Himachal Pradesh High Court
Dr. Ajay Kumar Gupta vs State Of Himachal Pradesh on 13 September, 2024
Neutral Citation No. ( 2024:HHC:8531 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 528 of 2022 .
Reserved on: 12.08.2024.
Date of Decision: 13.09.2024.
Dr. Ajay Kumar Gupta ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes For the Petitioner : Mr. Abhishek Sethi, Advocate. For the Respondents : Mr. Jitender Sharma, Additional Advocate General, for respondent No.1/State.
Mr. Ashok Kumar Tyagi, Advocate, for respondent No.2.
Rakesh Kainthla, Judge The petitioner has filed the present petition for quashing of FIR No.4 of 2020, dated 20.05.2020, for the commission of offences punishable under Sections 7 & 8 of the Prevention of Corruption Act (hereinafter referred to as the Act) registered at Police Station State Vigilance and Anti-Corruption Bureau, Shimla along with the consequent proceedings, namely, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 13/09/2024 20:35:41 :::CIS 2Neutral Citation No. ( 2024:HHC:8531 ) corruption case No. 6 of 2021 pending before learned Special Judge, Shimla.
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2. It has been asserted that a false case was made against the petitioner based on an audio recording related to the demand of ₹ 5,00,000 from a supplier. The police conducted preliminary verification and thereafter registered the FIR. The petitioner took charge as Director of Health Shimla on 01.11.2018 pursuant to the Notification dated 31.10.2018. The co-accused Prithvi Singh is an employee of Apex Diagnostic and is stated to be working as a liaisoning agent of M/s Bioaide Corporation for supplying the PPE kits to the Directorate of Health, Shimla. The petitioner and Prithvi Singh have known each other since the time the petitioner was posted as CMO, Nahan. There was a need for PPE Kits in the Directorate of Health and Prithvi Singh was in regular touch with the petitioner. As per the prosecution, 63 calls were exchanged between the petitioner and the co-
accused. The police seized the mobile phones of the petitioner and the co-accused and found the call recording in the mobile phone of the petitioner. The call recording shows that Prithvi Singh was enquiring about the payment of the supply of the PPE Kits and was seeking another order of five thousand PPE Kits ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 3 Neutral Citation No. ( 2024:HHC:8531 ) before the commencement of competitive bids. The co-accused claimed that he was bringing ₹ 3 lakhs in cash to Shimla and the .
petitioner was insisting on the payment of ₹ 2 lakhs more. The police conducted the investigation and arrested the petitioner and the co-accused. The police filed a charge sheet after the completion of the investigation. The police could not have investigated the matter in view of Section 17A of the Act, as the act done by the petitioner was relatable to the recommendation made or the decision taken by him to purchase the PPE kits. The registration of the FIR and subsequent proceedings without approval as required under Section 17A of the Act are without jurisdiction. Therefore, it was prayed that the present petition be allowed and the FIR and the consequent proceedings be quashed.
3. The petition is opposed to filing a reply making preliminary submission regarding lack of maintainability. It was asserted that the petitioner failed to exhaust the alternate remedies available to him before approaching this Court. He argued the matter at length before the learned Trial Court on the point of framing charge. Thereafter, he sought an adjournment to address further argument, which was allowed. The petitioner ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 4 Neutral Citation No. ( 2024:HHC:8531 ) approached this Court instead of completing the arguments before the learned Trial Court. The audio recording was sent to .
SFSL and as per the report, the same matched with the voice of the petitioner. The petitioner took charge as the Directorate of Health on 01.11.2018. Various equipment including PPE kits were procured from various suppliers during the COVID-19 Pandemic.
The petitioner purchased PPE Kits from one supplier, namely, M/S Bioaide Corporation, Manimajra for which co-accused Prithvi Singh was working as a liasoning agent. The purchase was made without issuing tenders. The petitioner demanded money from the co-accused for the early release of payment for the supply of the PPE Kits. No conclusive evidence could be collected about the source of money, time and place of acceptance of ₹ 5 lakhs by the petitioner. However, co-accused Prithvi Singh visited the Directorate of Health on 17.04.2020.
The petitioner committed the offence punishable under Section 7(b) of the Act. The police filed the charge sheet before the learned Trial Court after the completion of the investigation.
Section 17A of the Act is not a blanket protection but protection to the honest public servant for the action taken by him while ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 5 Neutral Citation No. ( 2024:HHC:8531 ) discharging his official duties. Therefore, it was prayed that the present petition be dismissed.
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4. A rejoinder denying the contents of the reply and affirming those of the petition was filed.
5. I have heard Mr Abhishek Sethi, learned counsel for the petitioner/accused, Mr Jitender Sharma, learned Additional Advocate General for the respondent/State and Mr Ashok Kumar Tyagi, learned counsel for co-accused Prithvi Singh.
6. Mr. Abhishek Sethi, learned counsel for the petitioner/accused submitted that he is confining his arguments to the applicability of Section 17A of the Act in terms of the order dated 27.05.2024. The matter regarding the interpretation of Section 17A of the Act has been referred to the Larger Bench by the Hon'ble Supreme Court in Nara Chandrababu Naidu versus State of Andhra Pradesh (SC) 2024 INSC 41 but this will not mean that the Courts will stop adjudicating this question. He relied upon the judgment of the Hon'ble Supreme Court in Union Territory of Ladakh versus Jammu and Kashmir National Conference 2023 INSC 804. The provision of Section 17A of the Act is mandatory and no enquiry, inquiry or investigation can take ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 6 Neutral Citation No. ( 2024:HHC:8531 ) place without approval. The petitioner/accused had placed the orders for PPE kits in the discharge of his official duties and .
Section 17A of the Act applies to the present case. The investigation conducted by the police without approval is non-
est and void. The charge sheet filed based on such an investigation also cannot stand. Therefore, he prayed that the present petition be allowed and the FIR and consequent proceedings be ordered to be quashed. He relied upon the judgments of Yashwant Sinha versus Central Bureau of Investigation 2020 (2) SCC 338, Yogesh Nayyar versus State of Madhya Pradesh, 2023 ILR (M.P.) 1974, Hemant Nimbalkar versus State of Karnataka, (Karnataka) Writ Petition No. 14014 of 2020 dated 19.03.2021, Himanshu Yadav versus State of Rajasthan S.B. Civil Writ Petition No. 17545 of 2021 dated 19.01.2022, and Bhayabhai Gigabhai Sutreja versus State of Gujarat, 2021 CriLJ 585 in support of his submission.
