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 

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Salient features of Prevention of Corruption Amendment Act 16 of 2018.

The Prevention of Corruption Act, 1988, provides for prevention of corruption and for matters connected therewith. The ratification by India of the United Nations Convention Against Corruption, the international practice on treatment of the offence of bribery and corruption and judicial pronouncements have necessitated a review of the existing provisions of the Act and the need to amend it so as to fill in gaps in description and coverage of the offence of bribery so as to bring it in line with the current international practice and also to meet more effectively, the country's obligations under the aforesaid Convention. Hence, the present Bill.

2. The salient features of the Bill, inter alia, are as follows—

(a) Section 7 of the Act at present covers the offence of public servant taking gratification other than legal remuneration in respect of an official act. The definition of offence is proposed to be substituted by a new comprehensive definition which covers all aspects of passive bribery, including the solicitation and acceptance of bribe through intermediaries and also acts of public servants acting outside their competence;

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Whether approval is required for inquiry or investigation of offences U/S 17A of Prevention of Corruption Act in trap cases?

Answer: No,as per proviso to S 17A of Prevention of Corruption Act

[17-A. 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—

(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.]

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Important provisions of Prevention of Corruption Act

1. Short title and extent.—(1) This Act may be called the Prevention of Corruption Act, 1988.

(2) It extends to the whole of India 2[* * *] and it applies also to all citizens of India outside India.

2. The words “except the State of Jammu and Kashmir” omitted by Act 34 of 2019, Ss. 95, 96 & Sch. V (w.e.f. 31-10-2019).

2. Definitions.—In this Act, unless the context otherwise requires,—

3[(d) “undue advantage” means any gratification whatever, other than legal remuneration.

Explanation.—For the purposes of this clause,—

(a) the word “gratification” is not limited to pecuniary gratifications or to gratifications estimable in money

(b) the expression “legal remuneration” is not restricted to remuneration paid to a public servant, but includes all remuneration which he is permitted by the Government or the organisation, which he serves, to receive. 

3. Power to appoint Special Judges.—(1) The Central Government or the State Government may, by notification in the Official Gazette, appoint as many Special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely:—

(a) any offence punishable under this Act; and

(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).

4. Cases triable by Special Judges.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified in sub-section (1) of Section 3 shall be tried by Special Judges only.

(3) When trying any case, a Special Judge may also try any offence, other than an offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

5. Procedure and powers of Special Judge.—(1) A Special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by Magistrates.

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Prevention of corruption Amendment Act 2018

www.egazette.nic.in/WriteReadData/2018/187644.pdf

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