The purpose of an adjective law of procedure is to provide machinery for
trial, prosecution and punishments for offences under the substantive law, i.e.,
Indian Penal Code or any other state law passed, which defines the rights,
duties and liabilities of a person. The Indian Constitution under Article 227
provides that the High Court has superintendence over all courts and tribunals
throughout the territories in exercising jurisdiction.
Similarly, the Criminal
Procedure Code further elaborately provides that every High Court shall have the
inherent power over subordinate courts to ensure proper disposal of cases. Apart
from that, Article 21 goes hand in hand with Anticipatory bail in granting the
rights of the accused to any innocent victim of the alleged crime.
Over time, it is witnessed how the idea of invoking some of the laws have
changed and persons accused of heinous crimes are invoking pre-arrest bail
repeatedly, which is not the aim of the provision while providing relief. It is
also to be noted that High Courts are not merely courts in law, but also courts
of justice, possessing powers to remove injustice.
The research paper presented
focuses on one of the judgments of the Bombay High Court while dealing with
Section 438 and Section 482 of the Code of Criminal Procedure, 1973 against some
of the listed offences mentioned therein.
Lawyers Collective & Ors. Vs. Central Bureau of Investigation & Ors.
(Dated 25th July, 2019)
Background Of The Case
The non-governmental organization mentioned herein in the case The Lawyers
Collective was founded on 1981 in India, among its founders were Indira
Jaising and Anand Grover. It dealt with mostly promotion of human rights,
especially on issues relating to women's rights, HIV, tobacco, LGBT and
parliamentary corruption in India.
After the Narendra Modi government came into power in 2014, a quelling on the
NGOs with foreign funding was launched. Investigations were made into the NGOs
which received foreign funds and thereafter licenses of more than 13,000 NGOs
were cancelled in 2017-18, according to consultancy firm Bain & Co.'s report.
In and around 2016, the Ministry of Home Affairs discovered prima facie
violations of the FCRA guidelines and rules by Lawyers Collective, a
registered NGO acquiring an FCRA license and according to the complaint had
received Rs 32.39 crores through foreign contributions starting from 2006-07 to
The MHA after inspecting the NGO's books of accounts and records from January
19-23, 2016, recorded observations which according to their believe disclosed
under the FCRA certain offences. After few unsatisfactory responses from the
Lawyer's Collective, the MHA was bound to issue a show cause notice to the NGO
under the FCRA.
On June 1, 2016, the Lawyer's Collective was suspended for six months by the
Government of India on charges of misusing the foreign donations and also on the
grounds of violating the FCRA norms. It was also stated in the suspension notice
that the Lawyers collective will not be allowed to receive any foreign funds. In
the order issued by the MHA, Indira Jaising was found guilty for accepting
remuneration of Rs 96.60 lakh from the NGO during her tenure as Additional
Solicitor General between July 2009 and May 2014.
The license on being revoked was challenged in the Bombay High Court. The NGO
approached the High court against these charges and decisions and their cases
are still pending there.
Facts Of The Case
The central Bureau of Investigation (CBI) had registered an FIR against NGO
Lawyers Collective and senior lawyers Anand Grover on charges of violating rules
under the Foreign Contribution (Regulation) Act, 2010. The FIR, registered
against the Lawyers collective was based on a complaint by the Ministry of Home
affairs against the NGO and its founding members senior lawyer Indira Jaising
and Anand Grover on the alleged violation of foreign Contribution (Regulation)
Act, 2010 and also accused under the provisions of Indian Penal Code for
forgery, cheating and criminal conspiracy.
In the complaint there was a mention about the rally which was held for HIV/AIDS
bill during the period 2006-07 to 2014-15 when the NGO receive foreign
contributions amounting to rupees 32.39 crore. The CBI for the states that the
office bearers on receiving the foreign contribution used the same for personal
benefits and spend it outside the country which is violative under the
provisions of FEMA. However, on investigation the investigated agency stated
that senior lawyer Indira Jaising had received rupees 96.6 lakh of remuneration
from the foreign contributions which were made to the NGO during her term as the
additional solicitor general (2009-14). The complaint also alleged that the
expenses of her foreign trips were borne by the NGO without the Home Ministry's
In a statement, the lawyers Collective (LC) expressed shock and outrage at
the action of the CBI in registering a FIR against them. The FIR was solely
based on proceedings under the foreign Contribution Regulation Act, 2010, (FCRA)
where the orders passed by the Ministry of Home Affairs were for the
cancellation and suspension of Lawyers Collective's registration because of
receiving foreign funding in 2016, which LC has challenged by way of appeal
before the Bombay High Court.
