FCRA, 2010. Thus, it amount to removing such action from the ambit of protective saving provided by Section 54 FCRA, 2010. The prosecution has relied upon Section 6 (d) and (e) of General Clauses Act, 1897 and contended that the repeal shall not affect offences, investigations, legal proceedings which were commenced under the FCRA, 1976. prosecution had no right of revision against order dated 05.07.2011 passed by learned Trial Court being an interlocutory order and hence order dated 20.08.2011 passed by learned Additional Sessions Judge which is impugned in Criminal M.C. No.3342/2011 is without jurisdiction and a nullity. Moreover, in terms of Sections 397, 399 and 401(2) Cr. P.C., no order can be passed in exercise of revisionary jurisdiction without notice to the accused person, as was don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, I hereby quash the FIR mentioned above with all proceedings emanating thereto with liberty to the Central Government to compound the case of the petitioner under Section 41(1) FCRA, 2010. - Decided in favour of appellant. - CRL.M.C. No. 2784/2011 & Crl. M.A. Nos. 10129/2011 and 6144/2012 - - - Dated:- 30-11-2015 - MR. SURESH KAIT, J. For The Petitioner : Mr. Arvind Nigam and Mr. Atul Nanda, Senior Advocates with Ms. Rameeza Hakeem, Mr. Sandeep Kapoor, Ms. Apoorva Pandey and Mr. Rajat Brar, Advocates. For The Respondent : Mr. Narender Mann, Special Public Prosecutor with Mr. Manoj Pant and Ms. Utkarsha Kohli, Advocates. JUDGMENT SURESH KAIT, J. 1. Vide Crl. M.C. No.2784/2011, the petitioner seeks quashing of FIR bearing No.RC-AC-1-2007-A-0003 dated 02.04.2007, chargesheet dated 13.12.2010 and the order dated 05.07.2011 passed by the learned Additional Chief Metropolitan Magistrate-01 (ACMM), Patiala House Courts, New Delhi, whereby cognizance under Section 35 read with Section 3 of the Foreign Contribution (Regulation) Act, 2010 (hereinafter shall be called FCRA, 2010) was taken and summons were issued against the petitioner. 2. Vide Crl. M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further stated that similar gifts or funds were also given to the petitioner s siblings, namely, Mr. Aditya Khanna, Mr. Naveen Khanna and Ms. Vineeta Singh by Mr. Vipin Khanna. The statement dated 10.08.2007 made by CI Law Trust, corroborated the fact that funds sent to the petitioner were paid by way of gifts from funds standing to the credit of Mr. Vipin Khanna and stated that similar gifts or funds were given by father of the petitioner to other siblings mentioned above. 6. Learned senior counsel further submitted that the similar income received by the petitioner from the same CI Law Trust (formerly known as West Way) had been treated as a gift from the father of the petitioner by the Income Tax Authorities vide order dated 11.12.2010 passed by the Commissioner of Income Tax (Appeals) in proceedings under Section 147 of the Income Tax Act, 1961. The said order stands confirmed by the order dated 15.04.2014 passed by the Income Tax Appellate Tribunal in ITA Nos.1915 to 1917/DEL/2010. 7. Learned senior counsel further submitted that CBI had filed an application for issuance of Letters Rogatory (LRs), which was allowed by the learned ACMM vide order dated 10.12.2007 for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RA, 1976, stood repealed and replaced by FCRA, 2010, with effect from 01.05.2011. Section 4 FCRA, 2010, now removes the requirement of prior permission from the Central Government. Accordingly, the petitioner is completely exempted from any charge under Section 3 FCRA, 2010, as no prior permission is required. Moreover, Section 41 FCRA, 2010, now made such offences as compoundable. 12. Learned senior counsel further submitted that the learned ACMM vide order dated 05.07.2011 proceeded to take cognizance of offence under Section 35 read with Section 3 FCRA, 2010, and accordingly, issued summons against the petitioner. The above order dated 05.07.2011 was challenged by the CBI itself before the learned Revisional Court by way of Criminal Revision No. 02/2011, which was allowed vide order dated 20.08.2011 directing deemed cognizance under FCRA, 1976, however, no notice was issued to the petitioner of those proceedings. In such an eventuality, since the petitioner was only aware of the summoning order dated 05.07.2011, he preferred Crl. M.C. No.2784/2011 seeking quashing of the FIR, chargesheet as well as order dated 05.07.2011 whereby the learned ACMM had taken cognizance of offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt 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. 