Law Web: Whether Prior Approval For Investigation U/S 17A of Prevention of Corruption Act is Necessary if Act Of Public Servant Is Ex-Facie Criminal?

The reasonable conclusion that can be arrived at regarding the scope

of section 17A is that prior approval under section 17A for conducting any

enquiry, inquiry or investigation is required only when the offence alleged is

relatable to a decision taken or recommendation made by the public authority

and it involves a debatable or suspicious or doubtful recommendation made

or decision taken by the authority. Acts, which are ex facie criminal or

constitute an offence do not require approval under section 17A of

P.C.Act.This legal proposition, seems to be clear from the statute and is in

consonance with the spirit of the Prevention of Corruption Act and also in

consonance with the legal principles laid down in relation to section 197

Cr.P.C.

26. Applying the above legal principles, I am of the firm opinion that in the

cases at hand, which involve allegation of falsification of accounts, breach of

trust and misappropriation of funds or acts which are exfacie criminal, no

prior approval under section 17A of Prevention of Corruption Act is required.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.M.C Nos.7542/2018 & others 9

SHANKARA BHAT, Vs STATE OF KERALA

PRESENT

MR. JUSTICE SUNIL THOMAS

27TH DAY OF AUGUST 2021

COMMON ORDER

[Crl.MC Nos.7542/2018, 3960/2019, 5833/2019, 6212/2019, 464/2020,

8308/2018]

In all the Crl.M.Cs, the respective petitioners stand arrayed as accused

in different crimes, registered against each of them, under the provisions of

Prevention of Corruption Act,1988. They challenge the prosecution

proceedings launched against them.

2. Crl.M.C.No.7542/2019 is filed by the Secretary of Mughu Service

Co-operative Bank, Kasaragod. Crl.M.C.No..8308/2018 is filed by the Director

Board Members of the above Co-operative Bank. The petitioner in Crl.M.C

No.7542/2018 is the second accused and the petitioners in

Crl.M.C.No.8308/2018 are the accused Nos. 5 to 10 and 12 to 14 in a

complaint filed before the Enquiry Commissioner and the Special Judge,

Thalassery, under section 190 of the Code of Criminal Procedure, alleging

commission of offences punishable under section 13(1)( c) (i) and 13 (1) (d)

(ii) read with section 13(2) of the Prevention of Corruption Act 1988. The

petitioners in all the other Crl.M.Cs are respectively accused Nos.1,3 , 8 and

9 in FIR No.1/2018 of VACB Ernakulam unit, for offences punishable under

sections 13(2) read with 13 (1)(d) of the Prevention of Corruption Act 1988

and Sections 201, 204, 464, 465,471 and section 120B of IPC.

3. In the complaint laid against the petitioners in Crl.M.C.Nos.7542/2018

and Crl.MC.8308/2018, the defacto complainant alleged that officers and the

Director Board members of the Co-operative bank, had committed financial

irregularities. A quick verification was ordered by the special judge. Relying

on the report submitted by the Vigilance, the court by an order dated

17/9/2018 directed the Vigilance to register a crime and to conduct

investigation. By the above order, it was held that the offences alleged

against the accused was one for misappropriation and was not relatable to

any recommendation made or decision taken by the public servant in

discharge of his official function and hence the previous approval under

section 17A of the Prevention of the Corruption (Amendment) Act 2018 was

not required. This order is under challenge in the above Crl.M.Cs at the

instance of the accused, inter alia, on the ground that section 17A was

applicable to the facts of the case and the court below was not justified in

dispensing with the approval under section 17A of the amended Prevention of

Corruption Act.

4. In the remaining Crl.M.Cs, FIR was laid pursuant to a complaint filed

by a public interest litigant, before the Vigilance and Special Court, alleging

misappropriation of funds. VC No.1/2018 was registered by the VACB,

Ernakulam Unit, for the offences mentioned above and the investigation is

progressing. The above proceeding is challenged by the accused contending

that previous approval under section 17A of the Prevention of Corruption Act,

2018 was not obtained and hence the prosecution was bad. It was also

contended that the allegations of fraud and financial irregularities raised in

the private complaint were false and proceedings were launched with

malafide motives. It was further contended that, there was no material to

establish the alleged offences attributed to the accused.

