Section 43 FCRA: Investigation of Offences under the Foreign Contribution Regulation Act 2010

Section 43 of the Foreign Contribution (Regulation) Act, 2010, commonly called the FCRA, gives the Central Government power to specify an authority that may investigate offences punishable under the Act. The specified authority receives the investigative powers of an officer in charge of a police station while investigating a cognizable offence.

Text of Section 43 of the FCRA 2010

The provision creates a special statutory mechanism for investigation of FCRA offences. The words "may also be investigated" allow an authority specified by the Central Government to investigate offences punishable under the FCRA. Once validly specified, that authority is vested with the police-station investigation powers described in Section 43.

Meaning and legal effect of Section 43

1. Non obstante clause

Section 43 opens with the words "Notwithstanding anything contained in the Code of Criminal Procedure, 1973." A non obstante clause gives the provision overriding operation to the extent of an inconsistency with the law referred to in that clause. In practical terms, Section 43 preserves the special FCRA mechanism under which the Central Government can specify an investigating authority for offences under the Act.

2. Offence punishable under the FCRA

The investigation power under Section 43 concerns an offence punishable under the FCRA. The penal provisions are principally contained in Chapter VIII, including Sections 33 to 39, while Sections 40 and 41 deal respectively with the bar on prosecution and composition of certain offences.

3. Authority specified by the Central Government

Section 43 does not itself name one permanent investigating agency for every case. Instead, it authorises the Central Government to specify the investigating authority. The relevant notification therefore matters when determining which agency is empowered to investigate a particular FCRA offence.

4. Powers during investigation

The authority specified under Section 43 has all the powers that an officer in charge of a police station has while investigating a cognizable offence. These are investigative powers; questions concerning prosecution, cognizance, sanction or statutory bars must also be examined under the other applicable provisions of the FCRA and criminal procedure law.

S.O. 2446(E) dated 27 October 2011: Investigating authorities

In exercise of Section 43, the Central Government issued S.O. 2446(E) dated 27 October 2011. The notification specifies officers not below the rank of Sub-Inspector of Police of the following organisations as authorities for investigation of offences punishable under the FCRA 2010.

The exact notification should be checked when agency jurisdiction is material to a particular case. The Delhi High Court has also discussed the notification and the investigation framework under Section 43 in M/s Advantages India v. Union of India (2019).

Section 43 after commencement of the BNSS 2023

For present-day proceedings, Section 43 should therefore be read with the current criminal procedure framework. Section 4(2) of the BNSS provides, in substance, that offences under laws other than the Bharatiya Nyaya Sanhita are investigated, inquired into, tried and otherwise dealt with according to the BNSS, subject to any enactment regulating the manner or place of such proceedings. Section 5 protects special or local laws, special jurisdiction or powers, and special forms of procedure unless the BNSS contains a specific provision to the contrary.

Section 531 of the BNSS contains the repeal and savings provisions. In particular, investigations, inquiries, trials, applications and appeals pending immediately before commencement of the BNSS continue under the Code of Criminal Procedure, 1973 as provided by Section 531(2)(a). Accordingly, the date and procedural history of a particular FCRA matter can be important when identifying the applicable procedure.

Section 43 compared with inspection and seizure under the FCRA

Investigation under Section 43 should not be confused with the inspection and seizure provisions in Chapter V. Section 23 deals with inspection of accounts or records where the Central Government has recorded grounds to suspect contravention. Section 24 deals with seizure of accounts or records in the circumstances stated there. Section 43, by contrast, concerns investigation of an offence punishable under the Act by an authority specified by the Central Government.

Related provisions

• Section 33: punishment relating to false statements, declarations or delivery of false accounts.
• Section 35: punishment for accepting or assisting acceptance of foreign contribution in contravention of the Act or rules or orders where the provision applies.
• Section 37: penalty for offences for which no separate punishment is provided.
• Section 39: offences by companies.
• Section 40: bar on prosecution except with the previous sanction of the Central Government or an authorised officer.
• Section 41: composition of specified offences, subject to the statutory conditions.
• Section 42: power to call for information or documents in the circumstances stated in that section.

Practical points for reading Section 43

When Section 43 arises in an actual matter, the statutory text should be read together with the notification specifying the investigating authority, the nature and amount of the alleged foreign contribution, the place where the cause of action arose, the relevant penal provision, Section 40 where prosecution sanction is in issue, and the procedural law applicable having regard to the BNSS commencement and savings provisions.

This page is a general legal information resource. The facts, dates, applicable notification and procedural stage of an individual case can materially affect the legal position.

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