7. Mr. Jitender Sharma learned Additional Advocate General for the respondent/State submitted that Section 17A of the Act does not provide blanket protection to the public servant for all the acts but only for the acts relatable to any recommendation made or decision taken by such public servant ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 7 Neutral Citation No. ( 2024:HHC:8531 ) in the discharge of his official functions or duties. The demand for bribes does not fall within the definition of an offence .
relatable to any recommendations made or decisions taken by the public servant in the discharge of his official functions. He relied upon the judgment of this Court in Abhishek Sharma vs State of HP 2023 Cri. L.J 2424 in support of his submission.
8. Mr Ashok Kumar Tyagi, learned counsel for accused Prithvi Singh adopted the submission of Mr Abhishek Sethi learned counsel for the petitioner and submitted that the provision of Section 17A of the Act is mandatory and no enquiry, inquiry or investigation can take place without the approval of the competent authority. Such approval has not been taken in the present case and the FIR is liable to be quashed.
9. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
10. The parameters for exercising jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon'ble Supreme Court in A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it was observed: -
9. The law with regard to the exercise of jurisdiction under Section 482 of Cr. P.C. to quash complaints and criminal ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 8 Neutral Citation No. ( 2024:HHC:8531 ) proceedings has been succinctly summarized by this Court in the case of Indian Oil Corporation v. NEPC India Limited (2006) 6 SCC 736: 2006 INSC 452 after considering the earlier precedents. It will be apposite to refer to the .
following observations of this Court in the said case, which read thus:
"12. The principles relating to the exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few--
Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692: 1988 SCC (Cri) 234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194: 1995 SCC (Cri) 1059], Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591: 1996 SCC (Cri) 1045], State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164: 1996 SCC (Cri) 628], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259: 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269: 2000 SCC (Cri) 615], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168: 2000 SCC (Cri) 786], M. Krishnan v. Vijay Singh [(2001) 8 SCC 645: 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122: 2005 SCC (Cri) 283]. The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 9 Neutral Citation No. ( 2024:HHC:8531 ) nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing a complaint.
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(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are necessary for making out the offence. (v.) A given set of facts may make out: (a) purely a civil wrong; (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 10 Neutral Citation No. ( 2024:HHC:8531 ) allegations in the complaint disclose a criminal offence or not.
11. Similar is the judgment in Maneesha Yadav v. State of .
U.P., 2024 SCC OnLine SC 643, wherein it was held: -
12. We may gainfully refer to the following observations of this Court in the case of State of Haryana v. Bhajan Lal1992 Supp (1) SCC 335: 1990 INSC 363:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 11 Neutral Citation No. ( 2024:HHC:8531 ) within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made .
in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 12 Neutral Citation No. ( 2024:HHC:8531 ) rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint .
and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
12. The present petition has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
13. Hon'ble Supreme Court held in Yashwant Sinha v. CBI, (2020) 2 SCC 338: 2019 SCC OnLine SC 1460 that no investigation, inquiry or enquiry can be conducted against the acts done by a public servant in discharge of his official duties without the approval of the competent authority in view of Section 17A of Prevention of Corruption Act. It was observed at page 390:
117. In terms of Section 17-A, no police officer is permitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in the discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his office at the time when the offence was alleged to have been committed. In respect of the public servant, who is involved in this case, it is clause (c), which is applicable. Unless, therefore, there is previous approval, there could be neither inquiry nor enquiry or investigation. It is in this context apposite to notice that the complaint, which has been filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018, moved before the first respondent CBI, is done after ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 13 Neutral Citation No. ( 2024:HHC:8531 ) Section 17-A was inserted. The complaint is dated 4-10-
2018. Paragraph 5 sets out the relief which is sought in the complaint which is to register an FIR under various .
provisions. Paras 6 and 7 of the complaint are relevant in the context of Section 17-A, which read as follows:
"6. We are also aware that recently, Section 17-A of the Act has been brought in by way of an amendment to introduce the requirement of prior permission of the Government for investigation or inquiry under the Prevention of Corruption Act.
7. We are also aware that this will place you in the peculiar situation, of having to ask the accused himself, for permission to investigate a case against him. We realise that your hands are tied in this matter, but we request you to at least take the first step, of seeking permission of the Government under Section 17-A of the Prevention of Corruption Act for investigating this offence and under which, "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"." (emphasis supplied)
118. Therefore, the petitioners have filed the complaint fully knowing that Section 17-A constituted a bar to any inquiry enquiry or investigation unless there was previous approval. In fact, a request is made to at least take the first step of seeking permission under Section 17-A of the 2018 Act. Writ Petition (Criminal) No. 298 of 2018 was filed on 24-10-2018 and the complaint is based on non-registration of the FIR. There is no challenge to Section 17-A. Under the law, as it stood, both on the date of filing the petition and even as of today, Section 17-A continues to be on the statute book and it constitutes a bar to any inquiry or enquiry or investigation. The petitioners themselves, in the complaint, request to seek ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 14 Neutral Citation No. ( 2024:HHC:8531 ) approval in terms of Section 17-A but when it comes to the relief sought in the writ petition, there was no relief claimed in this behalf.
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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 17- A. 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 [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524], and more importantly, Section 17-A 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 in Writ Petition (Criminal) No. 298 of 2018 from taking action on Ext. P-1, complaint in accordance with law and subject to the first respondent obtaining previous approval under Section 17-A of the Prevention of Corruption Act.
14. The Hon'ble Supreme Court considered the provision of Section 17A of the Act in Nara Chandrababu Naidu (supra) but the Hon'ble Judges differed in their views regarding its interpretation and the applicability; hence, the matter was referred to a Larger Bench.
15. It was held in Union Territory of Ladakh v. Jammu & Kashmir National Conference, 2023 SCC OnLine SC 1140 that mere reference to a Larger Bench does not unsettle the declared law.