16. Mr. Nigam further submitted that without prejudice to the proposition mentioned above, assuming applicability of some legislation, since Section 4 (e) FCRA, 2010, provides a complete exemption when such funds are received from a relative, (without the need for any prior permission), provisions of FCRA, 1976, would not be applicable in this case and the provisions of FCRA, 2010, would be applied. Therefore, the prosecution against the petitioner can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1)(a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and common sense. This finds support in the following passage from Craies on Statute Law, 7th edn. at pp. 338-89: .it is a good general rule that a law should have no retrospect, but in cases in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement : as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed . 23. To illustrate, if Parliament were to re-enact Section 302 of the Indian Penal Code, 1860 and provide that the punishment for an offence of murder shall be sentence for imprisonment for life, instead of the present sentence of death or imprisonment for life, then it cannot be that the Courts would still award a sentence of death even in pending cases. 24. ..who delivered a majority opinion, concluded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. Learned senior counsel submitted that even otherwise, there is material to show that the funds were indeed a gift from the father of the petitioner. The prosecution has neither disproved this fact as false nor alleged as a matter of certainty that the funds in question did not belong to the father of the petitioner. Moreover, the prosecution had sent LRs to ascertain the authenticity of documents; however, no documents have been received by the prosecution in execution of such LRs which shows that the above documents are falsified in any manner. In addition, the order dated 11.12.2010 passed by the Commissioner of Income Tax (Appeals) and thereafter confirmed by the Income Tax Appellate Tribunal vide order dated 25.04.2014 have become final, which cannot be disputed by the prosecution. 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 prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which prohibits the cognizance by the ld. Trial Court without such a sanction order, no cognizance could have been taken either by the Trial Court under the 2010 Act or by ld. Sessions Court under the 1976 Act. 27. Ld. Sr. Counsel further submitted that the prosecution is incorrect in contending that the 1976 Act would apply to the petitioner as the offence was committed during the currency of the said Act and all offences committed under 1976 Act are saved and are to be dealt with under the FCRA, 1976 by an operation of Section 54 FCRA, 2010 and Section 6 of the General Clauses Act, 1897. Section 54 (2)(a) FCRA, 2010, saves anything done or action taken under the old FCRA, 1976. This contemplates acts and actions done validly and legally under the Act, i.e., orders, rules and notifications etc. 28. To strengthen his arguments ld. Counsel has relied upon a case of State of Punjab v. Mohar Singh Pratap Singh, AIR 1955 SC 84, wherein held as under: 9 We agree with the High Court that the expression anything done occurring in the Section does not mean or include an act done by a person in contravention with the provisions of the Ordinance. What the section cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. This being so, application of Section 6 of the General Clauses Act, 1897 is ruled out and the application of FCRA, 1976 would stand repealed to the facts of the petitioner s case. 31. In the alternative, learned senior counsel submitted that even if provisions of Section 6 of the General Clauses Act, 1897, were to be treated as being applicable, Section 6(d) only saves as penalty, for the forfeiture or punishment incurred in respect of any offence committed. 32. Similarly, in Section 6(e) of the aforesaid Act, it is not every investigation or legal proceedings which is saved rather investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid. A combined reading of Section 6(d) (e) of the said Act shows that it is not the commission or the prosecution simpliciter of the offence which is saved but what is saved is restricted to (i) penalty, forfeiture or punishment incurred in respect of any offence committed, and (ii) investigation, legal proceeding or remedy in respect of such incurred liability penalty, forfeiture or punishment. 33. Learned senior counsel submitted that the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the complainant's counsel. 