5. Essentially, the question that arises in all the cases is whether

section 17A of the Prevention of Corruption Act, 2018 is an omnibus pre

requisite, applicable to every investigation, enquiry or inquiry. The specific

contention of the accused was that, section 17A was intended to prevent

misuse of the provisions of the Prevention of Corruption Act, by using it

against honest officers and hence, a proceeding launched sans such

statutory requirement was bad.

6.The question whether sanction under section 197 Cr.P.C.is a

mandatory requirement preceeding every action taken by the authority has

been the subject matter for consideration in a catena of decisions. Section

197 of the Cr.P.C.provides that, no court shall take cognizance of an offence

involving a public servant who was accused of an offence alleged to have

been committed by him, while acting or purporting to act in discharge of his

official duty, except with the previous sanction of the concerned competent

authority. The question whether every act done by the public servant called

for a protection under section 197 of the Cr.P.C.was the subject matter of

those decisions.

7. One of the earliest decisions of the Supreme Court on this point was

in Baijnath Gupta & Ors v.State of Madhya Pradesh (AIR 1966 SC 220).

The question that came up before the Supreme Court was, whether a public

servant charged with offences punishable under section 477A read with

sections 109 and 409 IPC required previous sanction from the competent

authority, as contemplated under section 197 of Cr.P.C.,1898. Supreme

Court referred to two earlier decisions in Hori Ram Singh v. Emperor (AIR

1939 SC 43) as well the decision reported in H.B.Gill & Another v. the

King(AIR 1948 PC 128). In the latter case, the accused was charged under

section 161 of IPC with taking bribes and under section 120B IPC with

criminal conspiracy. On the question whether sanction was necessary under

section 197(1) Cr.P.C., it was held by the judicial committee that, there was

no difference in the scope of that section and the one under section 270 of

the Government of India Act, 1935. In Hori Ram‘s case (supra), it was held

that a public servant can be said to act or purported to act in discharge of

his official duty, if it was such as to lie within the scope of his official duty.

Thus act of a judge receiving bribe, though the judgment which he delivers

may be an official act, taking bribe does not become an official act, it was

held. It was also held that Government Medical officer does not act or

purport to act as a public servant, in picking the pocket of a patient whom he

was examining, though examination itself may be such an act. The court laid

down the crucial test to determine whether a public servant, acts or purports

to act in official capacity by holding that, if challenged, he can reasonably

claim that, what he did was, by virtue of his office.

8. This view was aproved in R.W Mathams v. State of West Bengal

(1954 AIR 455), wherein it was held that it was not every offence committed

by public servant that required sanction or prosecution. Under section 197(1)

of the Code of Criminal Procedure, it was not every act done by him while

he was actually engaged in the performance of the official duties; that, but if

the act complained of, was directly concerned with his official duty and, if

questioned, it could be claimed to have been done by virtue of the office,

then sanction would be necessary. It is the quality of the act that was

important and if it falls within the scope and ambit of his official duties,

protection contemplated under section 197 of Cr.P.C. will be attracted.