The High Courts and the Tribunals should not stay their hands ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 15 Neutral Citation No. ( 2024:HHC:8531 ) merely because a reference was made to a Larger Bench. It was observed:
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"32. ....[I]t is settled that mere reference to a larger Bench does not unsettle declared law. In Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608, a 2-judge Bench said:
"15. Even if what is contended by the learned counsel is correct, it is not for us to go into the said question at this stage; herein cross-examination of the witnesses had taken place. The Court had taken into consideration the materials available to it for the purpose of arriving at a satisfaction that a case for exercise of jurisdiction under Section 319 of the Code was made out. Only because of the correctness of a portion of the judgment in Mohd. Shaf [(2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : (2007) 4 SCR 1023 : (2007) 5 Scale 611] has been doubted by another Bench, the same would not mean that we should wait for the decision of the larger Bench, particularly when the same instead of assisting the appellants runs counter to their contention." (emphasis supplied)
33. In Ashok Sadarangani v. Union of India, (2012) 11 SCC 321, another 2-Judge Bench indicated: "29. As was indicated in the Harbhajan Singh case [Harbhajan Singh v. State of Punjab, (2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135], the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh's case [(2010) 15 SCC 118] need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field." (emphasis supplied)
34. On the other hand, when it was thought proper that other Benches of this Court, the High Courts and the Courts/Tribunals below stay their hands, the same was ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 16 Neutral Citation No. ( 2024:HHC:8531 ) indicated in as many words, as was the case in State of Haryana v. G D Goenka Tourism Corporation Limited, (2018) 3 SCC 585:
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"9. Taking all this into consideration, we are of the opinion that it would be appropriate if in the interim and pending a final decision on making a reference (if at all) to a larger Bench, the High Courts be requested not to deal with any cases relating to the interpretation of or concerning Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The Secretary-General will urgently communicate this order to the Registrar General of every High Court so that our request is complied with.
10. Insofar as the cases pending in this Court are concerned, we request the Benches concerned dealing with similar matters to defer the hearing until a decision is rendered one way or the other on the issue whether the matter should be referred to a larger Bench or not. Apart from anything else, deferring the consideration would avoid inconvenience to the litigating parties, whether it is the State or individuals." (emphasis supplied)
35. We are seeing before us judgments and orders by High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger Bench or a review petition relating thereto is pending. We have also come across examples of High Courts refusing deference to judgments of this Court on the score that a later Coordinate Bench has doubted its correctness. In this regard, we lay down the position in law. We make it absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands. It is not open unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later Coordinate Bench. In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 17 Neutral Citation No. ( 2024:HHC:8531 ) the High Courts, as held by a 5-Judge Bench in National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC
680. The High Courts, of course, will do so with careful regard to the facts and circumstances of the case before .
it." (Emphasis supplied)
16. Thus, a mere reference to the Larger Bench in Nara Chandrababu Naidu (supra) will not prevent this Court from adjudicating the question as per the applicable law in view of the binding precedent of the Hon'ble Supreme Court in Union Territory of Ladakh (supra).
17. Section 17A of the Act reads as under:
17-A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decisions taken by public servants in the 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 the 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 ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 18 Neutral Citation No. ( 2024:HHC:8531 ) time when the offence was alleged to have been committed:
Provided that no such approval shall be necessary for .
cases involving the arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or 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."
18. It is apparent from the plain reading of the Section that it applies to an offence relatable to any recommendation made or decision taken by such public servant in the discharge of his official functions or duties. It was laid down by the Delhi High Court in Devender Kumar v. CBI, 2019 SCC OnLine Del 6482 that where the complainant alleges coercion or extortion, such an act cannot be said to be in the discharge of official duties and the approval under Section 17A will not be necessary. It was observed:
"35. Section 7 of the PC Act, stipulates that any public servant who obtains accepts or attempts to obtain from any person an undue advantage with the intention to perform or cause the performance of public duty improperly or dishonestly or to cause the forbearance to perform such duty either by himself or by another public servant would have committed an offence under the said section. Even the act of a public servant to perform such improper or dishonest public duty, including for a ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 19 Neutral Citation No. ( 2024:HHC:8531 ) reward, is a punishable offence under the said section. In the aforesaid section, the element of threat or coercion is not specifically mentioned. The said section does not necessarily cover the element of threat and coercion as .
alleged by the complainant in the present case. According to the Illustration to Explanation (i) of section 7 of the PC Act, a person would be guilty of an offence under the said section if he asks a public servant to give him an amount of five thousand rupees to process his routine ration card application on time. The nature of the offence contemplated under section 7 of the PC Act is different.
The complexion or nature of a case depends on its essential ingredients - the facts. If the allegations are overwhelming by under the IPC, then the case will be so construed.
37. The complainant-Sana has alleged coercion, threat and extortion of money, albeit for an offence under Section 7 of the PC Act as well, but such acts by a public servant cannot be said to be in the discharge of his official function or duties. Therefore, in the present case, the approval under Section 17A of the Act would not be necessary."
19. Kerela High Court held in Jayaprakash J. v. State of Kerala, 2021 SCC OnLine Ker 4952 that the bar under Section 17A is meant to protect public servants from malicious, vexatious and baseless prosecution. It cannot be considered a protective shield for corrupt public servants. The sine qua non for the applicability of Section 17A is that the offence allegedly committed by a public servant is related to any recommendation made or decision taken by him in the discharge of his official functions or duties and does not apply to all offences committed ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 20 Neutral Citation No. ( 2024:HHC:8531 ) by a public servant. Where a public servant misappropriates money based on bogus bills, the act is not relatable to the .
decision taken or the recommendation made by him. It was observed:
"18. A close scrutiny of the provisions contained in Section 17A of the Act would reveal the following : (1) The bar under Section 17A of the Act operates against a police officer (2) It prohibits a police officer from conducting any enquiry or inquiry or investigation, into any offence alleged to have been committed by a public servant under the Act without the previous approval of the prescribed authority (3) The bar under the provision operates or applies only when the offence allegedly committed by a public servant under the Act relates to any recommendation made or decision taken by such public servant in discharge of his official functions or duties (4) The authority competent to grant previous approval for enqiry or inquiry or investigation is the Central Government in the case of a person employed in connection with the affairs of the Union (5) The authority competent to grant previous approval for enquiry or inquiry or investigation is the State Government in the case of a person employed in connection with the affairs of a State (6) The authority competent to grant previous approval for enquiry or inquiry or investigation in the case of any other person is the authority competent to remove the public servant from his office (7) The provision also applies in case of a retired public servant. The previous approval envisaged under Section 17A of the Act is necessary even if the public servant has ceased to hold his office (8) Section 17A of the Act does not apply to cases involving the 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 (9) The time which shall be taken by the authority concerned to ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 21 Neutral Citation No. ( 2024:HHC:8531 ) convey its decision on granting of approval is three months (10) The authority may, for reasons to be recorded in writing, extend the above time by a further period of one month.