The claims by Jaising on the remuneration being permissible under the FCRA, and
paid by the LC before she became the ASG and continued during and after her
tenure, also included her statements that she has taken the permission of the
law minister to continue to receive the remuneration under the law officers
(terms and conditions) rules. However, the CBI contended on receiving the
permission from the Law Ministry instead of it coming from the MHA. The MHA
premised its allegations on the assumption of Additional Solicitor General,
Jaising being a government servant, which she was not. Similarly, the expenses
which were reimbursed to Anand Grover were permissible under the FCRA and its
Therefore, an appeal was filed in the Bombay High court, on which interim orders
were passed making a note on the MHA submissions to be vague.
The NGO further contended that the officer bearers were being personally
targeted for speaking up on human and secular rights, and on the independence of
the system of judiciary in all perspective and most importantly in their
capacity as senior lawyers in court.
The LC found or rather looked upon it as a blatant attack on the people by
ceasing the right to represent them, particularly the marginalized and the ones
who dissented in their views from the ruling party. Thereby, attacking their
fundamental right to free speech and expression as well as their legal
profession as a whole.
"The Lawyers Collective believes that the FIR has no basis in fact and law.
It is to target the Lawyers Collective and its office bearers to silence them as
they have taken up sensitive cases in the past, and continue to take them
Issues And Arguments
- Issues Raised
- Whether the allegations made against the NGO and its office bearers were to
personally target them for speaking up in defense of human rights?
- Whether the petition filed by the Lawyers Collective for quashing the FIR
- Whether the High Court was justified in exercising its inherent powers during
- Arguments Advanced
- The contention of the organization that the said FIR had no basis in
fact and in law and was filed to harass and target the office bearers in
order to silence them for the cases they had taken up in the past, but according
to the complaint, these findings show that lawyers Collective, Anand Grover, and
other office-bearers of the NGO used the foreign contributions received by the
organization for activities not mentioned in the objects of association filed
with the government, engaged in political activities, and that the funds
received were not used for the objectives mentioned in the Article of
Association, but were rather used for objects related to personal expenses.
- The CBI alleged that the NGO received foreign funds between 2009 and
2015, but failed to disclose a major part of it and said that Mr. Grover and
Ms. Jaising used foreign funds for personal benefits i.e., during her tenure
as Additional Solicitor General, Ms. Jaising continued to draw remuneration from
the NGO and the same remuneration money, received by the NGO was claimed to be
of foreign contributions. On which, the petitioners argued that Mrs. Indira
Jaising on the permission of the Law Ministry's permission drew the remuneration
from Lawyers Collective while being the Additional Solicitor General.
The petitioners also contended of the MHA complaint being only based on an
inspection report from 2016, which had pointed out only a one of the violations
under the FCRA on non-disclosure of necessary reports. Following the inspection
report, the MHA cancelled the registration of Lawyers Collective by issuing an
order alleging them on receiving foreign funds. In addition, with regards to the
violations of FCRA attributed to petitioners, an action is already initiated and
there is no new material which are brought on record by the present FIR which is
solely and entirely based on the inspection of Report of 2016.
Thus, in such
circumstances, in the absence of any fresh material being available for
registration of the FIR, the declining of quashing of the FIR was not justified.
The Court should have quashed the proceedings by exercising its power under
Section 482 of C.r.P.C because the grounds on which the FIR was registered have
already been settled by cancelling the license of the NGO therefore, taking
further coercive actions against the petitioner was bad in law.
- While declining to quash the FIR and investigation, the High Court had
extended the privilege to the accused person which was in the nature of
anticipatory bail, and this approach was disapproved since according to
Section 438 it is said that the High Court while granting anticipatory bail
must give relevance to the investigation which has not yet been completed
and the court is duly responsible to ensure investigation is carried out
without any hamper or interference in any manner.
Moreover, the order passed
by the High Court was absolutely unknown to the exercise of inherent
jurisdiction under Section 482, which states that, the High Court may quash
the criminal proceeding if in view of the compromise between the disputants,
which includes that no coercive action must be taken by one party against
the other and the possibility of a conviction is remote or else the
continuation of a criminal proceeding would cause oppression and prejudice.