9.In S.B.Saha & Others v. M.S.Kochar (AIR 1979 SC 1841), a three

judges Bench of the Supreme Court had occasion to consider the question

whether in the case of alleged offences under criminal conspiracy and

breach of trust, sanction under section 197(1) of the Criminal Conspiracy

was required. Supreme Court held that the words “ any offence alleged to

have been committed by him while acting or purporting to act in discharge of

his official duty” employed in section 197 (1) are capable of a narrow as well

as wide interpretation. It was the quality of the act that was important and if

it falls within the scope and range of “official duties”, the protection

contemplated under section 197 Cr.P.C. will be attracted. It was held that for

prosecuting public servant for dishonest misappropriation or conversion of

goods, which they had seized, sanction was not essential. In Harihar

Prasad v. State of Bihar (1972 3 SCC 89) it was held that sanction under

section 197 Cr.P.C. for prosecution of offence under section 409 IPC, was

not necessary. In Om Prakash Gupta v. State of U.P. (1957 SCR 423), it

was held that public servant committing criminal breach of trust does not

normally act so, in his capacity as a public servant. In Prakash Singh Badal

& another v. State of M.P.( AIR 2007 SC 1274), Supreme court had

occasion to consider the scope and ambit of expression “official duty” that

appears in section 197 of the Cr.P.C. It was held that section 197 extents only

to those acts or omissions done by the public servant while discharging the

official duty. It was held that on facts,if it was prima facie found that the act

or omission for which the accused was charged, had reasonable connection

with the discharge of his duty, then it must held to be official, to which,

applicability of section 197 Cr.P.C.cannot be disputed.

10. In State of U.P. v.Paras Singh( 2009 (6) SCC 372), the question

that arose was whether sanction was required for prosecution of a public

servant charged with sections 409 and 468 of IPC. It was held that, the use

of expression “official duty” implies that, act or omission must have been

done by the public servant in the course of his service and that it should have

been in discharge of his duties. Court relied on the decision of the Supreme

Court in Matajog Dobey v. H.C.Bhari ( AIR 1956 SC 44), wherein it was

held that the offence alleged to have been committed by the accused must

have something to do or must be related in some manner with the discharge

of official duty. There must be a reasonable connection between the act and

the discharge of the official duty. The act must bear such relation to duty that

the accused could lay a reasonable claim but not a pretended or fanciful

claim that he did it in the course of performance of his duty. In

Shambhoonath Mishra v. State of U.P. & others (AIR 1997 SC 2102), the

question that arose was whether the prosecution of an accused charged with

offences of fabrication of records and misappropriation of public fund needs

sanction under section 197(1) of the Cr.P.C. It was held that, it was not an

act done in discharge of his official duty and fabrication of record and

misappropriation of funds do not form part of his duty. Hence, sanction was

not required. Same issue was considered by the Supreme Court in Rajib

Ranjan & Others v. R.Vijayakumar (2015 (1) SCC 513), wherein it was held

that even while discharging the official duties, if a public servant enters into

criminal conspiracy or indulges in criminal misconduct, such misdemeanor

on his part is not to be treated as an act in discharge of his official duties

and therefore, the provisions of section 197 Cr.P.C.will not be attracted.

11. The question, whether the prosecution of a public servant

charged with an offence under IPC for breach of trust needs sanction, was

the subject matter of consideration in Punjab State Warehousing

Corporation v. Bhushan Chander & another (AIR 2016 SC 3104). In

State of Kerala v. V.Padmanabhan Nair (AIR 1999 SC 2405) the question

was whether prosecution for charges under section 406 IPC read with section

120B of IPC requires sanction. It was held that prior sanction was not

required for prosecution. The same position was reiterated in

Dr.Subramanian Swamy v. Director CBI and another (AIR 2014 SC 2140).

In Manju Surana v.Sunil Arora (2018 2 KLT 315) the question whether

sanction for prosecution of the public servant within section 197 of Cr.P.C. on

an allegation of corruption was required before setting in motion even the

investigating process under section 156(3) of the Code of Criminal

Procedure,1973 was referred to a larger Bench and is pending .

12.The above decisions consistently laid down a clear division between

those acts which constitute an offence and those acts, though done while

discharging the official duties of the public servant, does not ipso facto

constitute an act done or purported to be done in discharge of his official

duties, as contemplated under section 197 (1) Cr.P.C. The law laid down

seems to be consistent that if a criminal offence is committed by a public

servant, which is unconnected with his duty, sanction under section 197 of

Cr.P.C.was not required, since it undoubtedly does not form part of his

official duty or purported to be done, in discharge of his official duty.

