Section 17 A of the Prevention of Corruption Act – A Veil                            Written by Suganthan N.S. Advocate. Introduction: The interpretation of Section 17 A of the Prevention Act, 1988, according to me correlates ethics of Public Servants. Hence, it would be apposite to quote a Thirukkural (poem) for a better commencement of the Article

Section 17 A of the Prevention of Corruption Act – A Veil

                           Written by Suganthan N.S. Advocate.

Introduction:

The interpretation of Section 17 A of the Prevention Act, 1988, according to me correlates ethics of Public Servants. Hence, it would be apposite to quote a Thirukkural (poem) for a better commencement of the Article. Here, I get on the road with Thirukkural as under:

Though her that bore thee hung’ring thou behold, no deed Do thou, that men of perfect soul have crime decreed.(Kural 656) Explanation:

Though a minister may see his mother starve; let him do not act which the wise would (treat with contempt).

Section 17 A was introduced in the Act by way of amendment, as per Act 16 of 2018, with effect from 26.07.2018. This Section was incorporated with the intention to protect the upfront public servants from superfluous legal proceedings, if initiated it would create hiatus in their work and also create pestering on them.

Section 17 A – Previous Approval:

It would be relevant at this juncture to extract the provisions intact to proceed with the explanation. The extract of the Section 17 A is as under:

17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.– (1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval-

 

• in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;
• in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;
• in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month. 

The above section renders a candid clarification to us that no police officer should conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the Prevention of Corruption Act,

• without the previous approval, if the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties;
• the previous approval shall be obtained from the Union Government if the public servant is or was employed in Union Government at the time of alleged offence or the previous approval shall be obtained from the State Government if the public servant is or was employed in State Government at the time of alleged offence;
• In case of any other public servants, the previous approval shall be obtained from the authority who is competent to remove him from his office at the time of alleged offence.
• Exemption: The provision has rendered exemptions for obtaining previous approval. They are
  1. No previous approval is necessary if arrest of a person on the spot on the charge of accepting (trap cases)
  2. or attempting to accept any undue advantage for himself or for any other person

 

• Limitation: The provision has rendered time limit which shall be taken by the authority concerned to convey its decision on granting of approval is three months. The authority may, for reasons to be recorded in writing, extend the above time for a further period of one month, therefore, in total four months.

Section 6 A of the Delhi Special Police Establishment Act, 1946, a pari materia provision to Section 17 A of the Prevention of Corruption Act, 1988:

Section 6 A of the Delhi Special Police Establishment Act, 1946 (as inserted by Act 45 of 2003) is extracted hereunder for reference: –

“Section 6A -Approval of Central Government to conduct inquiry or investigation. – (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 except with the previous approval of the Central Government where such allegation relates to – 

(a) the employees of the Central Government of the level of Joint Secretary and above; and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government. 

(2) Notwithstanding anything contained in sub- section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988.”

The Constitutional Bench of the Hon’ble Supreme Court in the case of Subramanian Swamy Vs. Director, Central Bureau of Investigation and another reported in (2014) 8 scc 682 has held the above Section 6 A of the Delhi Special Police Establishment Act, 1946 (as ins. By Act 45 of 2003) is void for the reasons that

• 6-A requiring approval of Central Government to conduct any inquiry or investigation into any offences alleged to have been committed under PC Act, 1988 by employees of Central Government of level of Joint Secretary and above. Such Classification on basis of status in Government Service is impermissible under Art.14.
• 6-A advances public mischief and protects crime doers by thwarting independent, unhampered, unbiased, efficient and fearless inquiry/investigation to track down corrupt public servants.
• Distinction sought to be made on ground that such officers were “decision-making officers” also does not hold good since there is no rational basis to classify two sets of public servants on ground of “decision-making”.
• Very same high-ranking bureaucrats would decide whether CBI should initiate inquiry against them or not.
• Classification based on intelligible differentia where one set of bureaucrats of Joint Secretary level and above working with Central Government are afforded protection, while same level of officers working with the State Government are deprived of protection cannot be sound.
• Object of S.6-A, DSPE Act, 1946 itself is discriminatory since it sidetracks fundamental objective of PC Act, 1988 to deal with corruption and act against senior public servants.

Therefore, after the judgment stated supra, the Parliament consciously, after careful consideration, has resurrected through Section 17 A in the Prevention of Corruption Act, 1988 (Act 16 of 2018), after rectifying the anomalies of Sec 6A of the Delhi Special Police Establishment Act, 1946 (as ins. By Act 45 of 2003), in order to protect the honest legislators or ministers from facing superfluous inquiry, enquiry, litigations, which enables the legislators to take strenuous efforts in implementation of schemes and can proceed with undaunted decisions.

