IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS AT PANAJI, GOA. (Presiding Judge: Mr. Bosco G. F. Roberts, Judicial Magistrate First Class, Panaji, Goa.) Crim. Misc. Appln. No.376/2013/C With Crim. Misc. Appln. No.377/2013/C Shri. Kashinath Shetye, Major, occupation service, Resident of Ground Floor, A 102, Raj Excellency, Patto, Ribandar, Tiswadi, Goa. … Applicant Applicant present in person at the time of arguments and Learned Advocate Shri. Atish P. Mandrekar, present at the time of Order. Learned Advocate Shri. G. D. Kirtani representing the Police Inspector of Panaji Police Station, present at the time of arguments and at the time of Order. COMMON ORDER (Delivered on this, the 14th day of the month March, of the year 2014.) 1) This brief Order shall dispose the objections filed by the Police Inspector, Panaji Police Station, styled as an application, at - 2 - exhibit 2, essentially praying for time to register the FIR as directed by Order dated 15.01.2014, contending, inter alia, that he was not empowered under the Foreign Contribution (Regulation) Act, 2010 (“FCRA” for brevity’s sake) to investigate offences committed thereunder and therefore, could not register the FIR as directed. This Order shall also clarify the earlier Order passed below exhibit 1 directing the Police Inspector of Panaji Police Station to register a FIR against the concerned political parties and investigate the matter within 7 days of receiving the said Order dated 15.01.2014 and to report compliance. 2) The crux of the Applicant’s applications under section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code” for short) is that the two leading political parties of our country, namely the Bharatiya Janata Party (BJP) and the Indian National Congress (INC) have received political funding from foreign sources and from Public Sector Undertakings (PSUs) in contravention of the provisions of the FCRA, the Representation of Peoples Act, 1951 and various provisions of the Indian Penal Code. Hence, it was prayed that the Police Inspector, Panaji be directed to register an FIR and to conduct a fair and reasonable investigation against all the persons about whom suspicion is raised, to transfer the FIR to the concerned Police Station having jurisdiction, if required, to call for records of the concerned persons, to monitor the investigations by directing the Police Inspector to expedite the same and to file periodic progress reports. 3) The Applicant has relied upon various documents in support of his application starting with his complaint dated 08.12.2013 addressed to the Police Inspector, Panaji Police Station, the Deputy Superintendent of Police, Panaji, the Superintendent of Police, North Goa, the Police Inspector (CBI) and the Superintendent of Police (CBI), letter dated 28.09.2012 of the Election Commission of India to the Secretary of the Government of India, Ministry of Home Affairs regarding the contributions received by political from foreign sources, - 3 - letters dated 18.10.2012 of the Ministry of Home Affairs to the Treasurers of the BJP and INC and replies thereto alongwith list of contributors, letters of the Vedanta Group of Companies and Honda Siel Cars India Ltd., to the Treasurer of INC and excerpts from the web site of Vedanta Resources Plc. and Annual Report 2012 4) It is the case of the Applicant that Vedanta Resources Plc is a foreign company registered under the Companies Act, 1985 and registered in England and Wales with Head Office at 16, Berkeley Street, London. It’s principal members of the consolidated group, as per it’s own web site and annual report 2012 include, inter alia, Sterlite Industries (India) Ltd., in which, by it’s own admission, Vedanta Resources plc has an effective interest of 60.8% of the issued capital and has management control and Sesa Goa Ltd. of which Vedanta Resources Plc owns 55.1%. 5) The Applicant drew my attention to sections 2 (g) and (j) which define the terms “foreign company” and “foreign source” respectively as under: “(g) ‘foreign company’ means any company or association or body of individuals incorporated outside India and includes: (i) a foreign company within the meaning of section 591 of the Companies Act, 1956, (ii) a company which is a subsidiary of a foreign company (iii) the registered office or principal place of business of a foreign company referred to in sub-clause (i) or company referred to in sub-clause (ii) (iv) a multinational corporation Explanation - for the purpose of this sub-clause, a corporation incorporated in a foreign country or territory shall be deemed to be a multi-national corporation if such corporation, - (a) has a subsidiary or a branch or a place of business in two or more countries; or (b) carries