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19. The object of Section 17A of the Act is to protect public servants from malicious, vexatious and baseless prosecution. It cannot be considered as a protective shield for corrupt public servants. A public servant cannot be left to be under constant apprehension that bona fide decisions taken by him would be open to enquiry, inquiry or investigation on the basis of frivolous and false complaints made against him. If every decision taken by a public servant is viewed with suspicion, the public administration will come to a grinding halt as the persons responsible for taking decisions would lose their enthusiasm. Section 17A of the Act intends to avoid such a situation.
20. The requirement of seeking previous approval presupposes that the offence under the Act allegedly committed by the public servant is relatable to any recommendation made or decision taken by him in the discharge of his official functions or duties. The bar under Section 17A of the Act does not apply to investigation conducted into all or every offence under the Act allegedly committed by a public servant. The bar under the provision operates or applies only when the offence allegedly committed by a public servant under the Act relates to any recommendation made or decision taken by such public servant in the discharge of his official functions or duties.
21. 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 the discharge of his official functions or duties. As a necessary corollary, previous approval is required only if the recommendation made or ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 22 Neutral Citation No. ( 2024:HHC:8531 ) the 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 protection under Section 17A of the Act.
22. In order to apply the provisions of Section 17A of the Act, there shall be a "decision" or "recommendation" by a public servant against which an enquiry or investigation is under contemplation. Such "decision" or "recommendation" shall be a "decision" taken or "recommendation" made by the public servant in the discharge of his official functions or duties.
23. In the present case, the offence under Section 13(1)(a) of the Act is alleged against the accused. Section 13(1)(a) of the Act states that a public servant is said to commit the offence of criminal misconduct if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so.
24. In the present case, there is no allegation against accused 2 to 4 that the offence under Section 13(1)(a) of the Act allegedly committed by them relates to any decision taken or recommendation made by them in the discharge of their official functions or duties. Therefore, the bar under Section 17A of the Act does not apply to the investigation of the case against them.
25. The allegation against the first petitioner, who is the first accused, is that he sanctioned the payment of money on the basis of bogus bills created by him and that he misappropriated the money. Learned counsel for the petitioners contended that the offence under Section 13(1)
(a) of the Act alleged against the first accused relates to the decision taken by him to grant sanction for payment of money to J.P. Traders and therefore, prior approval from the competent authority was required before ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 23 Neutral Citation No. ( 2024:HHC:8531 ) conducting an investigation into the above offence allegedly committed by him.
26. There is no merit in the above contention. If the .
allegation against the first accused was only that he sanctioned payment of money and thereafter, he misappropriated the money without paying it to the person to whom it was due, the aforesaid contention could have perhaps been accepted. Here, the allegation is that the first accused sanctioned payment of money on the basis of false and forged documents created by him and that he misappropriated the amount without actually paying it to the party concerned. The sanction for payment of money on the basis of forged documents makes all the difference. The decision taken or recommendation made by the first accused for payment of money cannot be considered to be an act done in the discharge of his official functions or duties because such decision or recommendation was made by him not on the basis of genuine documents but on the basis of documents allegedly forged by him.
27. In Shambhoo Nath Misra v. State of U.P.: (1997) 5 SCC 326: AIR 1997 SC 2102, the Apex Court has held as follows:
"It is not the official duty of the public servant to fabricate the false record and misappropriate the public funds etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the same transaction."
28. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity (See Parkash Singh Badal v. State of Punjab: (2007) 1 SCC 1: AIR 2007 SC 1274).
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29. In Devender Kumar v. Central Bureau of Investigation:
(2019) 1 Crimes 726, the 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".
30. In T.O. Sooraj v. State of Kerala [(2021) 4 KLT (Online) 1035: 2021 SCC OnLine Ker 2896], this Court had occasion to observe as follows:
"Use or utilization of public funds by a public servant under the colour of authority but really for his own benefit cannot be considered as an act done in discharge of his official functions or duties. Such an act is not entitled to get the protection under Section 17A of the Act".
31. In H.H.B. Gill v. The King: AIR 1948 PC 128, it has been observed as follows:
"A public servant can only be said to act or to purport to act in the discharge of his official duty if his act is such as to lie within the scope of his official duty. Thus, a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the judgment which he delivers may be such an act: nor does a government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office".
32. Tested on the touchstone of the principles mentioned above, the decision taken or recommendation made by the first accused to grant sanction for payment of money on the basis of documents allegedly forged by him and committing misappropriation of the amount cannot be ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 25 Neutral Citation No. ( 2024:HHC:8531 ) considered as acts done by him in the discharge of his official duties or functions. Therefore, no prior approval from the competent authority was necessary for an investigation into the offence under Section 13(1)(a) of .
the Act alleged against him."
20. A similar view was taken by the same high Court in Shankara Bhat v. State of Kerala, 2021 SCC OnLine Ker 3427 and it was held:
"14. 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 needs 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 prerequisite for every enquiry or inquiry or investigation into every act done by the public servant in the discharge of his official functions.
15. No doubt, Section 197(1) Cr.P.C. and Section 17A of the P.C. Act operate in two different fields and distinct situations. Apparently, it has nothing in common at all. However, the 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 the 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, ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 26 Neutral Citation No. ( 2024:HHC:8531 ) criminal breach of trust, receiving bribes, etc. are beyond the scope of the provision.
16. Statutorily, cases involving the arrest of a person on .
the spot on charge of accepting or attempting to accept any undue advantage for himself or any other person, have 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 a bribe and the arresting officer cannot wait for previous approval.
17. While considering the scope of section 17A of the 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 covers 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 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 scenarios, 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 ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 27 Neutral Citation No. ( 2024:HHC:8531 ) intended that such acceptance was consequential to a relevant public function or activity being performed.
18. In the proviso to the proposed section 17A (1), it was .
provided that the taking of a 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 public 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 the PC Act, except that it was in line with Section 197 Cr.P.C.