Approval under Section 17 A and Sanction under Section 19:

The concept of Approval is a threshold formula, however, Sanction is need only at the stage of taking cognizance of a case by the Court. Precisely, obtaining of a previous approval is the first step where no police officer shall conduct any enquiry or inquiry or investigation without the previous approval. On the other hand, previous sanction is required at the stage where no court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction. In simple terms, Previous Approval should be there at inception, however, Previous Sanction should be required for taking cognizance.

Appropriate Authority for granting previous Approval under Section 17 A:

We would able to grab intention of the Clause (a) and Clause (b) of Subsection (1) of Section 17 A easily on reading the provision itself that if a public servant has committed an offence relating to the affairs of the Union, then the previous approval shall be obtained from the Central Government, which means that previous approval from the authority who is responsible for removal of the public servant in Central Government  and if a public servant has committed an offence relating to the affairs of a State, then the previous approval shall be obtained from the State Government, which means that previous approval from the authority who is responsible for removal of the public servant in State Government.

However, support of interpretation is required to understand Clause (c) of Subsection (1) of Section 17 A. The extract of Clause (c) is as under:

(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed.

Any other person in Clause (c) stated supra included persons other than those who are stipulated in Clause (a) and

Clause (b) of Subsection (1) of Section 17, which includes the Members of Parliament, Ministers of Union Government, Members of Legislative Assembly, Ministers of State Government and also other persons as stipulated in Section 2 (c) of the Prevention of Corruption Act, 1988 and Section 21 of the Indian Penal Code.

Therefore, public servants in clause (c) probably indicates the legislators, which includes Members of Parliament, Ministers of Union Government, Members of Legislative Assembly and Ministers of State. The removal authority for the legislators is the President and Governor respectively.

It would be apposite to extract Articles 75(2), 164 (1), 103 and 192 of the Constitution of India. The extract of the said Articles are as under:

• Article 75. Other provisions as to Ministers. — (2) The Ministers shall hold office during the pleasure of the President.
• Article 164. Other provisions as to Ministers.—(1) The Chief Minister shall be appointed by the Governor and the other

Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: 

Provided that in the States of 1 [Chhattisgarh, Jharkhand], Madhya Pradesh and  [Odisha], there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work.

• Article 103. Decision on questions as to disqualifications of members. — (1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of article 102, the question shall be referred for the decision of the President and his decision shall be final. (2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.
• Article 192. Decision on questions as to disqualifications of members. — (1) If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final. (2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.

Notable Case Laws regarding Section 17 A :

• Section 17 A is not retrospective in nature:

 

State of Rajasthan V. Tejmal Choudhary reported in 2022 LiveLaw (SC) 158:

 

The Hon’ble Supreme Court has observed that Section

17 A of the Prevention of Corruption Act, 1988 is not retrospective in nature. Relevant Paragraphs 11 and 12 are extracted as under:

 

“11. It is a well settled principle of interpretation that the legislative intent in the enactment of a statute is to be gathered from the express words used in the statue unless the plain words literally construed give rise to absurd results. This Court has to go by the plain words of the statute to construe the legislative intent, as very rightly argued by Mr. Roy. It could not possibly have been the intent of the legislature that all pending investigations upto July, 2018 should be rendered infructuous. Such an interpretation could not possibly have been intended. 

12. In his usual fairness, learned Senior Counsel appearing on behalf of the respondent does not seriously dispute the proposition of law that Section 17A does not have retrospective operation. Learned Senior Counsel, however, argues that the Court might have looked into the merits and, in particular, the fact that investigation had ultimately been closed. We need not go into that aspect since the High Court has quashed the proceedings 5 only on the ground of permission not having been obtained under

Section 17A of the PC Act.”

 

• Section 17 A is necessary, however, Hon’ble Mr. Justice Kurian Joseph referred to validity of Section 17 A when court orders:

 

Yashwant Sinha and others V. CBI reported in (2020) 2 SCC 338:

 

Para 119:

 

“Even proceeding on the basis that on petitioners’ complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to Section 17A. I am, therefore, of the view that though otherwise the petitioners in Writ Petition (Criminal) No. 298 of 2018 may have made out a case, having regard to the law actually laid down in Lalita Kumari (supra), and more importantly, Section 17A of the Prevention of Corruption Act, in a Review Petition, the petitioners cannot succeed. However, it is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent from taking action on Exhibit P1-complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17A of the Prevention of

Corruption Act.”