on business, or otherwise operates, in two or more countries or territories.” “(j) ‘foreign source’ includes, - (i) the Government of any foreign country or territory and any agency of such Government; (ii) any international agency, not being the United - 4 - Nations or any of it’s specialised agencies, the World Bank, International Monetary Fund or such other agency as the Central Government may, by notification, specify in this behalf; (iii) a foreign company (iv) a corporation, not being a foreign company, incorporated in a foreign country or territory; (v) a multi-national corporation referred to in subclause (iv) of clause (g) (vi) a company within the meaning of the Companies Act, 1956 and more than one half of the nominal value of it’s share capital is held, either singly or in the aggregate, by one or more of the following, namely: - a. the Government of a foreign country or territory; b. the citizens of a foreign country or territory; c. corporations incorporated in a foreign country or territory; d. trusts, societies or other associations of individuals (whether incorporated or not), formed of registered in a foreign country or territory; e. foreign company (vii) a trade union in a foreign country or territory, whether or not registered in such foreign country or territory; (viii) a foreign trust or a foreign foundation, by whatever name called, or such trust or foundation mainly financed by a foreign country or territory; (ix) a society, club or other associations of individuals formed or registered outside India; (x) a citizen of a foreign country.” 6) The Applicant also submitted that as per section 3(1) (e) no political party or office bearer thereof shall accept foreign contribution. He submitted that as per Vedanta’s own Annual Report of 2012, the group made political donations in India of over US$2 million either through a trust of directly in respect of the Indian General Elections. He then cross referenced the returns forwarded by the BJP’s Office Incharge, Shyam Jaju to the Chief Election Commissioner and the INC’s Treasurer Motilal Vora, both of which show contributions made by Sterlite Industries India Ltd., Sesa Goa Ltd. the Madras Aluminium Company Ltd. another subsidiary of Vedanta Resources plc. and Sesa Goa Ltd., to the BJP while Sesa Goa Limited and PSUs, STC of India Ltd., and MMTC Ltd. made contributions to the INC. - 5 - 7) It is also alleged that the present Finance Minister Shri. P. Chidambaram, of the INC was formerly a Director till May, 2004 in Vedanta Resources plc and that after assuming office, income tax exemptions are being given as quid pro quo for the illegal donations made by the said group to the INC. 8) The Applicant also relied upon section 29B of the Representation of Peoples Act, 1951 which reads as under: “Section 29B. Political parties entitled to accept contribution.—Subject to the provisions of the Companies Act, 1956, every political party may accept any amount of contribution voluntarily offered to it by any person or company other than a Government company: Provided that no political party shall be eligible to accept any contribution from any foreign source defined under clause (e) of section 2 of the Foreign Contribution (Regulation) Act, 1976 (49 of 1976).” 9) The FCRA, 1976 is presently repealed by section 54 of the FCRA, 2010, however, section 2(h) of the new Act clearly defines what constitutes a foreign contribution. 10) The Applicant pointed out that as per the letter of the Election Commission of India, to both the BJP and the INC, complaints were made to it regarding contributions received from foreign sources. In reply, both the Parties furnished list of their contributors with the INC annexing letters received from the Vedanta group companies namely, Sesa Goa and Sterlite Industries stating that they had complied with the provisions of section 293A of the Companies Act, 1956. 11) I find that perusal of section 293A of the Companies Act, 1956 has nothing to do with foreign contributions at all: “Section 293A- Prohibitions and Restrictions Regarding Political Contributions: (1) Notwithstanding anything contained in any other provision of this Act, - (a) no Government company; and - 6 - (b) no other company which has been in existence for less than three financial years, shall contribute any amount or amounts, directly or indirectly, - (i) to any political party ; or (ii) for any political purpose to any person. (2) A company, not being a company referred to in clause (a) or clause (b) of sub-section (1), may contribute any amount or amounts, directly or indirectly, - (a) to any political party ; or (b) for any political purpose to any person : Provided that the amount or, as the case may be, the aggregate of