19. 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 the CBI had opposed the provision, holding that it may cause unnecessary delay in the 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.
20. 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 ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 28 Neutral Citation No. ( 2024:HHC:8531 ) 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 inquiry or investigation into any offence alleged to have been committed by a public servant under this Act in the 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 inquiry, the words "where the 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 on previous approval in relation to enquiry, inqury or investigation only in relation to every offence committed by the public servant.
21. 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 ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 29 Neutral Citation No. ( 2024:HHC:8531 ) 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 the 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 the object of section 17A of the PC Act.
22. In Dr Subramanyam Swami v. Centre for Public Interest Litigation ((2014) 8 SCC 682: 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 the 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 the 1946 Act and section 26C of the 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 the legislature has specifically employed the words to restrict the scope of section 17A of the PC Act. The scope of the words "relatable to any recommendation made or decision taken" has got its own significance. which, according to ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 30 Neutral Citation No. ( 2024:HHC:8531 ) me, has great relevance in relation to the restriction imposed under the Prevention of Corruption Act. It could not be expected that the Parliament wanted to impose spokes at three different levels, one under section 17A of .
the 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.
23. 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 protection enables 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 accusations of corruption. In this context, it has to be noted that the scope of section 17A is specifically confined to "any recommendation made or decision taken by a 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 the 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 ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 31 Neutral Citation No. ( 2024:HHC:8531 ) 17A is only confined to the investigation, inquiry 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.
24. An identical view was taken by a single judge of the Delhi High Court in Devendra Kumar v. CBI (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 a huge amount from him for not charging a case against him. On the question of 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 done in the 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 the discharge of his official function or duties. In the present case, there was no recommendation or decision on record by a public servant in the discharge of his official functions. It was only such acts done in the discharge of the official functions that would have become the subject matter for seeking approval from 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.::: Downloaded on - 13/09/2024 20:35:41 :::CIS 32
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25. The legal principles involved has been correctly appreciated by the Delhi High Court. It was reiterated that the scope of section 17A was that 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.
26. 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 the 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.
27. Applying the above legal principles, I am of the firm opinion that in the cases at hand, which involve an allegation of falsification of accounts, breach of trust and misappropriation of funds or acts which are ex-facie criminal, no prior approval under section 17A of Prevention of Corruption Act is required."::: Downloaded on - 13/09/2024 20:35:41 :::CIS 33
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21. The Madras High Court held in A. Ganapathi v. State of T.N., (2022) 1 HCC (Mad) 86 that Anti-Corruption Law has to be .
interpreted in such a fashion as to strengthen fight against the corruption and when two constructions are reasonable. The Court has to accept the one that seeks to eradicate corruption rather than the one which seeks to perpetuate it. The protection under Section 17A is to be given to the public servant for rightful and justifiable reasons. It was held:
"22. .....Further, the Supreme Court referring to Subramanian Swamy v. Manmohan Singh [Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 (2012) 1 SCC (Cri) 1041] 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. Section 17-A protection is given to the public servant for rightful and justifiable justice. In this case, it is not so."
22. It was held by Gauhati High Court in Rounak Ali Hazarika versus State of Assam 2024 SCC online Guhati 612 that the use of world relatable limits and restricts the offence to be associated with and connected to a decision taken or recommendation made by a public servant in the discharge of official duty or function and Section 17A cannot be extended to all the offences committed by a public servant. It was observed:
::: Downloaded on - 13/09/2024 20:35:41 :::CIS 34Neutral Citation No. ( 2024:HHC:8531 ) "IV. From a reading of section 17A, the following mandates of law are discernible:
No police officer can conduct any enquiry or inquiry or .
investigation without previous approval when it is alleged that:
A. An offence under PC Act, 1988 has been committed by a public servant;
B. In the discharge of official function or duties; and C. Such offence is relatable to:
i. any recommendation made
r or
ii. any decision taken.
V. Thus, when it is alleged that an offence is committed under the PC Act by a public servant, which is relatable to a recommendation or decision taken by him, section 17 A of the act debars a police officer from conducting any enquiry or investigation, without obtaining approval of the Union Government or the State Government or the person competent to remove the public servant, as the case may be.
VI. The legislature, in its wisdom has applied/used the word "an offence relatable".
VII. The word "relatable" is an adjective. The legislature in its wisdom had used the adjective "relatable" to connect the "Offence" to a "recommendation made" or a "decision taken." Therefore, such approval shall be required when the offence is associated with and connected to a decision taken or recommendation made by a public servant in the discharge of official duty or function. Use of the adjective "relatable" to the "Offence", in the considered opinion of this court limits and restricts the offence to be associated with and connected to a decision taken or recommendation made by a public servant in the discharge of official duty or ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 35 Neutral Citation No. ( 2024:HHC:8531 ) function and therefore, can't be extended to all offences under the P.C. Act.
VIII. Thus, the argument of Mr. Choudhury, learned .
Senior Counsel that enquiry/Inquiry/Investigation of all cases under PC Act'1988, except trap cases, require prior approval of competent authority don't find favour of this Court. The legislature could have clearly made such provision application to all the offences under the PC Act 1988 without relating the offences to "any decision" or "recommendation."
IX. It is by now well settled that the provision of law/statutes should be interpreted according to their literal or plain meaning, giving the words their ordinary and natural meaning. In the case in hand not only the literal meaning is clear but also such literal interpretation doesn't lead to an absurd or unreasonable result. It is also unambiguous. By relating the offences to a decision taken or recommendation made, the legislature excluded other offences, not relatable to a decision taken or recommendation made in the discharge of official duties. X. Therefore, this Court is of the unhesitant view that approval is not required in all situations and the alleged offence must be relatable to an offence committed by a public servant while taking a decision or making any recommendation.
XI. It is the general principle that the police is bound to register an FIR and to investigate when commission of the cognizable offence is disclosed in the FIR/complaint. However, as discussed and determined hereinabove, protection in the shape of "prior approval" is given even when cognizable offences are made, under the PC Act' 1988 which is relatable to a decision taken or recommendation made.