- Provisions Of Law
- Meaning Of Anticipatory Bail
Under Indian criminal law, there is a provision for anticipatory bail under
section 438(1) of the criminal procedure code, 1973. The provision helps a
person to seek bail in anticipation of an arrest on being accused of a non-bailable
offence. This order is issued by the Sessions Court or High Court even before
the arrest has taken place.
The purpose of granting such bail is to protect the appellant's life and liberty
which is interpreted with Article 21 of the Constitution (protection of life and
personal liberty) and also to protect him from any unnecessary trauma and
defamation of false and frivolous charges and arrest.
While granting Anticipatory bail, the considerations that have to be complied
- The offense or the crime with which the accused has been charged, its
nature, intensity and intention.
- Whether there has been any previous record of the accused of being
arrested or convicted for a cognizable offence by the Court of law.
- If there is a possibility of the accused to abscond if not arrested or
creating disturbance in the smooth investigation process, then in such case
the anticipatory bail is to be considered or not.
- Whether the accusation was made with mala fide intention and only to defame
the applicant or if the accused is actually liable of commission of such alleged
offence and the accusation was to achieve justice.
- Conditions Before Making Such Direction
The High Court and the Court of Session may impose certain conditions according
to the matter of the case when an application comes in front of the respective
court of law. The conditions mentioned in Section 438(2) are not exhaustive
rather illustrative. The Court while granting anticipatory bail must remember
that the investigation has not yet been completed and it is the due
responsibility of the court to ensure smooth investigation process with
interference in any manner.
Unless warranted by law, the court cannot impose any conditions thereupon. No
direction shall be issued to the effect such that it favors the applicant by
releasing him on bail if arrested provided, he produces the alleged stolen
property before the police officer investigating on such matter. The High Court
can set aside such order after revision or by the exercise of inherent powers.
The Court is authorized to impose necessary conditions and restrictions. The
- That the person shall make himself available for interrogation as and
when required by the prescribed police officer having jurisdiction.
- That the person shall not either directly or indirectly induce, impose
any threat or promise any person acquainted with the facts of the case so as
to prevent him from disclosing the relevant facts to the Court or police
A condition that the person shall stay in India and is not allowed to leave
without the permission of the Court.
In the case of Sushila Aggarwal V. State (NCT of Delhi), in a 5-judge bench
of Arun Mishra, Indira Banerjee, Vineet Saran, MR Shah, and Ravindra Bhat, it
was unanimously held that under Section 438 Cr.PC, the protection granted to a
person should not invariably be limited to a fixed period rather it should
condition it in favour of the accused without any restriction on time.
- Refusal Of Anticipatory Bail
Circumstances for refusal of an Anticipatory Bail are:
- The possibility of the Applicant to abscond in the event cognizance is taken by
the trial court or warrant of arrest has been issued by the trial court.
- If the prima facie case with which the Applicant has been charged can be made
- The Applicant has previously undergone an imprisonment on conviction in respect
of any cognizable offence.
- Where a case can be made out that the Applicant is capable of influencing
investigation to his advantage.
- When a case for a reasonable claim to secure incriminating material
information likely to be received from the Applicant can be made out
- When a legitimate case for remand of the Applicant/offender to the police
custody is be made out by against the Applicant.
- Application preferred on the ground of Sickness alone is not sufficient.
- Application has been preferred for offences not yet committed or with
regard to accusations not so far levelled. A person's financial status, wealth or
otherwise would not be considered as relevant issues for the Court in granting
an Anticipatory Bail.
- Saving Of Inherent Powers Of The High Court
Section 482 of the CRPC basically deals with quashing of criminal case
proceedings by high courts to ensure justice according to essential and deemed
circumstances. The High Courts in deciding matters under Section 482 is guided
by following objectives, as laid down in Narinder Singh v. State of Punjab
- Prevent abuse of the process of the court.
- Secure the ends of justice.
- To give effect to an order under the Code.
- Powers to be exercised ex debito justitiae:
The Latin meaning of ex
debito justitiae is as of right. The power under the section should be
ex debito justitiae to prevent abuse of process of court. But it should not be
in exercise of hampering legitimate prosecution. The power has to be exercised
very sparingly and with circumspection and that too in the rarest of the rare
cases . The provisions of Article 226, 227 and section 482 are meant to
advance justice and not to frustrate it.