the amounts which may be so contributed by a company in any financial year shall not exceed five per cent of its average net profits determined in accordance with the provisions of sections 349 and 350 during the three immediately preceding financial years. Explanation. - Where a portion of a financial year of the company falls before the commencement of the Companies (Amendment) Act, 1985, and a portion falls after such commencement, the latter portion shall be deemed to be a financial year within the meaning and for the purposes, of this sub-section : Provided further that no such contribution shall be made by a company unless a resolution authorising the making of such contribution is passed at a meeting of the Board of directors and such resolution shall, subject to the other provisions of this section, be deemed to be justification in law for the making and the acceptance of the contribution authorised by it. (3) Without prejudice to the generality of the provisions of sub-sections (1) and (2), - (a) a donation or subscription or payment caused to be given by a company on its behalf or on its account to a person who, to its knowledge, is carrying on any activity which, at the time at which such donation or subscription or payment was given or made, can reasonably be regarded as likely to effect public support for a political party shall also be deemed to be contribution of the amount of such donation, subscription or payment to such person for a political purpose ; (b) the amount of expenditure incurred, directly or indirectly, by a company on advertisement in any publication (being a publication in the nature of a souvenir, brochure, tract, pamphlet or the like) by or on behalf of a political party or for its advantage shall also be deemed, - (i) where such publication is by or on behalf of a political party, to be a contribution of such amount to such political party, and (ii) where such publication is not by or on behalf of but for the advantage of a political party, to be a contribution for a political purpose to the person publishing it. - 7 - (4) Every company shall disclose in its profit and loss account any amount or amounts contributed by it to any political party or for any political purpose to any person during the financial year to which that account relates, giving particulars of the total amount contributed and the name of the party or person to which or to whom such amount has been contributed. (5) If a company makes any contribution in contravention of the provisions of this section, - (a) the company shall be punishable with fine which may extend to three times the amount so contributed ; and (b) every officer of the company who is in default shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.” 12) As such, I find that the statement in Sesa Goa’s and Sterlite Industries Letters dated 07.08.2012 and 29.03.2010 respectively, certifying that they had complied with the conditions laid down under section 293A of the Companies Act, 1956 are of no consequence in this application regarding foreign contributions. 13) The objection/application of the Police Inspector, Panaji seems to draw inspiration from a letter dated 22.11.2012 from Sesa Goa Ltd. to the Treasurer of INC claiming that Sesa Goa Ltd., incorporated in India under the Companies Act, 1956 but admitting at the same time that it is a Vedanta Group Company. It is claimed that the provisions of FCRA are not attracted to the political fundings done by Sesa Goa Ltd., because Sesa Goa is not a foreign company because it satisfies the test of section 591 of the Companies Act, 1956 i.e. when 50% or more of it’s paid up capital is held by an Indian citizen, the foreign company is treated as if it was incorporated in India. It is also claimed that the parent company of Sesa Goa which is incorporated outside India is ultimately held by Mr. Anil Agarwal who is an Indian citizen. It it’s said letter dated 22.11.2012, Sesa Goa Ltd. has relied upon a Legal Opinion dated 19.11.2012 given by Justice A. S. Anand (Retd. Chief Justice of India) 14) With great respect and utmost humility to Justice Anand’s Legal Opinion, I find that there is no doubt that Vedanta Resources plc - 8 - is a foreign company as defined by section 2(1) (g) of FCRA. As noted above, more than 50% of the shares of Sesa Goa Ltd., are held by Foreign Individuals or NRIs, a fact can be verified from it’s web site sesasterlite/media/44593/2013.06.30_sgl_shareholdi ng.pdf. 15) Hence, I find that the objection/application of the Police Inspector, Panaji claiming “the very premise of the order that Sesa Goa Ltd. is a subsidiary of Vidanta Resources TLC is a misnomer in as much as, there is no concept of subsidiary either the FCRA Act or under the