XII. Thus, from the limited nature of protection granted under section 17A of the Act 1988, as discussed hereinabove, the intention of the legislature can also be gathered. In the considered opinion of this court, the ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 36 Neutral Citation No. ( 2024:HHC:8531 ) intention is to provide a protective shield to a public servant from being subjected to an enquiry or investigation by a police officer, when the alleged offence relates to a decision-making process resulting in a .
decision and/or a recommendation made in discharge of official duty. The object is to facilitate the officers to take decision and make recommendation without there being any fear of frivolous complaint inasmuch as his/her employer shall have an opportunity to consider, whether the allegation is correct or not or whether the decision taken/recommendation made in discharge of official duty is/are genuine or taken in lieu of illegal gratification. XIII. Offences and penalties are detailed under chapter III of the PC Act 1988. Section 7 of the Act relates specifically to taking a bribe for the performance of public duty improperly or dishonestly or to forebear from performing such duty by a public officer himself or by another public servant or improper or dishonest performance of public duty or inducement of another public servant to perform public duty dishonestly etc. Therefore, section 7 relates to dishonest performance of duty by taking an undue advantage/illegal gratification.
Section 7A relates to the offences of taking undue advantage to influence public servants by corrupt means or by the exercise of public influence. Section 8 relates to bribe giver. Section 9 relates to bribing a public servant by a commercial organization.
Section 11 deals with the offence when a public servant obtains undue advantage. Section 13 deals with criminal misconduct by a public servant.
XIV. In the case in hand the allegation is criminal misconduct by the petitioner. A criminal misconduct is committed, when a public servant dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as public servant or allows any other person to do so.::: Downloaded on - 13/09/2024 20:35:41 :::CIS 37
Neutral Citation No. ( 2024:HHC:8531 ) XV. A criminal misconduct under the PC Act brings under its fold the intentional enrichment of a public servant himself, illicitly during the period of his office. Though section 7 relates to offences of a public servant being .
bribed and relates to the decision-making process, section 13 is not limited to any specific decision-making process or recommendation, but envisages the misappropriation of property entrusted to or under the control of the public servant. Such offence also brings under its fold an action of a public servant when he enriches himself illicitly during the period of his office.
Therefore, such an offence can be committed, without there being any specific decision-making process or any recommendation being made.
XVI. The legislature in its wisdom has not incorporated such general offences, not specifically relatable to any decision-making process or recommendation made and therefore, in the considered opinion of this court, when the allegation does not relate to an offence relatable to any decision or any recommendation resulting in the discharge of his official function or duties, rather it is a general allegation that the officer had enriched himself illicitly during the period of his office, there shall be no protection of Section 17A."
23. It was held in Kishor Kumar v. State of Bihar, 2023 SCC OnLine Patna 4587 that the purpose of enacting Section 17A of the Act is to give protection to the public servant from malicious and vexatious enquiry/investigation and likelihood of their harassment. It does not apply to demand of bribe made by the public servant to perform his duties. It was observed:
"31. Section 17A of the Act is applicable only when the alleged offences are relatable to any recommendation ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 38 Neutral Citation No. ( 2024:HHC:8531 ) made or decision taken by a public servant, which seems to be the main ingredient of this section.
32. If the intention of the legislature and object of the .
statute is to cover every enquiry, inquiry or investigation under this provision, then the words "where the alleged offence is relatable to any recommendation made or decision taken by the public servant" appear to be unnecessary, since even without these words, it would have conveyed the intention. Hence, it is manifestly evident that the intention of the Parliament/Legislation is not to insist on previous approval in relation to enquiry, inquiry or investigation in relation to every offence/act committed by the public servant, but only in relation to acts/offence relatable to any recommendation or decision taken by public servant in discharge of his official functions or duties.
33. In the case of Rajib Ranjan v. R. Vijaykumar, (2015) 1 SCC 513, the Supreme Court has held that if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, such misdemeanour on his part is not to be treated as an act in the discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be available to him.
34. In Devendra Kumar Singh (supra), it has been held that when the act of a public servant is ex faie criminal or constitutes an offence, a cognizable one, prior approval of the Government/competent person would not, at all, be necessary.
35. The protection, envisaged in Section 17A of the Act is not a blanket protection and when the act of any official/person is ex facie criminal or constitutes an offence, and further any act which involves amassing wealth disproportionate to his known source of income, breach of trust and misappropriation of funds, garnishing wealth by corrupt means being ex facie criminal, prior approval of the Government/competent authority would not be necessary.::: Downloaded on - 13/09/2024 20:35:41 :::CIS 39
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36. In the case of Rajendra Prasad @ Dr Rajendra Prasad (supra), a co-ordinate Bench of this Court has eloquently discussed the purpose behind Section 17A of the Act, holding that the purpose behind Section 17A of .
the Act is to give protection to public servants from the threat and ignominy of malicious and vexatious inquiry/investigation and the likelihood of them being put to trouble for taking honest decisions. Such public servants who have the responsibility to take major decisions must act fairly, fearlessly and impartially. Only to prevent any vexatious criminal action against them, without there being any foundational fact for the same, is prohibited by providing this protective insulation under Section 17A of the Act, in the form of a pre-requisite of prior sanction before launching any investigation or lodging the First Information Report. The protective shield is for an honest public servant and not for a corrupt one. There is a clear division between those acts which constitute an offence and those acts, though done while discharging the official duties of the public servant, but which do not constitute an act done in the exercise of official duties or functions which a public servant cannot act.
37. To insulate an action of a holder of public office, if it is in relation to any recommendation made by him or a decision taken in discharge of his official function or duties, such classificatory protection, which is a shield against unnecessary prosecution of honest officers, cannot be used as a sword to stifle prosecution for per-se criminal offences which can never be in discharge of official duty or connection with any recommendation made by a high position holder of public office.
38. In view of the aforesaid discussion upon law and the act of the petitioner, as per factual profile, can by no stretch of imagination, be held to be relatable to recommendation or decision taken by a public servant in discharge of his official functions or duties.::: Downloaded on - 13/09/2024 20:35:41 :::CIS 40
Neutral Citation No. ( 2024:HHC:8531 )
39. In the First Information Report, there is a specific allegation of demanding money, as a bribe, from the informant for manipulating the investigation, in which the petitioner, being the holder of a high post of Station .
House Officer of a Police Station/Inspector of Police, after pre-trap and post-trap memorandum, was found to be in possession of illegal money allegedly received by him as bribe.
