Section 40 FCRA 2010: Previous Sanction for Prosecution
Section 40 of the Foreign Contribution (Regulation) Act, 2010 places a statutory restriction on a court taking cognizance of an offence under the Act unless the required previous sanction has first been obtained.
Text of Section 40
Bar on prosecution of offences under the Act. No court shall take cognizance 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.
What Section 40 means
The provision creates a mandatory sanction requirement at the stage when a court is asked to take cognizance of an offence under the FCRA. In practical terms, prosecution under the Act cannot proceed to cognizance merely on the basis of an allegation or investigation; the statutory requirement of previous sanction must also be satisfied.
The expression "previous sanction" is important. The sanction contemplated by Section 40 must exist before the court takes cognizance. The sanction may be accorded by the Central Government or by an officer whom the Central Government has authorised for this purpose.
Authorised sanctioning officers
The Central Government has exercised its power under Section 40 through notification. The official notification dated 27 October 2011 authorises specified officers to accord previous sanction, including the Union Home Secretary for offences investigated by the Central Bureau of Investigation and the Secretary of the concerned Ministry or Department in specified cases.
Key points for understanding Section 40
- It applies to offences under the Foreign Contribution (Regulation) Act, 2010.
- The restriction is directed at the court taking cognizance of the offence.
- Previous sanction is required before cognizance.
- Sanction may come from the Central Government or an officer authorised by it.
- The identity and authority of the sanctioning officer should be checked against the applicable government notification.
- Section 40 is distinct from Section 41, which deals with composition of certain offences.
Related FCRA provisions
Sections 33 to 39 contain offence and penalty provisions covering matters such as false statements, contraventions, additional fine, residual penalties, prohibition following conviction and offences by companies. Section 40 then prescribes the previous-sanction requirement for prosecution, while Section 41 deals with composition of certain offences and Section 43 concerns investigation into cases under the Act.
Official FCRA resources
Note: This page explains Section 40 for general legal information. For a prosecution or sanction dispute, the applicable notification, sanction order, alleged offence and procedural record should be examined together.