15. Mr. Tiger Singh, learned counsel for respondent Smt. Kaushlya Devi submitted at the bar that as the revision petition was directed against the order of dismissal of the complaint, no notice was sent to the petitioner herein who had been named as an accused. According to him in such like revision petitions the Sessions Courts do not issue notice and only the counsel for the petitioner or the Public Prosecutor is heard while deciding them. 16. This practice of not sending notice of the revision petition to the person who is likely to be prejudiced by any order to be passed by the Court is not in accordance with law. It appears to me that the amended provision of sub section (2) of Section 401 of the Criminal P.C. 1973, was not brought to the notice of the learned Additional Sessions Judge. The said sub section reads as follows: (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence . (emphasis added): Under Section 399 of the Code a Sessions Judge exercises the same powers as the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(2) of the Code, the accused mentioned in the first information report get the right of hearing before the Revisional Court although the impugned order therein was passed without their participation. The appellant who is an accused person cannot be deprived of hearing on the face of the express provision contained in Section 401(2) of the Code and on this ground/ the impugned order of the High Court is liable to be set aside and the matter has to be remitted . 37. In Raghu Raj Singh Rousha Vs. Shivam Sundaram Promoters (P) L Anr., (2009) 2 SCC 363, the Hon'ble Supreme Court held as under: 12. Section 397 of the Code empowers the. High Court to call for records of the case to exercise its power of revision in order to satisfy itself as regards correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court. Sub-section (2) of Section 397 of the Code, however, prohibits exercise of such power in relation to any interlocutory order passed in any proceeding. 13. Whereas Section 399 of the Code deals with the ' Sessions Judge's power of revision, Section 401 thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Code for review of an order by the same court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order........ xxxx xxxx xxxx 17. As observed by us in Adalat Prasad s case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case . 40. This Court in Bhiku Ram Jain etc. Vs. Municipal Corporation of Delhi Ors. ILR (1977) 1 Del 517, held as under:- 12. The Code does not defined what is a 'final order' or an 'interlocutory order'. This aspect has been considered in a chain of authorities and it is now well-settled that an order which does not decide any matter in issue or put an end to the litigation between the parties cannot be said to be final order. In other words, an order which does not bind and affect the rights of the parties of its own force is not deprived of its interlocutory character. Framing of a charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ists a prima facie case on the assumption that what is stated can be true and that at that stage the grounds indicate the need for proceeding further in the matter in order to discover the truth after a full and proper investigation. 21. We are in respectful agreement with the above view, the same is in consonance with the judicial consensus on the question under consideration . 41. Learned senior counsel submitted that learned Trial Court while taking cognizance had not applied its judicial mind and as such non application of mind vitiates the order of summoning. The Magistrate is mandated to apply his judicial mind to the facts of the case at the time of issuing process / summons and such application of judicial mind must be reflective from the order passed. 42. In Devendra Ors. Vs. State of U.P. Anr., (2009) 7 SCC 495, the Apex Court held:- 28. Furthermore, in a case of this nature where even, according to Mr.Das, no case has been made out for taking cognizance of an offence under Section 420 of the Penal Code, it was obligatory on the part of the learned Chief Judicial Magistrate to apply his mind to the contents of the charge-sheet. Such application of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es by the petitioner, the then MLA from Punjab, in his saving account from eight overseas companies without obtaining prior permission of the Central Government or intimation. 47. He further submitted that as per Section 2(1)(c) FCRA, 1976, if the origin of the currency which has been remitted lies in a foreign source, it amounts to foreign contribution and is an offence. Once it is proved that the remittance has been received from a foreign source, it amounts to foreign contribution and is an offence. It is further submitted that once it is proved that the remittance has been received from a foreign source, the Court is under an obligation to presume that it is a foreign contribution as contemplated in Section 2 (1)(c) FCRA, 1976, and further fortified by the explanation to the said provision. The foreign source(s) (eight entities/companies are registered in Untied Kingdom) had transferred the foreign currency through their Bankers to the account of petitioner maintained by him with his Bank, i.e., Standard Chartered Bank, and such transfer amounts to transfer/delivery of currency by a foreign source as contemplated under the foreign contribution. 