Kerala High Court
Venugopal V vs State Of Kerala on 8 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
CRL.MC NO. 3765 OF 2021
PETITIONER/S:
1 VENUGOPAL V
AGED 66 YEARS
S/O.VASUDEVAN NAIR, RESIDING AT VILANGOTTE HOUSE,
KANDANASSERY P.O., THRISSUR DISTRICT 680 102
2 ANTO THOMAS C.
AGED 46 YEARS
S/O.THOMAS, RESIDING AT CHEERAN HOUSE, PERAGAM
P.O., PERAGAM VILLAGE, CHAVAKKAD TALUK, THRISSUR
DISTRICT 680 506
3 P.SATHAR
AGED 62 YEARS
S/O.KAJA AVARASUKUTTY, PUTHUVEETTIL HOUSE,
PERAGAM P.O., THRISSUR 680 506, PERAGAM VILLAGE,
CHAVAKKAD TALUK, THRISSUR DISTRICT 680 506
4 K.P.UDAYAN
AGED 47 YEARS
S/O.SARASWATHY AMMA, KURUVANGAD PUTHAN VEETTIL
HOUSE, EAST NADA, GURUVAYUR,
THRISSUR DISTRICT 680 101
BY ADVS.
GEORGE POONTHOTTAM (SR.)
NISHA GEORGE
RESPONDENT/S:
1 STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM 682 031
2 THE DIRECTOR GENERAL
VIGILANCE AND ANTI CORRUPTION BUREAU, PMG, VIKAS
BHAVAN, P.O., OPPOSITE KSRTC DEPOT,
THIRUVANANTHAPURAM 695 033
SRI A RAJESH- SPL PP VACB
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.M.C.No.3765/2021
2
"CR"
R.NARAYANA PISHARADI, J
**********************
Crl.M.C.No.3765 of 2021
-------------------------------------
Dated this the 8th day of September, 2021
-------------------------------------------
ORDER
The petitioners are accused 1 to 4 in the case registered as V.C.No.04/2021/TSR by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Thrissur for the offences punishable under Section 7 of the Prevention of Corruption Act, 1988 (for short 'the Act') and under Sections 465, 471 and 120B of the Indian Penal Code.
2. The first accused was the Chairman and the second accused was the Vice Chairman of the Guruvayur Urban Co-operative Bank Limited (hereinafter referred to as 'the Bank') during the year 2017. Accused 3 and 4 were members of the Director Board of the Bank during that period.
3. The Bank had invited applications from eligible candidates to fill up six posts of appraisers and five posts of Crl.M.C.No.3765/2021 3 peons. The conducting of the written examination for selection was entrusted with an outside agency by name "Global Trust, Kottayam". The written examination was conducted on 12.11.2017. The short listed candidates were called for an interview by the Bank. It is alleged that the answer papers of the written examination, of those candidates who had given bribe and from whom bribe was demanded, were manipulated to ensure that they would secure high marks in the written examination. It is alleged that specific instructions were given to such candidates to fill up only answers fully known to them and the answers to the questions left out by them were later filled up with the help of the accused to ensure that they would get high marks. It is alleged that the final list of selected candidates was published on the same day of the interview and appointment orders were given to them on the same day itself.
4. One Rajeev, who was a candidate and who did not get selection, filed a complaint in the matter in the Court of the Enquiry Commissioner and Special Judge, Thrissur. The Special Court directed the Dy.S.P concerned to conduct a quick Crl.M.C.No.3765/2021 4 verification and to submit a report. The Dy.S.P, after conducting the preliminary enquiry, submitted a report before the Special Court, stating that the enquiry did not reveal any irregularity or malpractices which would attract an offence under the Act.