companies Act,” is based upon unsound advice or ignorance of the law or by turning a blind eye to the facts and admissions of Vedanta Resources plc and Sesa Goa Ltd. 16) I also find that there is no material on the basis of which the Police Inspector, Panaji has founded his claim that Mr. Anil Agarwal is an Indian citizen, other than the letter dated 22.11.2012 of Sesa Goa Ltd., to the Treasurer of INC. At the cost of repetition, Vedanta’s own web site states that more than 50% of Sesa Goa’s shares are held by Foreign Individuals or NRIs. Under such circumstances, I find that the contributions of Sesa Goa to the BJP and the INC clearly fall under the definition of contributions made by a foreign company to a political party and thus, from a foreign source and in violation of section 29B of the Representation of Peoples Act, 1951. 17) Mr. Kirtani appearing for the Police Inspector, Panaji opened his arguments by drawing my attention first to the preamble of the FCRA which is aimed at regulating the acceptance of foreign contribution or foreign hospitality etc., for any activities detrimental to national interest. He then took me thorugh the various provisions of the Act, to explain that the scheme of the Act suggests that powers are conferred upon the Central Government to prohibit receipt of foreign contributions etc., under section 9 thereof. Similarly, the other provisions of the Act indicate that it is the Central Government which is empowered to register persons entitled to accept foreign contributions. - 9 - 18) Most importantly, as per Advocate Kirtani, the Central Government, by general or special order, may authorize a gazetted officer of Group A post under the Central Government or such other officer authority or organisation, referred to in section 23 of the Act, as an inspecting officer to inspect accounts etc. of any political party, person organisation or association which accept foreign contributions in violation of the provisions of the Act. Similarly, the powers of seizure of any article or currency etc. under section 25 have been conferred on the officer appointed under section 23 by the Central Government. 19) Shri. Kirtani then read section 43 of the Act in harmony with section 23 to submit that the inspecting officer appointed by the Central Government under section 23 is conferred with powers of an Officer incharge of a Police Station to investigate into cases of violations of the provisions of this Act and therefore, the Police Inspector, Panaji is not empowered to investigate. He concluded that, since the Police Inspector, Panaji has no power to investigate, he cannot register an FIR as directed. 20) Shri. Kirtani relied upon Delhi Administration v/s Ram Singh AIR 1962 SC 63, where the Honourable Court while dealing with a matter under the Suppression of Immoral Traffic in Women and Girls Act, 1956 observed that the said Act was a complete Code in itself with respect with what is to be done under it. It was further observed that the entire police duties under the said Act were to be done by a Special Police Officer and that only the special police officer and his assistants were the competent persons to investigate under the Act and that police officers not specially appointed as special police officers cannot investigate the offences under the Act, even though they are cognizable offences. 21) Advocate Kirtani also placed reliance Guruduth Prabhu v/s M. S. Krishna Bhat 1999 Cr. L. J. 3909, wherein a Division Bench of the Karnataka High Court had cautioned that it is mandatory for the Magistrate to apply his mind to the allegations made in the complaint - 10 - and in only cases which disclose an offence, the Magistrate gets jurisdiction to order an investigation by the police if he does not take cognizance of the offence. When the allegations made in the compliant do not disclose cognizable offence, the Magistrate has no jurisdiction to order police investigation under sub-section (3). 22) I find that this case law is not applicable to the facts of this case since, there is a cognisable offence made out, it is only the case of the Police Inspector, Panaji that he has no power to investigate the same. 23) I also find that Jamiruddin Ansari v/s CBI AIR 2009 SC 2781 relied upon by Shri. Kirtani to be not applicable to the facts and circumstances of the present case because in that case the Honourable Apex Court was dealing with the question of whether previous sanction was required previous sanction of a police officer not below the rank of an Additional Director General of Police was required or not to entertain a private complaint filed under the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) and whether the Special Judge has original jurisdiction