FCRA case: CBI moves SC against Bombay HC order giving interim protection to Grover, Jaising

The CBI moved the Supreme Court Friday challenging the Bombay High Court order restraining the agency from taking any coercive action against NGO Lawyers Collective and its founding members, senior lawyers Anand Grover and Indira Jaising.

The CBI had registered a case against Grover and the NGO over alleged violation of the Foreign Contribution (Regulation) Act (FCRA) in use of foreign funds received by Lawyers Collective.

The probe agency said the High Court has neither rendered any finding as to how the FIR registered against the accused parties is "unsustainable and bad in law" nor referred to any finding as to how the continuance of the investigation against the accused would be contrary to law.

"However, despite not rendering any finding on the aforesaid two inviolable grounds and in spite of being pointed out the law laid down by the apex court, the High Court has passed the impugned interim order on a completely untenable reason that the FIR is based solely and entirely on the inspection of report of 2016 and that there is absence of any fresh material, therefore, an order of no coercive step was warranted," the CBI has said in its plea.

It said that while passing the directions, the High Court completely failed to appreciate that there was no statutory bar in registration of an FIR on the basis of the inspection report 2016.

"It is respectfully submitted that when the allegations in the FIR otherwise manifested commissioning of a cognizable offence, the said ground of no new fresh material was completely impertinent and extraneous for exercise of powers under section 482 CrPC.

"As such, it was completely impermissible for the High Court to pass the impugned order which in pith and substance is an order in nature of section 438 CrPC order passed without satisfying the conditions mentioned therein," the CBI said.

Grover and his wife had approached the high court in July seeking that the FIR registered by the CBI against the NGO and them in June be quashed.

Senior Advocate Aspi Chinoy, appearing for the petitioners, had denied all charges of FCRA violation, and alleged that the FIR and the Ministry of Home Affairs complaint preceding it were "ex facie (on the face of it) examples of abuse of power".

The CBI registered the FIR following a complaint by the MHA in May alleging violation of FCRA provisions. While the FIR did not name Jaising as an accused, the MHA complaint, which is part of the FIR, mentioned her name and made specific allegations against her.

The CBI alleged that the NGO received foreign funds between 2009 and 2015, but failed to disclose a major part of it.

It said that Grover and Jaising used foreign funds for "personal benefits".

According to the MHA complaint, during her tenure as Additional Solicitor General, Jaising continued to draw remuneration from the NGO, the CBI said, adding that this came from foreign contributions received.

The petitioners also pointed out that the MHA complaint was based on an inspection report from 2016 that had pointed out a single violation of non-disclosure under the FCRA. At the time, following the inspection report, the MHA had issued an order cancelling the registration of Lawyers Collective for receiving foreign funds.

This cancellation order was challenged in the high court by the NGO in 2017, and is currently pending before a single judge, the petitioners said.

While granting interim relief, the division bench took note of the petitioners' submission that the CBI's act of filing an FIR on the basis of a two-and-half year old report, when the matter had reached the court, was questionable.

"We find that the allegations against the petitioners are already sub-judice before a single bench of this court. It is pertinent to note that there has been no change in circumstances or on the material on record," the bench said.

"The respondent number one (MHA) waited for over two years and in May this year, issued directions for investigations. The investigation is being carried out on the basis of an inspection report from 2016, but the cancellation order issued later...is sub-judice," the bench had said