13. In the back ground of the law laid down in that context, the

contention, whether prior approval as contemplated under section 17A introduced by 2018 Amendment to the Prevention of Corruption Act is required in respect of every act which form subject matter of prosecution has to be considered. In this context, it is essential to refer to the exact words employed by the statute which reads as follows;

“S.17ANo 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 previous approval.”.

Under section 17A, which was inserted by Act 16 of 2018, and which came

into force with effect from 26/7/2018, the previous approval by the concerned

authorities is essential. The crucial question that arises for consideration in

these proceedings is whether previous approval from the competent authority

need to be obtained for every enquiry, inquiry or investigation, into every

offence committed by the public servant. The crux of the issue is whether

the above provision is an omnibus, all pervasive pre requisite for every

enquiry or inquiry or investigation into every act done by the public servant

in discharge of his official functions.

14. No doubt, Section 197(1) Cr.P.C.and Section 17A of the P.C.Act

operate in two different fields and in distinct situations. Apparently, it has

nothing in common at all. However, consistent principle laid down by the

decisions referred to supra, in relation to any offence committed by a public

servant while “acting or purporting to act in discharge of his official duty” can

be profitably adverted to answer the legal issue involved in relation to section

17A of the P.C.Act. The decisions referred to supra are based on the principle

that the commission of crimes by a public servant which had no connection

with his official duty, cannot be considered as one within the scope of section

197 Cr.P.C. Extending the principle to S.17A of P.C.Act, it can be said that

offences like misappropriation,falsification of accounts, cheating, criminal

breach of trust, receiving bribes,etc.are beyond the scope of the provision.

15. Statutorily, cases involving arrest of person on the spot on charge

of accepting or attempting to accept any undue advantage for himself or any

other person, has been exempted from the purview of the above previous

approval. This is justifiably so, since swift and prompt action is liable to be

taken, while apprehending a person who is stated to have demanded and

received bribe and the arresting officer cannot wait for previous approval.

16. While considering the scope of the section 17A of PC Act, the

issue has to be analysed in the background of the views expressed at the

time of drafting of the enactment. This is referred to analyse the background

in which section 17A was sought to be introduced and also to analyse

whether it cover every enquiry, inquiry or investigation. The Law Commission

of India in its 254th report had referred to the scope of section 17A(1) of the

Prevention of Corruption Amendment Bill dated 2013. After referring to the

proposed section 17 A(1), the Law Commission in Chapter 7, at para 7.1.2.,

opined that the proposed section 17A(1) introduced a limited requirement of

previous approval to prosecute persons, who are or were alleged to have

been public servants at the time of the alleged offence. It was held that this

was in line with the provisions of Section 197 Cr.P.C.and the scheme of

section 14 of the Lokpal Act. It was opined that the proviso to proposed to

section 17 A(1) was similar to clause 2 of the repealed section 6A of the

Delhi Special Police Establishment Act, 1946, which provided that in certain

factual scenario, no sanction previous approval would be necessary.

However,the proviso to the proposed section 17A(1) was narrower than

section 6A of the Delhi Special Police Establishment Act, requiring that even

if a person is caught on the spot while accepting illegal gratification., it would

have to be shown by the prosecution that it was intended that such

acceptance was consequential to a relevant public function or activity being

performed.

17. In the proviso to the proposed section 17A (1), it was provided that

the taking of bribe must have been with the intention that a relevant public

function or activities shall be performed improperly, either by himself or by

another public servant. It was held by the law commission that the above

provision imposed a duty on the prosecution not only to show that the bribe or

illegal remuneration/consideration was obtained, that it was in consequence

of a relevant pubic function or that duty shall be performed improperly, either

by himself or any public servant. Hence, it was suggested that the above part

in the proviso shall be omitted. Except that, no other suggestion was made by

the Law Commission, in relation to section 17A. The above report does not

throw any light as to the scope and ambit of section 17A of PC Act, except

that it was in line with Section 197 Cr.P.C.

