Read Time: 13 minutes

Synopsis

The Supreme Court has given a split verdict on interpretation and applicability of Section 17A of the Prevention of Corruption Act, introduced in 2018, mandating prior approval of the competent authority before initiating enquiry, inquiry or investigation against a public servant.

A bench of Justices Aniruddha Bose and Bela M Trivedi differed on the issue while dealing with the question raised by former Andhra Pradesh Chief Minister N Chandrababu Naidu challenging validity of an FIR registered on December 9, 2021 and his arrest on September 9, 2023 in the skill development scam case.

Both the judges, however, concurred to hold that the remand order of the appellant did not suffer from any illegality as he was also accused of offences under the Indian Penal Code.

The bench accordingly referred the matter to the Chief Justice of India for a decision on setting up a larger bench to decide the matter in view of contrary opinions rendered in the case.

In his judgment, Justice Bose held, "If an enquiry, inquiry or investigation is intended in respect of a public servant on the allegation of commission of offence under the 1988 Act after Section 17A thereof becomes operational, which is relatable to any recommendation made or decision taken, at least prima facie, in discharge of his official duty, previous approval of the authority postulated in sub¬section (a) or (b) or (c) of Section 17A of the 1988 Act shall have to be obtained. In absence of such previous approval, the action initiated under the 1988 Act shall be held illegal."

In her separate and dissenting judgment, Justice Trivedi said, "Having considered the different contours of Section 17A, I am of the opinion that Section 17A would be applicable to the offences under the PC Act as amended by the Amendment Act, 2018, and not to the offences existing prior to the said amendment. Even otherwise, absence of an approval as contemplated in Section 17A for conducting enquiry, inquiry or investigation of the offences alleged to have been committed by a public servant in purported exercise of his official functions or duties, would neither vitiate the proceedings nor would be a ground to quash the proceedings or the FIR registered against such public servant."

She also held the protection cannot granted to public servants for the alleged acts, which were not prima facie in discharge of official function or duties.

"Any other interpretation would certainly tantamount to scuttling the investigation at a very nascent stage. Such could neither be the intention of the legislature nor could such provision be interpreted in the manner which would be counter productive or frustrating the very object of the PC Act," Justice Trivedi added.

The offences in case of appellant related to setting up of six clusters of skill development centres in Andhra Pradesh during his tenure as Chief Minister of Andhra Pradesh between 2014 to 2019.

The appellant contended non-compliance of Section 17 A, made the entire proceedings before the Special Judge as non est. The State, on the other hand, claimed a regular inquiry was already ordered on June 05, 2018 regarding the corruption allegations, prior to July 26, 2018, the date notified for the implementation of Section 17 A.

Justice Bose, however, concluded no enquiry was initiated before incorporation of Section 17A in the statute book in the case of the appellant. "In the FIR or the preliminary enquiry report dated 09.12.2021, there was no reference to the communication of 05.06.2018. I, accordingly, hold that before Section 17A of the 1988 Act had become operational," he said.

He said the steps taken against the appellant under the 1988 Act ought to be invalidated as the same did not commence with prior approval as laid down under Section 17A of the 1988 Act.

"I am not satisfied, at this stage, that the 1988 Act offences are so dominant in the set of allegations against the appellant that once I consider the allegations against the appellant de hors the alleged offences under 1988 Act, the allegations of commission of the IPC offences would automatically collapse," Justice Bose said.

He held that the appellant cannot be proceeded against for offences under the Prevention of Corruption Act, 1988 as no previous approval of the appropriate authority has been obtained. However, Justice Bose granted liberty to the state to apply for such approval.

He too declined to interfere with the remand order of September 10, 2023.

"I am of the view that the Special Judge had the jurisdiction to pass such order even if the offences under the 1988 Act could not be invoked at that stage. Lack of approval in terms of Section 17A would not have rendered the entire order of remand non est," he said.

Justice Bose said the appellant, however, could be proceeded against before the Special Judge for allegations of commission of offences under the Indian Penal Code, 1860 for which also he has been implicated.

Justice Trivedi, on her part, said absence of approval before conducting any enquiry or inquiry or investigation into an offence alleged to have been committed by a public servant, as contemplated in Section 17A could never be the ground for quashing the FIR registered against the public servant or the proceedings conducted against him, more particularly when he is also charged for the other offences under the IPC in respect of the same set of allegations.

"There are other important facets contained in Section 17A, like whether the alleged offence is relatable to the recommendation made or decision taken by the public servant or not, and whether such recommendation or decision was made or taken in discharge of his official functions or duties or not etc. Such facets could be examined only when the evidence is led during the course of trial," she said. 

"The alleged acts which prima facie constitute the offences, though done under the purported exercise of official function or duty, could not fall within the purview of Section 17A. The Protection sought to be granted to a public servant under Section 17A could not be extended to his acts which prima facie were not in discharge of his official functions or duties," she added.