48. Mr. Mann submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to his credit with these eight entities in United Kingdom. Though investigation pertaining to 30 transactions was carried out but during the course of the investigation the documents pertaining to 24 transactions were received as part of the execution report and a charge sheet was filed before the learned Trial Court with regard to the 24 transactions only. The plea of the petitioner that these remittances were sent as gift was not found tenable during the course of the investigation because the remittances have emanated from the accounts of entities which are registered/incorporated in U.K. and thus are within the meaning of foreign source . As per the explanation to Section 2(1)(c) FCRA, 1976, if the transfer of currency is received from a foreign source, it shall be deemed to be a foreign contribution. 52. Further submitted that during the verification of these remittances, LRs was issued and part execution report of LR's was received from United Kindom. This part execution report contains a letter dated 03.02.2010 enclosed with a file containing details of 24 remittances and these documents relate to instructions given by the remitting entity (C I Law Trust, Tiffany ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e signatures of the authorized signatory. Even there are no marks of identification/stamp or certificate on the basic documents, which may suggest that this was the document which was attested by the Notary Public. 55. Learned counsel for the CBI submitted that when the instructions of the remitting party (Foreign Source) to its Bankers are clear from the documents that the remittance is for a specific purpose, i.e., TSL Budget requirement etc. and the petitioner has used the remitted amount as per the directions/reference, now the petitioner cannot be allowed to take a contrary plea that it was a gift from his father. It is submitted that when language used in a document is plain and unambiguous and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. 56. The charge sheet in the case was filed much before the FCRA, 2010, came into force, i.e., on 01.05.2011 and the Revisional Court rightly hold that cognizance and summoning of the petitioner deemed to have been taken under Section 3 r/w Section 24 FCRA, 1976. Benefit of Section 41 FCRA, 2010, is not available to the petitioner as the same is availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion period because of several reasons; systemic or otherwise. It cannot be the intention of the legislature to throw a diligent complainant out of the court in this manner. Besides it must be noted that the complainant approaches the court for redressal of his grievance. He wants action to be taken against the perpetrators of crime. The courts functioning under the criminal justice system are created for this purpose. It would be unreasonable to take a view that delay caused by the court in taking cognizance of a case would deny justice to a diligent complainant. Such an interpretation of Section 468 of the Code of Criminal Procedure would be unsustainable and would render it unconstitutional. It is well settled that a court of law would interpret a provision which would help sustaining the validity of the law by applying the doctrine of reasonable construction rather than applying a doctrine which would make the provision unsustainable and ultra vires the Constitution. (U.P. Power Corporation Ltd. v. Ayodhaya Prasad Mishra). xxxx xxxx xxxx 39. As we have already noted in reaching this conclusion, light can be drawn from legal maxims. Legal maxims are referred to in Bhara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntities through whom such funds were sent were holding the same on behalf of his father. To this effect, Mr. Vipin Khanna made a statement dated 11.07.2006, whereby stated that these funds were sent on his instructions to the petitioner. Moreover, vide statement dated 13.04.2007, New Heaven Nominees stated that the funds sent to the petitioner by way of gifts were from funds standing to the credit of petitioner s father with them. Moreover, similar gifts or funds were also given to the petitioner s siblings, namely, Mr. Aditya Khanna, Mr. Naveen Khanna and Ms. Vineeta Singh by Mr. Vipin Khanna, i.e., their father. The statement dated 10.08.2007 made by CI Law Trust, corroborated that funds sent to the petitioner were paid by way of gifts from funds standing to the credit of Mr. Vipin Khanna and further stated that similar gifts or funds were given to other siblings mentioned above by father of the petitioner. 