of magisterial powers under the MCOCA. It was found that a Special Judge could not order an inquiry under section 156(3) Cr.P.C. without the previous sanction of a police officer not below the rank of an Additional Director General of Police in view of section 23 of the Act. 24) Section 23 of MCOCA reads thus: “Section 23. Cognizance of, and investigation into, an offence. - (1) Notwithstanding anything contained in the Code (a) No information about the commission of an offence of organized crime under this Act, shall be recorded by a police officer without the prior approval of the police officer not below the rank of the Deputy Inspector General of Police; (b) No investigation of an offence under the provisions of this Act shall be carried our by a police officer below the rank of the Deputy Superintendent of Police. (2) No Special Court shall take cognizance of any offence under this Act without the precious sanction of the police - 11 - officer not below the rank of Additional Director General of Police.” 25) In the case at hand, there is no provision for obtaining sanction from any authority under the FCRA to direct a police officer in charge of a police station to register a FIR and carry out investigation. The only provision which speaks about sanction is section 40 which reads as under: “Section 40: No Court shall take cognizance of any offence under this Act, except with the previous sanction of the Central Government or any officer authorise by that Government in this behalf.” 26) The difference between the two sections is apparent on a bare reading. The facts in Jamiruddin’s case (supra) and those of the case at hand are also distinguishable, for this is merely an application under section 156(3) seeking registering of a FIR by the Police Inspector, Panaji, with a prayer to forward it to the agency competent to investigate the offences under the Act. 27) In fact, as rightly pointed out by the Applicant, section 35 of FCRA clearly provides that whoever accepts, or assist any person, political party or organisation in accepting any foreign contribution or any currency or security from a foreign source, in contravention of any provision of this Act or any rule or order made thereunder, shall be punished with imprisonment for a term which may extend to five years or with fine or with both. 28) When the aforesaid provision is read with Part II of the First Schedule of the Code dealing with classification of offence against other laws the offence punishable with sentence of imprisonment for a term which may extend to five years, under section 35 of the Act, is cognisable, non-bailable and triable by a Magistrate of the First Class. - 12 - 29) The Applicant also submitted that section 43 has been wrongly interpreted by Advocate Kirtani and, in it’s true sense it should be interpreted as apart from the police, any offence under the Act may also be investigated into by such authority as the Central Government may specify in this behalf, which shall have all the powers which an officer-in-charge of a Police Station has while making an investigation into a cognisable offence. 30) Ex-facie, on a plain and simple reading of section 43, I find that the interpretation of the Applicant appears to be more plausible for it is a fundamental rule of interpretation of statutes that the intention of the legislature must be found in the words used by the legislature itself. I, therefore, do not accept the submission of Shri. Kirtani that the words “may also be investigated” should be read as “should be investigated.” 31) On his part, the Applicant has relied upon a catena of cases starting with Lalita Kumari v/s Govt. of U.P. WP (Crl) No.68/2008 dated 12.11.2013, wherein it was held that registration of FIR is mandatory under section 154 of the Code if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 32) In paragraph 6 of his application/objection, the Police Inspector, Panaji claims that no case is made out of violation of FCRA, much less a cognisable offence. He goes on to claim that the application does not specify which provisions of FCRA are violated. He further states that the complaint is silent about the place of offence. It is also contended that the Order dated 15.01.2014 had failed to consider these aspects. 33) I find that the very first page and paragraph 1 of the application under consideration names the accused political parties, their functionaries and the subsidiaries of the Vedanta Group which - 13 - have committed the offences under the FCRA. It is common knowledge that the offices of these subsidiaries are within the jurisdiction of the Panaji Police Station as are the offices of the BJP and the INC in Goa. I further find that on page 8, in paragraph 3 of his application, the Applicant has delineated the various offences committed. 