40. Prima facie, on the basis of materials available on record, it appears that the petitioner misused his official position in garnishing wealth by corrupt means, which could not be said to be done in the discharge of his official duty. Where a criminal act is involved in the colour of authority, it is for the personal benefit of the public servant himself, then such act shall not be protected under Section 17A of the Act.
41. Accordingly, I hold that the petitioner is not entitled to any protection or no prior approval of the concerned authority is required under Section 17A of the Act in the facts and circumstances of the present case."
24. This Court also held in Abhishek Sharma (supra) that prior approval for conducting the enquiry, inquiry or investigation is required only when the offence is relatable to a decision taken or recommendation made by the public servant in the discharge of his official duties. It does not apply to the demand and acceptance of bribe. It was observed:
"A reading of Section 17A makes it evident that prior approval for conducting any enquiry, inquiry or investigation against public servant is required only when the offence alleged is relatable to a decision taken or recommendation made by the public servant in discharge of his official functions or duties with the rider that no ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 41 Neutral Citation No. ( 2024:HHC:8531 ) such approval shall be necessary for cases involving the arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or any other person. Section 17A of the Act has to be .
interpreted in a meaningful manner that bolsters the fight against corruption and at the same time protects honest officials."
25. In CBI v. Santosh Karnani, 2023 SCC OnLine SC 427 the ACB police station Ahmedabad received an information that the Income Tax Officers were demanding bribe. The ACB team went to detain and arrest the officer but he escaped. It was contended that the investigation could not have been conducted without the compliance of Section 17A. This submission was not accepted by the Hon'ble Supreme Court and it was held that a person accused of demanding a bribe did not require any previous approval of the Central Government as the accusation did not relate to any recommendation made or decision taken by him in his quasi-judicial or administrative capacity. It was observed:
"33. The contention that prior approval of investigation, as mandated under Section 17A of the Prevention of Corruption Act, has not been obtained and thus, the proceedings initiated against Respondent No. 1 stand vitiated, has no legal or factual basis. Section 17A merely contemplates that police officers shall not conduct any enquiry, inquiry or investigation into any offence alleged to have been committed by a public servant where the alleged offence is relatable to any recommendation made or decision taken in the discharge of official functions or ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 42 Neutral Citation No. ( 2024:HHC:8531 ) duties, without the previous approval of the competent authority. The first proviso to the section states that such approval is not necessary in cases involving the arrest of the person on the spot on the charges of accepting undue .
advantage.
34. As may be seen, the first proviso to Section 17A refers to cases wherein a public servant is charged with acceptance of an undue advantage or attempt thereof. A prior approval or sanction to investigate such an officer in a trap case is likely to defeat the very purpose of trap and the investigation, which is not the underlying intention of the legislature. The investigation against Respondent No. 1, being an accused of demanding a bribe, did not require any previous approval of the Central Government. That apart, the accusation against Respondent No. 1 does not revolve around any recommendations made or decisions taken by him in his quasi-judicial or administrative capacity." (emphasis supplied)
26. Kerala High Court held in T.A. Abdul Sathar v. State of Kerala, 2022 SCC OnLine Ker 7438 that the demand of bribe by a public official is not relatable to recommendation made or decision taken in the discharge of official duties. It was observed:
"19. The approval as provided in Section 17-A comes into play only when the alleged offence is relatable to any recommendation made or decision taken by a public servant in discharge of his official functions or duties. This view is fortified by the decision of this Court in Shankara Bhat v. State of Kerala [2021 (5) KHC 248] and Venugopal v. State of Kerala [(2021) 5 KLT 287].
20. In the present case, the allegation is that the petitioner and the other accused accepted bribe from the relatives of the defacto complainant. The acts alleged against the petitioner ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 43 Neutral Citation No. ( 2024:HHC:8531 ) are in no way relatable to any recommendation made or decision taken by the petitioner in discharge of his official functions and duties." (emphasis supplied) .
27. A similar view was taken by the Madhya Pradesh High Court in Baini Prasad Chansoriya v. State of M.P., 2022 SCC OnLine MP 5991: ILR 2023 MP 703 wherein it was observed:
"6.3 It is pertinent to point out that Section 17-A is attracted only when the offence alleged under the PC Act relates to the Act of "recommendation made or decision taken" but is not attracted when the offence relates to demand or acceptance of bribe, taking of illegal gratification or disproportionate assets etc. Since the instant case involves allegations which allegedly arise from recommendations made or decisions taken, the provision of Section 17-A gets attracted herein."
28. The Rajasthan High Court took a different view in Himanshu Yadav v. State of Rajasthan, 2022 SCC OnLine Raj 2960:
(2022) 1 RLW 485 and held that where the allegations of demanding illegal gratification related to the decisions of the petitioner, the enquiry or investigation requires the approval of the authority. The attempt to arrest a person may not be illegal but subsequent investigations are illegal. It was observed at page 490:
"25. Indisputably, the allegation of demanding illegal gratification relates to the discharge of official duties of the petitioner and no prior approval of the competent authority has been obtained. As such, the proceedings or the very attempt to arrest the petitioner on spot on the ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 44 Neutral Citation No. ( 2024:HHC:8531 ) charge of accepting the bribe (which has failed), may or may not be illegal but the proceedings thereafter, further investigation and lodging of FIR against the petitioner without the approval of the competent authority is void .
ab initio.
26. According to this Court both enquiry and investigation are proscribed sans prior approval of the competent authority. The embargo under section 17A operates wherever the alleged offence is claimed to have been committed in connection with the discharge of official duties. The allegation of demand of bribe definitely has a nexus with the work the petitioner was supposed to do as a public servant, hence the provision of section 17A of the Act of 1988 would create a roadblock in the way of the investigating officer to proceed further."
29. Gujarat High Court followed this judgment in Bhayabhai Gigabhai Sutreja v. State of Gujarat, 2020 SCC OnLine Guj 2266 and held as under:
"14. As per the plain reading of Section 17(A) latest amended, the preliminary inquiry or investigation is sine-qua-none, further without previous approval, the Investigating Officer cannot proceed with the matter.
