Saturday 24 December 2022

Supreme Court: Section 17A of Prevention of Corruption Act Not Retrospective; Not Applicable To FIRs Before 2018 Amendment

 It is a cardinal principle of construction that every statute

is prospective, unless it is expressly or by necessary implication

made to have retrospective operation. There is a presumption

against retrospectivity. An express provision should ordinarily be

made to make a statute retrospective. The presumption against

retrospectivity may also be rebutted by necessary implication as

held by this Court in Akram Ansari vs. Chief Election Officer

reported in (2008) 2 SCC 95, which has been referred to and relied

upon by the Kerala High Court in its judgment in K.R. Ramesh vs.

Central Bureau of Investigation and Another reported in 2020 SCC

Online Kerala 2529. The device of a legal fiction can also be used

to introduce retrospective operation. Generally, it is considered

that every statute dealing with substantive rights is prima facie

prospective unless it is expressly or by necessary implication made

retrospective. {Para 7}

8. In T.N. Bettaswamaiah vs. State of Karnataka being W.P.

No.29176/2019 (GM-RES), decided on 20.12.2019, which is reported reported in MANU/KA/9503/2019, the Karnataka High Court referred to the judgment of this Court in Hitendra Vishnu Thakur vs. State of Maharashtra & Ors. reported in (1994) 4 SCC 602, and rightly held :

“21. … But in Hitendra Vishnu Thakur & Ors.

vs. State of Maharashtra and Others (1994) 4

SCC 602 it is held that a statute which not

only changes the procedure but also creates

new rights and liabilities shall be

construed to be prospective in operation

unless otherwise provided either expressly

or by necessary implication. A careful

reading of both Section 17A as also Section

19 do not contain any express provision to

show that they are retrospective in nature

nor it is so discernable by implication.

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1647 OF 2021

STATE OF RAJASTHAN Vs TEJMAL CHOUDHARY 

Author: INDIRA BANERJEE, J.

Dated: December 16, 2021.

Leave granted.

2. This appeal is against the final judgment and order dated

07.04.2020 passed by the High Court of Judicature for Rajasthan at

Jabalpur, allowing S.B. Criminal Miscellaneous Petition

No.1163/2018, filed by the respondent and quashing FIR No.1/2018,

registered against the respondent under Section 13(1)(g) and 13(2)

of the Prevention of Corruption Act, 1988 (hereinafter referred to

as the “PC Act”) read with Sections 420, 467, 468, 471 and 120B of

the Indian Penal Code.


3. By the aforesaid judgment and order, three miscellaneous

petitions involving identical questions of law being S.B. Criminal

Miscellaneous Petition No.1163/2018 referred to above, S.B.

Criminal Miscellaneous Petition No.159/2018 and S.B. Criminal

Miscellaneous Petition No.953/2018 have been disposed of. The

petitioners in Criminal Miscellaneous Petition No. 159/2018 and

Criminal Miscellaneous Petition No.953/2018 are also accused named

in FIR 1/2018.

4. The said FIR has been quashed mainly on the ground that the

Investigating Authorities had failed to obtain previous approval of

the State Government under Section 17(A) of the PC Act before

registering the said FIR against the accused persons.

5. Section 17(A) of the PC Act, which is set out hereinafter for

convenience, has been incorporated by amendment of the Prevention

of Corruption Act, 1988, with effect from 26th July, 2018. It reads

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.—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—

(a) 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;

(b) 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;

(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:

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.”

6. In this case, the FIR was filed on 01.01.2018 before the said

provision came into force. The main question involved in these

appeals is whether Section 17A of the PC Act would apply to an

investigation which had commenced before Section 17A was

enacted/enforced.

7. It is a cardinal principle of construction that every statute

is prospective, unless it is expressly or by necessary implication

made to have retrospective operation. There is a presumption

against retrospectivity. An express provision should ordinarily be

made to make a statute retrospective. The presumption against

retrospectivity may also be rebutted by necessary implication as

held by this Court in Akram Ansari vs. Chief Election Officer

reported in (2008) 2 SCC 95, which has been referred to and relied

upon by the Kerala High Court in its judgment in K.R. Ramesh vs.

Central Bureau of Investigation and Another reported in 2020 SCC

Online Kerala 2529. The device of a legal fiction can also be used

to introduce retrospective operation. Generally, it is considered

that every statute dealing with substantive rights is prima facie

prospective unless it is expressly or by necessary implication made

retrospective.

8. In T.N. Bettaswamaiah vs. State of Karnataka being W.P.

No.29176/2019 (GM-RES), decided on 20.12.2019, which is reported

reported in MANU/KA/9503/2019, the Karnataka High Court referred to

the judgment of this Court in Hitendra Vishnu Thakur vs. State of

Maharashtra & Ors. reported in (1994) 4 SCC 602, and rightly held :

“21. … But in Hitendra Vishnu Thakur & Ors.

vs. State of Maharashtra and Others (1994) 4

SCC 602 it is held that a statute which not

only changes the procedure but also creates

new rights and liabilities shall be

construed to be prospective in operation

unless otherwise provided either expressly

or by necessary implication. A careful

reading of both Section 17A as also Section

19 do not contain any express provision to

show that they are retrospective in nature

nor it is so discernable by implication.

22. In Dr. Subramanian Swamy vs. Dr.

Manmohan Singh and Another (2012) 3 SCC 64

it is held that any anti-corruption law has

to be interpreted in such a fashion as to

strengthen fight against corruption and

where two constructions are eminently

reasonable, the Court has to accept the one

that seeks to eradicate corruption than the

one which seeks to perpetuate it.”

9. Reference may also be made to the judgment of this Court in GJ

Raja vs. Tejraj Surana” reported in (2019) 19 SCC 469, cited by Mr.

Saurav Roy, learned counsel appearing on behalf of the appellant,

where this Court followed the judgment of this Court in Hitendra

Vishnu Thakur (supra) and held that a statute which affect

substantive rights is presumed to be prospective in operation

unless made retrospective and unless textually impossible a statute

which merely affects procedure is presumed to be retrospective.

However, a statute which not only changes the procedure but also

creates new rights or liabilities is to be construed to be

prospective in operation, unless otherwise provided either

expressly or by necessary implication.

10. In State of Telangana vs. Managipet alias Mangipet Sarveshwar

Reddy reported 2019 (19) SCC 87, this Court rejected the arguments

that amended provisions of the PC Act would be applicable to an

FIR, registered before the said amendment came into force and found

that the High Court had rightly held that no grounds had made out

for quashing the proceedings.

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 only on the

ground of permission not having been obtained under Section 17A of

the PC Act.

13 The appeals are, accordingly, allowed and the impugned

judgment and order is accordingly set aside.

……………………………………….. J.

[INDIRA BANERJEE}

……………………………………….. J.

[J.K. MAHESHWARI}

New Delhi;

December 16, 2021.



Print Page

No comments:

Post a Comment