 

 

• Section 17 A bar does not applicable to enquiry initiated upon the order of the Court under Article 226 of the Constitution of India:

 

Anil Vasantrao Deshmuk V. The State of Maharashtra and others reported in 2021 Cri LJ 4002 = 2021 SCC OnLine Bom 1192:

 

The Hon’ble Division Bench of Bombay High Court after referring catena of Judgments of Hon’ble Supreme Court has held that Section 17 A bar would not apply when the court finds it expedient to exercise the jurisdiction under Article 226 of the Constitution, which was also upheld by the Hon’ble Supreme Court on 18.08.2021 in SLP (Crl) No. 5821 of 2021. The relevant paragraphs are extracted as under:

 

“81. We are not persuaded to adopt a doctrinaire approach and delve into the aspect of binding efficacy of the afore-extracted observations in the case of Yashwant Sinha (supra). In our considered opinion, from the perusal of the aforesaid observations, it becomes abundantly clear that two factors weighed with the Supreme Court. First, in the context of the nature of allegations of corruption against a public figure, the writ petitioners could not have sought the relief of registration of FIR directly. Second, though the petitioners were aware of the impediment for the investigating agency in entering upon the investigation, in view of the bar under Section 17A, yet no relief was sought in that behalf. In this backdrop, the observations were made that even if it is assumed that the allegations in the petitioner’s complaint disclosed congnizable offences and the Court must direct the registration of the FIR, would it not be a futile exercise having regard to Section 17A. 

82. In our understanding, the afore-extracted observations in the case of Yashwant Sinha (supra), cannot be read de hors the context in which those observations were made. The aforesaid observations, with respect, do not lay down a proposition that even when a constitutional Court is convinced about the justifiability of the cause and necessity of a fair and impartial investigation by an independent agency, Section 17A operates as a fetter on its power to order such investigation. On a proper construction, in our view, the aforesaid observations underscore the restrictions to inquire and investigate qua the investigating agency and not against the Court which finds it expedient to exercise the jurisdiction under

Article 226 of the Constitution.”

 

• Special Court is not barred under Section 17 A from initiating an enquiry:

 

Shri Baini Prasad Chansoriya V. The State of Madhya Pradesh through Principal Secretary and Another reported in 2022 LiveLaw (MP) 280:

 

The Hon’ble Madhya Pradesh High Court held that a special court constituted under the Prevention of Corruption Act is not barred under Section 17 A of the Act from initiating an enquiry on receipt of complaint under Section 156(3) CrPC. Relevant Paragraphs 10.4 to 11 are extracted as under:

 

“10.4 Thirdly, Sec. 17-A does not bar the Special Court from conducting enquiry or inquiry (as defined in Sec. 2(g) Cr.P.C.). Argument may be raised that though Special Court is not statutorily barred from conducting enquiry/inquiry but occasions may arise where the Special Court for aid and assistance may direct Police to conduct enquiry/inquiry leading to an impasse in the face of statutory bar u/S.17-A prohibiting Police Officer from proceeding ahead. True it is that Police Officer alone has been restrained from conducting enquiry/inquiry/investigation but the said argument can be put to rest by the well established principle of law that what cannot be done directly in law also cannot be done indirectly. [See: Gian Singh Vs. State of Punjab and another, (2010) 15 SCC 118 Para 7). Therefore, the enquiry/inquiry can very well be conducted u/S. 17-A by Special Court but without involving the police. The Special Court is thus not prevented from conducting enquiry/inquiry at its own level while dealing with an application u/S. 156(3) Cr.P.C. but without assistance of the police. In this manner, the sweep, extent and object of Sec. 17-A remains unoffended.

 

• Thus, the verdict of Anil Kumar (supra) will not come in the way of trial Court while deciding an application u/S 156(3) Cr.P.C. for the reason of Anil Kumar (supra) not being the law qua Sec. 17A and also that the legal bar contained therein restrains the Police but not the Court. Moreso, the decision in Anil Kumar (supra) has been doubted by Apex Court in Manju Surana (supra) inter alia for the reason of Anil Kumar (supra) failing to consider three – Judge Bench verdict in R.R. Chari Vs. State of U.P., (AIR 1951 SC 17 Cr.R. No.1629/2022 207) wherein the Apex Court profitably quoted its earlier verdict in Subramanian Swamy Vs. Monmohan Singh and another, 2012 (3) SCC 64. Pertinently Subramanian Swamy (supra) at para 35, extracts the Three Judge Bench decision in R.R. Chari (supra) which is reproduced as follows:- In R. R. Chari v. State of U.P., the three Judge Bench approved the following observations made by the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs Vs. Abni Kumar Banerjee (supra): “What is taking cognizance has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under section 190(1)(a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, – proceeding under section 200 and thereafter sending it for inquiry and report under section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. ordering investigation under section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.” [Emphasis Supplied] 

 

• Thus, non-consideration of R.R. Chari (Three – Judge Bench decision) in Anil Kumar (Two- Judge Bench decision) impelled the Apex Court in Manju Surana to doubt the precendential value Anil Kumar before referring the case to larger Bench. 18 Cr.R. No.1629/2022 7 Reverting to the factual matrix attending the present case, it is seen that learned Special Judge rejected the application u/S. 156(3) without conducting any enquiry or inquiry (as defined u/S2(g) Cr.P.C.) for at-least coming to a tentative view that the application u/S. 156(3) contains allegations which reveal commission of cognizable offence punishable under PC Act or not arising from decision taken or recommendation made. Thus reliance placed by learned Special Judge on the decision of Anil Kumar (supra), for the reasons mentioned (supra) is misplaced. 