Learned Senior Advocate Shree Panchal for the applicant has placed reliance upon the judgment passed by the High Court of Rajasthan at Jodhpur in S.B. Criminal Misc. (Pet) No. 159/2018 in case of Kailash Chandra Agarwal v. State of Rajasthan, wherein FIR was lodged on the basis of private complaint and no approval of the competent Government was taken before initiating the inquiry and registering the formal FIR. Manifestly, the newly inserted provision prohibits conducting of enquiry/inquiry or investigation into any offence under this Act alleged to have been committed by a public servant where the act alleged is relatable to any recommendation made or decision taken by such a public servant in discharge of official functions or duties. Manifestly, the questioned ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 45 Neutral Citation No. ( 2024:HHC:8531 ) decisions in furtherance whereof, the land subject matter of dispute was sold to and transferred in the name of the applicants Kailash Chandra Agarwal and Nand Bihari, were issued by the respective public servants concerned .
i.e. the Land Record Inspector Chhotaram, the Patwari Ramratan and the Tehsildar Tejmal Choudhary in discharge of their official duties. Therefore, before initiating any inquiry against the public servants under the provisions of the P.C. Act, prior approval of the Government was a sine-qua-non and the FIR could not have been registered without such approval. As the public servants cannot be prosecuted in this matter, registration of the FIR by the Anti-Corruption Bureau against the private individuals i.e. the applicants Kailash Chandra Agarwal and Nand Bihari is also totally illegal and amounts to a gross abuse of process of law."
30. Thus, there is a divergence of opinion regarding the applicability of Section 17A. Only the High Courts of Rajasthan and Gujarat have taken a view that the demand for bribes will attract the provision of Section 17A of the Act, whereas other High Courts have taken a view that Protection under Section 17A would not be available for demand for bribes as it is not relatable to the recommendations made or decision taken by a public servant. With utmost respect, it is difficult to agree with the view of the Rajasthan and Gujarat High Court as the demand for a bribe cannot be related to the recommendation made or decision taken by a public servant. The demand for bribes may be a reason or consequence for making a decision or ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 46 Neutral Citation No. ( 2024:HHC:8531 ) recommendation but such a reason or consequence is for the personal benefit of the public servant and is not relatable to the .
official function.
31. In the present case it was submitted that as per the prosecution, the petitioner had decided to purchase the PPE Kits from Bioaide. The prosecution further asserted that the money was demanded for the clearance of the bill related to the purchase made by the petitioner. Hence, the requirement that the offence alleged is relatable to any recommendation or decision taken by the public servant is satisfied. It is difficult to agree with this submission. The word relatable refers to an act closely connected to the recommendation or the decision that affects the recommendation or the decision and cannot refer to any extraneous act that would not have any impact on the recommendation or the decision. The demand for a bribe can influence the decision in the sense that further orders can be placed but that would not be in the discharge of the official duties because it is no function of any public servant to demand a bribe for doing any official act. A public servant is expected to do the official act uninfluenced by any extraneous consideration solely on the merits of the matter pending before him. The word ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 47 Neutral Citation No. ( 2024:HHC:8531 ) relatable cannot be so stretched to include everything that does not have any relation to the decision or recommendation made .
by the public servant.
32. As was pointed out by the Hon'ble Supreme Court, if two interpretations are possible, the interpretation that prevents corruption has to be preferred rather than the one that encourages corruption. Even, if two interpretations are possible namely (i) that the demand for a bribe is relatable to the recommendation made or decision taken by the public servant and (ii) that the demand for a bribe is not relatable to a recommendation made or decision taken by the public servant, the second interpretation has to be preferred because it will protect an honest public servant and discourage the dishonest public servant demanding bribe, whereas the first interpretation will encourage the public servants to demand bribe with impunity. Such an interpretation would defeat the very purpose of the enactment of the Prevention of Corruption Act.
33. Therefore, with due respect, it is difficult to agree with the judgments of the Rajasthan and Gujarat High Court that the demand for a bribe would be covered under Section 17A of the Prevention of Corruption Act and it is held that when the ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 48 Neutral Citation No. ( 2024:HHC:8531 ) demand for bribe is made for doing any official Act, the protection under Section 17A will not apply to such a demand .
because such a demand is not relatable to the discharge of the official function of the public servant. It is pertinent to mention here that Gauhati High Court had also differed from the views of Rajasthan and Gujarat High Courts in Rounak (supra) and held:
XXIII. In Himangshu Yadav (supra), decided by the Rajasthan High Court the fact of the case was that the petitioner therein, who was a Village Development Officer, demanded a sum of Rs. 7,000/- for clearing the bill of the informant of Rs. 32,000/-, and in the aforesaid factual backdrop it was held that allegation of demanding illegal gratification relates to discharge of official duties. Therefore, it cannot be said that a proposition was laid down that in all cases, the approval under Section 17(A) of the PC Act shall be required inasmuch as the allegation made in the aforesaid case is relatable to a decision of releasing a bill on payment of illegal gratification. That being the position, such decision shall not help the petitioner herein, in the given facts of the present case. XXIV. In Yogesh Nayyar (supra), the high court of Madhya Pradesh held in the given facts of the said case that lodging of FIR in absence of approval is not barred under section 17A of the PC, however, said provision prohibits investigation by a police officer without approval. This court is in respectful disagreement with such view, for the reasons as discussed and recorded hereinabove.
34. The other cited judgments relate to the impact of the violation of Section 17 A. Since it has been held that Section 17A ::: Downloaded on - 13/09/2024 20:35:41 :::CIS 49 Neutral Citation No. ( 2024:HHC:8531 ) does not apply to the demand of a bribe; therefore, these judgments will not assist the petitioner.
.
35. It was submitted that the State had filed another FIR after taking the approval under Section 17A, which shows that Section 17A applies to the demand of bribe. This submission cannot be accepted.
The interpretation of the statute is not based upon the acts done by the parties but upon the terminology used by the Legislature.
Therefore, even if a sanction was taken by the State in another case, that will not mean the demand of bribe is relatable to the recommendation made or decision taken by public servant in discharge of his official functions or duties.
36. Consequently, it is held that the protection under Section 17A will not apply to the present case and the enquiry and investigation conducted by the police will not be vitiated.
37. Thus, the present petition fails and the same is dismissed.
38. The observations made herein after are confined to the disposal of the present petition and will not be applicable, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 13th September, 2024 (Nikita) ::: Downloaded on - 13/09/2024 20:35:41 :::CIS