18. The select committee of Rajya Sabha, on the Prevention of

Corruption Act Amendment Bill 2017, in its report submitted on 12/8/2017 had

referred to the scope of section 17A PC Act. It seems that several objections

were raised regarding the above provision. Report reveals that CBI had

opposed the provision, holding that it may cause unnecessary delay in

investigation. All other authorities/representatives generally supported the

above amendment, with few suggestions regarding the authority competent

for granting sanction. Accordingly, the committee agreed with the amendment

as proposed by the Government and recommended that clause 12, for

insertion of section 17 A in the PC Act 1988, be effected.

19. Section 17A PC Act has to be analysed in the above background.

The most crucial part of section 17A provides that previous approval is

required in relation to 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”. It seems that the above part of the section is the most crucial part of the section, since it imposes a rider on the otherwise absolute power under section 17A that enquiry, inquiry or investigation into every act needed prior approval. It is clear that it is not that every offence alleged to have been committed by the public servant under the Act that needed prior approval. Prior approval under section 17A was required only where the alleged offence was relatable to “any recommendation made or decision taken by the public servant”. This seems to be the heart and soul

of the above section. It is clear that the Parliament has consciously used the above words. If the intention of the Parliament was to impose a pre condition that every enquiry, inquiry or investigation into every allegation of offence against a public servant required prior sanction, the words “where the alleged offence is relatable to any recommendation made or decision taken by the public servant” ought not have been there. If the above words are omitted, it would have meant that no police officer shall conduct any enquiry or inqury or investigation into any offence alleged to have been committed by a public servant under this Act in discharge of his official

function or duties without the previous approval of the competent authority. In other words, if the intention of the statute was to cover every enquiry, investigation or inqury, the words “where alleged offence is relatable to any recommendation made or decision taken by the public servant” were unnecessary, since even without those words it would have conveyed the intention. Hence, it is clear that the intention of the Parliament was not to insist for previous approval in relation to enquiry, inqury or investigation only in relation to every offence committed by the public servant.

20. This seems to be in pari materia with section 197 Cr.P.C.and also in

tune with the scope of the law laid down by the Supreme Court in its various

decisions referred to earlier, while discussing the scope of section 197(1),

Cr.P.C. If section 17A is interpreted as intending to cover every investigation,

enquiry or inqury into any offence allegedly committed by a public servant,

then it would have run counter to the spirit of all the above decisions.A contra

view that section 17A covers every offence, would have resulted in a

dichotomy, by which prosecution of a public officer for offences under IPC

and Prevention of Corruption Act may not require sanction under section 197

(1) Cr.P.C. IPC for offences not relating to acts done in discharge of the

official duty or purported to be official duty, whereas previous approval,

which is a more rigorous provision, would be required in relation to inquiry or

investigation against every other offence done by him. Hence, an

interpretation in tune with the entire decisions of the Supreme Court under

section 197(1) Cr.P.C.,will have to be adopted, which will be in consonance

with object of section 17A of PC Act.

21.In Dr.Subramanyam Swami v.Centre for Public Interest

Litigation (AIR 2014 SC 2140), a Constitution Bench of the Supreme Court

had occasion to consider the Constitutional validity of section 6A of the

Delhi’s Special Police Establishment Act (25 of 1946), which provided for

requirement of approval from the Central Government for

investigations/enquiry, if the accused was in the level of joint secretary or

above. The provision was held to be discriminatory, by reason of

classification made between corrupt public officers on the basis of the status

and to that extent, section 6A of 1946 Act and section 26C of 2003 Act were

held to be invalid. One criticism raised against section 17A of the PC Act

was that it was introduced to overcome the decision rendered in

Dr.Subramanyam Swami’s case. As mentioned earlier, it is pertinent to note

that legislature has specifically employed the words to restrict the scope of

section 17A of PC Act. The scope of the words “relatable to any

recommendation made or decision taken” has got its own significance.

which, according to me, has great relevance in relation to the restriction

imposed under the Prevention of Corruption Act. It could not be expected

that the Parliment wanted to impose spokes at three different levels , one

under section 17A of PC Act, the second one by 197 Cr.P.C. and thereafter

under section 19 of the PC Act and thereby paralyzing every investigation,

enquiry or inquiry as against the public servant. Such an interpretation would

have defeated the very purpose and object of the very statute, the

Prevention of Corruption Act, which was weeding out corruption from the public domain.

