No coercive action against Deepak Talwar in FCRA case: HC

The Delhi High Court has asked the CBI not to take any coercive action against corporate lobbyist Deepak Talwar and his NGO in a criminal case lodged against them over alleged violation of foreign funding laws.

A bench of Justices S Muralidhar and I S Mehta, however, made it clear that this protection would be available only if they continue to cooperate with the CBI investigation.

“Having heard the counsel on behalf of the parties, this court is of the view that subject to petitioners continuing to cooperate in the investigations by the CBI, no coercive action should be taken till further orders,” the bench said.

The high court’s order came on a plea by Talwar and his NGO, Advantage India, who have sought quashing of the CBI’s FIR lodged against them for criminal conspiracy, forgery and under various sections of the FCRA for allegedly diverting Rs 90.72 crore worth of foreign funds meant for ambulances and other articles received by his NGO from Europe’s leading missile manufacturing company.

The Foreign Contribution (Regulation) Act (FCRA) wing of the Ministry of Home Affairs on August 3 initiated proceedings against Talwar, his NGO and others after cancelling the voluntary body’s licence.

The ministry subsequently sent the matter to the CBI, which on November 16 initiated criminal proceedings by registering an FIR against Talwar and five others.

The bench, however, observed that the provisions of FCRA, used by the ministry and CBI to initiate the proceedings against the lobbyist and his NGO, could not have been invoked together.

“Prima facie, it appears to the court that section 43 of FCRA, which seeks to override only the provisions of the CrPC that may be contrary thereto, is subject to section 40 FCRA.

Also, given the scheme of the FCRA, two parallel criminal proceedings, one under section 40 FCRA and other under section 43 FCRA appears inconceivable and legislatively unintended,” the bench noted.

It observed the apart from the fact that the offences under the FCRA are expressly stated to be noncognisable, section 40 of FCRA is categorical that “no court shall take cognisance of any offence under this Act, except with the previous sanction of the Central Government or any officer authorised by that Government in this behalf”.

“Section 43 of FCRA appears to permit an investigation by an officer as may be authorised by the Central Government into the very same offences under the FCRA by granting such authority the powers that a police officer may have while investigating a cognisable offence.

“In the present case, without resorting to the route contemplated under Section 40 of FCRA, the Central Government appears to have invoked Section 43 of FCRA to get the CBI to straightaway register an FIR not limited to offences under the FCRA, but also IPC offences that are cognisable,” it noted.

The bench also issued notice to the Centre and the CBI on the plea and sought their replies within four weeks.

The court fixed the matter for further hearing on March 13 next year.

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