34) I further find the Applicant, on pages 14, 15 and 16 of his application has further elucidated the manner in which and the parties by whom, the offences have been committed, while also explaining painstakingly the repercussions of the said offences on civil society, the environment and democracy. It is not as if the Applicant is a busybody who intermeddles and misuses the criminal justice delivery system to wage a personal vendetta against particular persons. On the contrary, the meticulous research undertaken by the Applicant in bringing to the fore the rot that has besieged our polity, must be appreciated and encouraged. 35) The Applicant has expressed well-founded apprehensions of the misuse of foreign contributions being used by companies who have a vested interest in the natural resources of the State of Goa, to play kingmakers and make a mockery of the democratic process. It is not unforeseeable that even anti-national elements can use such processes to bring into power a Government which can do their bidding or to indulge in activities which are detrimental to national interests, the prevention of which is the very object of the enactment of FCRA. 36) I find that the application/objection of the Police Inspector, Panaji is only an attempt to buy time to take measures to dodge the bullet of displeasing the powers that be and amounts to an abject abdication of powers conferred on his office by the Code. 37) In State of Haryana v/s Bhajan Lal (1992) Supp.1 SCC 335, it was held that at the stage of registration of a crime or a case on the basis of the information disclosing a cognisable offence in - 14 - compliance with the mandate of section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not genuine or credible .On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation is he has reason to suspect that commission of an offence which he is empowered under section 156 of the Code to investigate, subject to the proviso to section 157. 38) In Sakri Vasu v/s State of UP 2008 AIR SCW 309 it was held that the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly. 39) In Panchabhai Popatbhai Butani v/s State of Maharashtra WP (Crl) No.270/2009 dated 12.10.2009, a full bench of the Bombay High Court, referring to it’s earlier decision in Sandeep Rammilan Shukla v State of Maharashtra, 2009 (1) Mh. LJ 97 had held that in the event a person chooses to approach a police station and makes a report of a cognizable offence, the police is under an obligation to register First Information Report (FIR) except in certain exceptional cases where some kind of preliminary inquiry may be necessary in the facts and circumstances of that case before registration of an FIR. However, even there, the officer in charge of a police station is under obligation to make an entry in the daily diary register as per police rules and thereafter within the shortest possible time must register an FIR in accordance with law. 40) Finally, the Applicant placed reliance on Vishal Agrawal v/s Chhattisgarh Electricity Board Criminal Appeal No.275/2014 decided on 29.01.2014, wherein, while deciding a case of electricity theft, the appellants had challenged the order of the Special Judge taking cognisance of a challan filed after investigating the matter - 15 - pursuant to an FIR being registered by the SHO of Civil Lines Police Station, Bilaspur, on the grounds that the Special Judge could not have taken cognisance without complying with the provisions of section 151 of the Electricity Act, 2003. The High Court directed the appellants to raise the objection before the Special Judge who after hearing the appellants discharged them. The Board went in Revision before the High Court but in the meantime the Act was amended to insert section 151A and 151B. Hence, the High Court held that the police had powers to forward the complaints received from the authorities under section 151. 41) Section 151 of the Electricity Act, 2003 reads as under: “Section 151. No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose.” 42) It was argued before the High Court that the complaint was made by an Assistant Engineer to the police who was below the rank of a Junior Engineer and was not made to the Court and the mandate of section 151 was not adhered to. Rejecting the arguments, the High Court held that in view of the Electricity (Amendment) Act, 2007 cognisance on an offence punishable under the Act could be taken upon a report of a police officer. 