22. The object of the Prevention of Corruption Act is to protect

honest and upright public officers and to ensure that they are unnecessarily not dragged into litigation. It is also intended to ensure that the officers are insulated and protected against unnecessary litigation. Such a protection enable the officers to take prompt and bold decisions on files and the administrative machinery will move forward. Otherwise the officers would be reluctant to make any official recommendation or to take any decision on files, apprehending false accusation of corruption. In this context, it has to

be noted that scope of section 17A is specifically confined to “any

recommendation made or decision taken by public servant” which alone falls within the protection under section 17A. Definitely, the case of offences like misappropriation of funds, fraud, falsification of accounts, criminal breach of trust, conspiracy , etc. cannot be covered by the protection under section 17A. Definitely, they do not involve any decision or recommendation at all.

Such acts cannot be considered as one done in discharge of his official

functions and duties as contemplated under section 17A. Hence, it cannot,

by any stretch of imagination, be held that investigation into any of the

offences as mentioned above also needs prior approval, under section 17A.

Such an interpretation alone can be in consonance with the section as

interpreted by the various decisions. In other words, the scope of section

17A is only confined to investigation, inqury or enquiry into any offence

which is relatable to any decision taken or recommendation made by the

authority. This purposive interpretation seems to be in consonance with the

scope of section 17A.

23. An identical view was taken by a single judge of Delhi High Court

in Devendra Kumar v. CBI & others (W.P.(Criminal) No. 3247/2018 and

connected matters). In that, the scope of section 17A PC Act was under

consideration. The complainant alleged that he was being harassed by the

investigating officer and that the investigation officer demanded huge amount

from him for not charging a case against him. On the question whether the

prosecution of the police officer required sanction, it was held by the Delhi

High Court that the alleged promise to the complainant to ultimately give him

relief cannot be said to be one done in discharge of the official function or

duties of the public servant. It was held that the bar to enquiry or inquiry or

investigation under section 17A of the PC Act is apropos such alleged

offence as may be relatable to any recommendation made or decision taken

by a public servant in discharge of his official function or duties. In the

present case, there was no recommendation or decision on record by public

servant in discharge of his official functions. It was only such acts done in

discharge of the official functions that would have become the subject matter

for seeking approval of the employer. It was held that a public servant cannot

possibly be left to be under constant apprehension that bona fide decisions

taken by him would be open to enquiry, inquiry or investigation on the

complaint of a stranger. Section 17A , as it reads, and the legislative intent

can only be to protect a public servant in the bona fide discharge of official

functions or duties. However, when the act of a public servant is exfacie

criminal or constitutes an offence, prior approval of the Government would not

be necessary, it was held.

24. The legal principles involved has been correctly appreciated by the

Delhi High Court. It was reiterated that the scope of section 17A was that an

approval under section 17A for conducting any enquiry, inquiry or

investigation was warranted only when the act done by the accused, which he

was charged of ,was relatable to a decision taken or recommendation made.

If the offence was not relatable to any such decision or recommendation,

prior approval under section 17A was not required. Hence, any commission of

offence or allegation of acts of public servant which is ex facie criminal or

constitute an offence or even demanding illegal consideration or receiving of

it either to routinely move the file or to keep the file pending, without any

decision being taken therein, will not fall within the scope of section 17A.

Hence prior approval under section 17A is not warranted in such cases.

25. The reasonable conclusion that can be arrived at regarding the scope