 

11. This Court thus finds the following jurisdictional errors in the impugned order:

• Learned Special Judge failed to conduct enquiry to come to a tentative finding as to whether the application u/S 156(3) disclosed commission of cognizable offence punishable under PC Act or not arising from acts of recommendation made or decision taken.
• Learned Special Judge failed to see that statutory prohibition u/S 17- A in conducting enquiry/inquiry/investigation is against the Police Officer but not the Court (to the extent of enquiry or inquiry).
• Reliance placed upon Section 19(1) of PC Act is misdirected since the relevant provision is Section 17-A.
• The decision of Apex Court in Anil Kumar (supra) was not a precedent in respect of Section 17-A of PC Act.”

 

• Previous Approval under Section 17 A not necessary- when:

 

In Devender Kumar v. Central Bureau of Investigation, 2019 (1) Crimes 726, the Hon’ble Delhi High Court has observed as follows:

 

“Section 17A as it reads and the legislative intent in its enactment can only be to protect public servants in the bonafide discharge of official functions or duties. However, when the act of a public servant is ex-facie criminal or constitutes an offence, prior approval of the Government would not be necessary”.

 

• Previous Approval under Section 17 is not a blanket protection:

 

In T.O.Sooraj v. State of Kerala : 2021 SCC OnLine Ker 2896, the Hon’ble Kerala High Court has held as follows:

 

“The expression “discharge of his official functions or duties” in Section 17A of the Act reflects the legislative intent that the protection envisaged is not a blanket protection. The purpose is to protect an honest and responsible public servant if the recommendation made or decision taken by him is in discharge of his official functions or duties. As a necessary corollary, previous approval is required only if the recommendation made or decision taken is directly concerned with the official functions or duties of the public servant. When a recommendation or decision is made by a public servant, which is not directly and reasonably connected with his official functions or duties, he is not entitled to get the protection under Section 17A of the Act”.

 

• Previous Approval under Section 17 not necessary in Disproportionate Asset Cases:

 

In Dhandapani v. Vigilance Commissioner : 2021 SCC OnLine Mad 1396 = (2021) 2 LW 638, the Hon’ble Madras High Court has held as follows:

“12. In the case on hand, the petitioner has not been charged with any offence relatable to any recommendation made or decision taken by him while discharging his official function or duties. But, on the other hand, FIR came to be registered for allegedly acquiring assets disproportionate to his own source of income, during the check period between 01.01.2013 and 29.02.2020. Considering the above, I am of the view that prior approval under Section 17 (A) of Prevention of Corruption Act is not at all necessary and that the said provision is not applicable to the disproportionate assets cases.

 

13. More over, as rightly pointed out by the learned Additional

Public Prosecutor, this Court in W.P.(MD) No. 15845 of 2020, on 23.12.2020, after referring to the decisions of the Delhi High Court and Chhattisgarh High Court reported in (2019) 1 Crimes 726 (HC) (Devender Kumar v. CBI and (2020) 0 Supreme (CHH)

149, Sathish Pandey v. Union of India, has specifically held that Section 17(A) of Prevention of Corruption Act cannot be made applicable to those cases where the act of the public servant that amounts to an offence, appears on the face of it lacking in good faith. Considering the above provision and the above decision, it is cleat that Section 17 (A) has been inserted only to give protection to the honest officers, but when the act of a public servant amounts to or constitutes an offence by itself, prior sanction or approval from the Government would not be necessary. Viewing from this angle also, I hold that Section 17 (A) of Prevention of Corruption Act has no application to the case no hand. As already pointed out, since FIR has already been registered and is pending investigation, the relief sought for by the petitioner has become infructuous. Considering the above, this Court decides that the Writ Petition is devoid of merits and the same is liable to be dismissed.”

 

Conclusion :

Though, Section 17 A was introduced to protect the honest public servants from superfluous inquiry, enquiry, and investigations etc., the bonafideness, according to my opinion, whether the protection given really to honest public servant or not is subject to the Judicial Scrutiny through Constitutional Courts.