43) Referring to it’s earlier decision in Assistant Electrical Engineer v/s Satyendra Rai (2012) 1 PLJR 476, the Apex Court reiterated: “19. As far as the scheme of the Code of Criminal Procedure (hereinafter referred to as the Code) is concerned, it is essential to point out that it demarcates the offences into two categories, namely, cognizable and non-cognizable offences. As per Part II of Schedule I of the Code, any offence punishable with three years or more of imprisonment is a cognizable offence. Section 154 of the Code prescribes that in respect of every offence which is a cognizable one, information thereof is - 16 - to be given to an officer in-charge of a police station, who shall reduce the same into writing. Thus, it is the duty and responsibility of the police authorities to register a First Information Report. Sub-section (3) of Section 154 further obligates the police authorities to investigate the same as per the manner prescribed in subsequent sections and thereafter submit its report to the Magistrate, who is empowered to take cognizance of the offence on police report, under Section 173 of the Code, on completion of investigation. 20. Here, the provisions of Section 4 of the Code become relevant which provide a complete answer to the submission of the appellant. It reads: “4. Trial of offence under the Indian Penal Code and other laws. - 1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigation, inquiring into, trying or otherwise dealing with such offences.” 21. It is apparent from the reading of Section 4 that provisions of the Code would be applicable where an offence under the IPC or under any other law is being investigated, inquired into, tried or otherwise dealt with. These offences under any other law could also be investigated, inquired into or tried with according to the provisions of the Code except in case of an offence where the procedure prescribed there under is different than the procedure prescribed under the Code. It is so specifically provided under Section 155 of the Electricity Act also. Thus, it is not a case where any special or different procedure is prescribed. Rather, the procedure contained the Code is made applicable for the offences to be tried under the Electricity Act as well.” 44) Mr. Kirtani sought to discount the decision in Vishal Agrawal (supra) by drawing my attention to paragraph 21 wherein it was mentioned that, “These offences under any other law could also be investigated, inquired into or tried with according to the provisions of the Code except in case of an offence where the procedure prescribed there under is different than the procedure prescribed - 17 - under the Code.” He emphasised on the fact that the procedure prescribed under the FCRA was different than that under the Code. 45) I an unable to accept such a contention of Advocate Kirtani. Section 52 of FCRA clearly states that the Act is not in derogation of any other law. 46) Before parting, it would be appropriate to mention that the Applicant has not sought the immediate arrest of any person in his application. All that he has prayed for is the registration of an FIR and investigation in accordance with law. In the course of arguments, the Applicant spared no effort to emphasise that he was not even interested in the Police Inspector, Panaji chargesheeting anyone if he found that he did not have the power to do so. At the very least, the Police Inspector, Panaji should forward the FIR registered to the CBI for investigation. He even went to the extent of making a statement across the bar that he would not even mind if the Police Inspector were to file a closure report after at least registering the FIR and conducting investigations. 47) Thus, in view of the above discussions, I find that the application of the Applicant clearly makes out the commission of a cognisable offence under section 35 of the FCRA and for violation of section 29B of the Representation of Peoples Act, 1951 as the BJP and the INC have accepted foreign contributions in contravention of the provisions of FCRA. In addition, I find that the office bearers of the said parties have committed offences punishable under sections 119, 177, 217, 218, 420 read with section 120-B Indian Penal Code. Accordingly I pass the following: ORDER The Police Inspector of Panaji Police Station is directed to register an FIR, within 24 hours and report compliance, against the Officer Bearers of the BJP and INC, the Directors of Sesa Goa Ltd., - 18 - Sterlite Industries India Ltd. and the Madras Aluminium Company Ltd., under section 35 of the FCRA and for violation of section 29B of the Representation of Peoples Act, 1951 and for committing offences under sections 119, 177, 217, 218, 420 read with section 120-B Indian Penal Code. (Bosco G. F. Roberts) Judicial Magistrate First Class, ‘C’ Court, Panaji, Goa.
Posted on: Mon, 17 Mar 2014 14:00:44 +0000
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