5. Rajeev, the de facto complainant, filed W.P.(C) No.27091/2019 before this Court challenging the findings in the preliminary enquiry report of the VACB. As per the judgment dated 15.03.2021 in the above writ petition, this Court rejected the preliminary enquiry report filed by the VACB and directed a fresh preliminary enquiry to be conducted by another Dy.S.P. The operative portion of the judgment of this Court in the above writ petition reads as follows:
"Considering the entire facts, it is clear that the impugned report in this case is not legally sustainable. This Court has ample power to interfere in appropriate cases, though invariably this Court should not interfere into the discretion yet to be exercised by the Special Judge. However, in the peculiar situation arising in this case, Ext.P3 report will stand rejected. The second respondent shall direct another Dy.S.P to conduct a preliminary enquiry, strictly confined to the contours of a preliminary enquiry as laid Crl.M.C.No.3765/2021 5 down by Supreme Court in Lalitha Kumari's case. The officer shall refer to the observations made in paras 4 to 11 of this judgment. Preliminary enquiry shall be completed at the earliest, at any rate within two months from the date of taking charge by the officer. Writ Petition is allowed as above".
(emphasis supplied)
6. In compliance with the judgment of this Court in the above writ petition, a fresh preliminary enquiry was conducted by the VACB. The report of the preliminary enquiry was submitted to the second respondent, the Director of VACB, with a recommendation for registration of FIR against the petitioners. On the basis of the findings made in the second preliminary enquiry report, Annexure-A1 FIR was registered against the petitioners as per the direction given by the second respondent.
7. This petition is filed by the accused under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashing Annexure-A1 F.I.R.
8. Heard Adv.Sri.George Poonthottam, learned senior counsel who appeared for the petitioners and also Sri.A.Rajesh, Crl.M.C.No.3765/2021 6 learned Public Prosecutor/Special Government Pleader (Vigilance).
9. Learned senior counsel for the petitioners contended that, this Court had arbitrarily exercised the jurisdiction under Article 226 of the Constitution of India to quash the first preliminary enquiry report, without leaving the matter to be considered by the Special Court in the normal course. Learned senior counsel also contended that, registration of Annexure-A1 F.I.R against the petitioners for an offence under Section 7 of the Act and the consequent investigation into that offence alleged to have been committed by them in the course of discharge of their official duties, without the previous approval of the competent authority under Section 17A of the Act, amount to clear violation of the procedure established by law. Learned senior counsel further contended that, in the absence of such approval under Section 17A of the Act, continuation of the proceedings against the petitioners pursuant to Annexure-A1 F.I.R, constitutes abuse of the process of law and that the FIR is liable to be quashed. Crl.M.C.No.3765/2021 7
10. Per contra, learned Public Prosecutor submitted that, the petitioners cannot raise any contention in this petition regarding the legality of the judgment of this Court in W.P.(C) No.27091/2019. Learned Public Prosecutor contended that, the offence under Section 7 of the Act allegedly committed by the petitioners, does not relate to any decision or recommendation made by them in discharge of their official functions or duties. Therefore, learned Public Prosecutor would submit that, previous approval of the competent authority as contemplated under Section 17A of the Act was not required in this case for registration of the FIR against the petitioners and conducting investigation into that offence allegedly committed by them.
11. Section 17A was introduced in the Act by way of amendment, as per Act 16 of 2018, with effect from 26.07.2018. Section 17A of the Act reads as follows:
"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.- No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by Crl.M.C.No.3765/2021 8 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."Crl.M.C.No.3765/2021 9
12. 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 enquiry 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 Crl.M.C.No.3765/2021 10 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 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 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.
13. The crucial question to be decided in this petition is, whether previous approval as contemplated under Section 17A of the Act was necessary before registration of Annexure-A1 FIR and commencement of investigation into the offence under Section 7 of the Act allegedly committed by the petitioners.
14. Admittedly, the petitioners were public servants as defined under Section 2(c) of the Act at the time when they allegedly committed the offence under Section 7 of the Act. Crl.M.C.No.3765/2021 11 Admittedly, the offence under Section 7 of the Act alleged to have been committed by the petitioners was in relation to the appointment of staff in the Bank. Admittedly, Annexure-A1 FIR was registered against the petitioners without obtaining the previous approval of the competent authority as envisaged under Section 17A of the Act.