- Quashing of FIR:
Inherent power under Section 482 in a matter of
quashing of FIR has to be exercise sparingly and with caution and when and only
when such exercise is justified under the provision by the test specifically
laid down. The power u/s 482 is very vide and conferment of wide power requires
the court to be more cautious. It casts an onerous and more diligent duty on the
court and the said power is not to be used to choke or smother a legitimate
- Inherent Power not effected by Provision in Sec 397(3):
The High Court's power u/s 482 is not affected by the provision in sec 397
(3). The Supreme Court said:
Even if it is and interlocutory order, the High Court inherent jurisdiction u/s
482 is not affected by the provisions of 397 (3) CrPC. That the High Court may
refuse to exercise its jurisdiction under sec 482 on the basis of voluntary
restriction might be a totally different aspect or facet. It has to be agreed
that for securing the ends of justice, the High Court will interfere with the
order that causes miscarriage of justice or is palpably unreasonable,
unjustified or illegal.
The Hon'ble Supreme Court after discussing various precedents on the subject
interpreted the following principles with respect to Section 482 for quashing
FIRs in a famous case of Parbatbhai Aahir & Ors. v. State of Gujarat & Anr
Judgement / Decision
- Section 482 preserves the inherent powers of the High Court to prevent
an abuse of the process of any court or to secure the ends of justice. The
provision does not confer new powers. Only powers which inhere to the High
Court are recognized and preserved;
- The High Court's invocation of jurisdiction in quashing a First-Hand
Information Report or on settlement between the offender and the victim to
not continue the criminal proceeding is not same as invocation of
jurisdiction in compounding of an offence. In compounding of offence, the
provisions of Section 320 of the Code of Criminal Procedure, 1973 is
applied. Even in non- compoundable offences Section 482 is attracted;
- The high court while forming an opinion whether a complaint or criminal
proceeding shall be quashed under section 482 in exercising its
jurisdiction, must also evaluate the ends of justice and its reasonableness
with the exercise of inherent powers;
- While the inherent power of the High Court has a wide ambit and
plenitude it has to be exercised;
to secure the ends of justice or
to prevent an abuse of the process of any court;
- The decision as to whether a complaint or First Information Report
should be quashed on the ground that the offender and victim have settled
the dispute, revolves solely around the facts and circumstances of every
case and no principles can be formulated after exhaustively elaborating it;
- In the exercise of the power under Section 482 and while dealing with a
plea that the dispute has been settled, the High Court must have due regard
to the nature and gravity of the offence. Offences like murder, rape, dacoity,
etc which are of serious and heinous nature cannot be quashed even if the
victim along with his family have settled the dispute. These offences are
not be considered private in a any sense but looked upon consequentially due
to its serious impact upon the society. The decision to continue trial of
such matters is completely based on the element of public interest in
determent of such heinous offences through punishment.
- As distinguished from serious offences, there may be criminal cases
which have an overwhelming or predominant element of a civil dispute.
However, as far as the exercise of the inherent power to quash is concerned,
the cases stand distinct from each other;
- Criminal cases involving offences which arise from commercial,
financial, mercantile, partnership or similar transactions with an
essentially civil flavour may in appropriate situations fall for quashing where parties have
settled the dispute;
- In such a case, the High Court may quash the criminal proceeding if in
view of the compromise between the disputants, if the conviction of the
accused is remote and such criminal proceeding and its continuation could
cause prejudice and oppression; and
- There is yet an exception to the principle set out in propositions
(viii) and (ix) above. Economic offences involving the financial well-being
of the state have implications which lie far from the domain of a mere
dispute or conflict between individual disputants. By declining to quash
whenever or wherever the offender's involvement is found akin to economic or
financial misdemeanor or fraud, the high court would be justified. the
consequences of the act causing financial or economic hazard will be weighed
in the balance.
The Apex court while dealing with the appeal where it was observed that the High
court extended some privilege to the accused person by declining to cause the
fire in the investigation which was in the nature of anticipatory bail this
approach of the high Court was disapproved by the supreme court and it ruled
that such and order which the High Court has passed under Section 482 was
absolutely unknown in the exercise of inherent jurisdiction under.
the apex court also observed that if it deems fit in the parameters of quashing
and self-restraining imposed by law, it may pass necessary and appropriate
interim orders apposite in law. But what was disapproved was declining to
interfere in the investigation along with granting of protection from arrests.