61. It is pertinent to mention that the Income Tax Authorities vide order dated 11.12.2010 passed by the Commissioner of Income Tax (Appeals) in proceedings under Section 147 of the Income Tax Act, 1961, that similar income received by the petitioner from the same CI Law T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity and principle that when a later statute again describes an offence created by an earlier statute and imposes a different punishment, or varies the procedure, the earlier statute is repealed by implication. Michell v. Brown [1959] 120 E.R. 909. Lord Cambell put the matter thus: It is well settled rule of construction that, if a later statute again describes an offence created by a former statute and affixes a different punishment, varying the procedure, the earlier statute is repealed by the later statute See also Smith v. Benabo [1937] 1 All. E.R. 523. In Regina v. Youle (1861) 158 E.R. 311 Martin, B. said in the oft-quoted passage: If a statute deals with a particular class of offences, and a subsequent Act is passed which deals with precisely the same offences, and a different punishment is imposed by the later Act, I think that, in effect, the legislature has declared that the new Act shall be substituted for the earlier Act. 68. In State through CBI, Delhi Vs. Gian Singh (1999) 9 SCC 312, the Apex Court held as under: 30. ..In TADA Act 1985 (during the subsistence of which the offence in this case was committed) the extreme penalty, witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll get benefit thereof. 70. Section 4(e) completely excludes from the operation of FCRA, 2010, if any foreign contribution received from a relative. This being the position, receipt of such funds by the petitioner from his father, would neither be a violation under the law nor the subject matter of prosecution. 71. Even otherwise, there is material to show that the funds were indeed a gift from the father of the petitioner. The prosecution has neither disproved this fact as false nor alleged as a matter of certainty that the funds in question did not belong to the father of the petitioner. Moreover, the prosecution had sent LRs to ascertain the authenticity of documents; however, no documents have been received by the prosecution in execution of such LRs which shows that the above documents are falsified in any manner. 72. In its reply to the petitioner s two petitions, the prosecution has denied that the funds were received by the petitioner from his father instead contended that the funds were transmitted to the petitioner with specific instructions stated therein such as TSL budget requirement etc. and other like instructions pertaining to companies owned and controll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under:- 7 The next limb of argument put forward by the learned counsel for the respondent is that since the complaint was dismissed and the petitioners were never summoned by the Magistrate, hence the learned Additional Sessions Judge while disposing of the revision petition against the impugned order passed by the learned Magistrate was under no obligation to call them and to hear them. Therefore, according to him, there is no illegality and invalidity in the course adopted by the learned Additional Sessions Judge. xxxx xxxx xxxx 9. Section 399 of the Code of Criminal Procedure deals with the powers of revisions of a Court of Sessions. Hence the provisions of the said section can be adverted to with profit. It is in the following words. In the case of any proceeding the record of which has been called for by himself, the Sessions Judge may exercise all or any of the powers which may be exercised by the High Court under Sub-section (1) of Section 401. Where any proceeding by way, of revision is commenced before a Sessions Judge under sub-section{l), the provisions of subsections(2), (3),(4) and (5) of Section 401 shall, so far as may be, apply to such proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FCRA, 1976, are not made out as foreign source , as defined under Section 2 (1) (e) FCRA, 1976, or the offence under Section 4 of the 1976 Act has attended by the prosecution. The prosecution has alleged violation of Section 4 read with Section 23 FCRA, 1976, by the petitioner. In order to do so, the prosecution has failed to contend that the petitioner has received all foreign contribution within the meaning of Section 2 (1) (c) FCRA, 1976, from a foreign source. However, such foreign source has been defined separately and categorically under Section 2 (1) (e) FCRA, 1976. 78. In order to make out violation of Section 4 FCRA, 1976, the charge sheet must state as to from which of the foreign sources as set out in Section 2 (1) (c) FCRA, 1976, or like foreign source, the petitioner received such foreign contribution. However, the prosecution has failed to do so. 79. A bare reading of charge sheet, specially para (16.4) (16.5) shows that the prosecution merely states that the petitioner has received funds from overseas firms/companies/trusts which are not registered/incorporated anywhere in India, without specifically finding the nature of foreign sources in order to bring th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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