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Brief analysis on the Lawyers Collective Case with respect to Anticipatory Bail and Inherent Powers of the High Court

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[1] 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 2014-15.

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 prior approval.

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 regulations.

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[2]. 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 up."[3]

Issues And Arguments
  1. 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 is justified?
    • Whether the High Court was justified in exercising its inherent powers during the trial?

  2. Arguments Advanced
    1. 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.

    2. 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.

    3. 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.

  3. Provisions Of Law
    1. 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[4].

      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 with are:
      1. The offense or the crime with which the accused has been charged, its nature, intensity and intention.
      2. Whether there has been any previous record of the accused of being arrested or convicted for a cognizable offence by the Court of law.
      3. 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.
      4. 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.[5]

    2. 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)[6] 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 conditions being:
      1. That the person shall make himself available for interrogation as and when required by the prescribed police officer having jurisdiction.
      2. 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 officer.
        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)[7], 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.

      3. Refusal Of Anticipatory Bail
        Circumstances for refusal of an Anticipatory Bail are[8]:
        • 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 out.
        • 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.

      4. Saving Of Inherent Powers Of The High Court
        Section 482 of the CRPC[9] 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[10]

        1. Prevent abuse of the process of the court.
        2. Secure the ends of justice.
        3. To give effect to an order under the Code.

          1. 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 [11]. The provisions of Article 226, 227 and section 482 are meant to advance justice and not to frustrate it.
          2. 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 prosecution. [12]
          3. Inherent Power not effected by Provision in Sec 397(3)[13]:
            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.[14]

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.[15]
  1. 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;

  2. 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;

  3. 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;

  4. 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;

  5. 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;

  6. 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.

  7. 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;

  8. 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;

  9. 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

  10. 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.[16]

Judgement / Decision
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.

Nevertheless, 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.

Conclusion With
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 personal grudges.

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 the hour.

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.

  1. Foreign Contribution (Regulation) Act, 2010, s. 3,5,7,31 ss.2, 43, (India
  2. CBI files case against Indira Jaising's NGO Lawyers Collective for alleged FCRA violations, available at:, (last visited on September 28th, 2020)
  3. Express New Service, CBI searches home and offices of senior lawyers Anand Grover, Indira Jaising…, available at: , (last visited October 4, 2020
  4. The Code of Criminal Procedure, 1973, s. 438, (India).
  5. Gurbaksh Singh Sibbia v State of Punjab, AIR 1980 2 (SCC) 565
  6. Supra note 3, ss. 2
  7. 2020 SCC OnLine SC 98
  8. Hariana & Co., Grant of Anticipatory Bill, available at:, (last visited October 6, 2020)
  9. The Code of Criminal Procedure, 1973, s. 482 (India)
  10. (2014) 6 SCC 466
  11. 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 210
  12. State of Telengana v Habib Abdullah Jeelani, AIR 2017 SC 373; [2017] 1 MLJ (crl) 375; LNIND 2017 SC 19
  13. Supra note 3, s. 397, ss.3
  14. Puran v Rambilas, (2001) 6 SCC 338: AIR 2001 SC 2023; 2001 Cr LJ 2566
  15. Criminal Appeal No. 1723 of 2017
  16. Landmark judgment of Supreme court for quashing of prosecution against accused on ground of compromise, Law Web, available at:, (last visited October 7, 2020)

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