However, the Apex court on perusal of the FIR, after being satisfied with the
fact of it being based on the 2016 inspection report, inclined to grant
ad-interim relief in favor of the petitioners and directed the respondents not
to take any coercive action against them till the next hearing. Thus, the
impugned judgement of the High Court was set aside.
The Hon'ble Apex Court while summing up the judgment stated that while
interpreting any decision the courts must keep in view that it is the bounden
duty and obligation on their part to curb down any unjust enrichment and excess
undeserving gain on the part of one of the parties by invoking the jurisdiction
of the court. Thereby, making it clear that High Court was not absolute in
rendering its judgment by quashing the proceedings instituted on the basis of
the lodged FIR.
The impugned order of the High court being set aside, the
Supreme Court expressed that while arbitrating, any crooked enhancement or
uncalled increase of gathering for summoning in the ward of the court must be
ceased thereafter. Along these lines, the importance of Section 482 is
highlighted which is wide enough to meet the ends of justice at the same time
curb down filling of fictitious complaints filed with the intention of avenging
This creates a mandatory obligation on the courts to use this
power wisely and accordingly to the guidelines laid down by both the High court
as well as the Supreme court from time to time. In the current legal scenario,
section 482 has seen several changes according to the changing times and need of
In cases of granting of an Anticipatory Bail, a blanket order of anticipatory
bail cannot be passed i.e., order of anticipatory bail cannot be of the effect
that the applicant, whenever arrested, for any offence whatsoever shall be
released upon such arrest.
In order to judge the reasonableness of the apprehension of the accused arrest
application, the court looks for transparency of the facts, thus it is very
essential that the applicant discloses specific details and facts for the ease
of the courts. Mere fear cannot be an element to grant anticipatory bail to the
accused. The applicant while pleading to obtain anticipatory bail in his case,
has to necessarily establish that he has reason to believe and also point out
the possibilities of him getting arrested.
At the end what is essential is that a balance always is maintained between the
personal liberty of an individual and the need to maintain law and order in
society. The courts should exercise their discretion wisely and in ways that are
just and fair, keeping in mind the principles of natural justice.
- Foreign Contribution (Regulation) Act, 2010, s. 3,5,7,31 ss.2, 43,
- CBI files case against Indira Jaising's NGO Lawyers Collective for
alleged FCRA violations, available at:https://scroll.in/latest/927454/cbi-files-case-against-indira-jaisings-ngo-lawyers-collective-for-alleged-fcra-violations,
(last visited on September 28th, 2020)
- Express New Service, CBI searches home and offices of senior lawyers
Anand Grover, Indira Jaisingâ€¦, available at: https://www.financialexpress.com/india-news/cbi-searches-home-and-offices-of-senior-lawyers-anand-grover-indira-jaising-oppn-calls-it-coercion/1641381/
, (last visited October 4, 2020
- The Code of Criminal Procedure, 1973, s. 438, (India).
- Gurbaksh Singh Sibbia v State of Punjab, AIR 1980 2 (SCC) 565
- Supra note 3, ss. 2
- 2020 SCC OnLine SC 98
- Hariana & Co., Grant of Anticipatory Bill, available at: https://www.hariani.co.in/newsletters/19517_Grant_of_Anticipatory_Bail.pdf,
(last visited October 6, 2020)
- The Code of Criminal Procedure, 1973, s. 482 (India)
- (2014) 6 SCC 466
- Dhruvaram Murlidhar Sonar v State of Maharastra, AIR 2019 SC 327; Anand
Kumar Mohatta v State (Govt. of NCT of Delhi) Department of Home, AIR 2019 SC
- State of Telengana v Habib Abdullah Jeelani, AIR 2017 SC 373;  1 MLJ
(crl) 375; LNIND 2017 SC 19
- Supra note 3, s. 397, ss.3
- Puran v Rambilas, (2001) 6 SCC 338: AIR 2001 SC 2023; 2001 Cr LJ 2566
- Criminal Appeal No. 1723 of 2017
- Landmark judgment of Supreme court for quashing of prosecution against
accused on ground of compromise, Law Web, available at: https://www.lawweb.in/2019/03/landmark-judgment-of-supreme-court-for.html,
(last visited October 7, 2020)
Award Winning Article Is Written By: Ms.Payal Mishra
Authentication No: JL119541692247-14-0721