15. At this juncture, it is to be noted that, in the judgment in W.P.(C) No.27091/2019, this Court had not given any specific direction to the VACB to register FIR in case the second preliminary enquiry revealed commission of any cognizable offence under the Act. However, this Court had, in the above judgment, referred to the decision of the Apex Court in Lalita Kumari v. Government of Uttar Pradesh : (2014) 2 SCC 1 and considered the scope of preliminary enquiry. It was thereafter this Court quashed the first preliminary enquiry report and issued the direction to conduct a second preliminary enquiry. The ultimate direction issued by this Court, after quashing the first preliminary enquiry report, to conduct a fresh preliminary enquiry, cannot be construed or considered in isolation of the Crl.M.C.No.3765/2021 12 observations in the above judgment which precede the said direction. Once a constitutional court passes an order authorizing the investigating agency to conduct preliminary enquiry into a matter, such agency is invested with the requisite power and jurisdiction to pursue the proceeding to a logical culmination. A direction to register FIR and to conduct investigation, in case the second preliminary enquiry revealed commission of any cognizable offence under the Act, is implicit in the judgment of this Court in W.P(C) No.27091/2019.
16. As noticed earlier, the bar under Section 17A of the Act operates against the police officer concerned. There is no bar under Section 17A of the Act which prevents a court from passing an order or issuing direction to conduct enquiry or investigation into an offence under the Act.
17. When a constitutional court orders preliminary enquiry or investigation, into an offence under the Act allegedly committed by a public servant, is it necessary for the police officer concerned to obtain previous approval of the competent authority, as contemplated under Section 17A of the Act, to Crl.M.C.No.3765/2021 13 conduct such enquiry or investigation?
18. At this juncture, the dictum laid down by the Constitution Bench of the Supreme Court in the case of State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal : (2010) 3 SCC 571, on consideration of the impact and scope of Section 6 of the Delhi Special Police Establishment Act, 1946 (for short 'the DSPE Act'), assumes significance.
19. The issue for consideration before the Constitution Bench in CPDR (supra) was, whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, could direct the Central Bureau of Investigation (CBI), established under the DSPE Act, to investigate into cognizable offence, which is alleged to have taken place within the territorial jurisdiction of a State, without the consent of the State Government. Section 5 of the DSPE Act empowered the Central Government to extend the powers and jurisdiction of the Special Police Establishment to any area in a State. Section 6 of the DSPE Act provided that, nothing contained in Section 5 shall be Crl.M.C.No.3765/2021 14 deemed to enable any member of the Delhi Special Police Establishment to exercise powers and jurisdiction in any area in a State, without the consent of the Government of that State. After noticing the scope and amplitude of Sections 5 and 6 of the DSPE Act, the Constitution Bench answered the question as follows:
"The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts.......... In the final analysis, our answer to the question referred is that a direction by the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, to the CBI to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State will neither impinge upon the federal structure of the Constitution nor violate the doctrine of separation of power and shall be valid in law".Crl.M.C.No.3765/2021 15
20. The dictum laid down by the Constitution Bench in CPDR (supra) indicates that, irrespective of there being any statutory provision imposing any restriction on the power of a police officer, when a Constitutional Court passes an order to conduct enquiry or investigation into an offence under the Act, the bar under Section 17A of the Act does not operate against the police officer concerned.
21. The decision of a three Judge Bench of the Supreme Court in Manohar Lal Sharma v. The Principle Secretary :
AIR 2014 SC 666 is also relevant in this context. The question before the Apex Court in that case was, whether the approval of the Central Government was necessary under Section 6A of the DSPE Act in a matter where the inquiry/investigation into the crime under the Prevention of Corruption Act, was being monitored by the Court.
22. Section 6A of the DSPE Act then read as under:
"Section 6A -Approval of Central Government to conduct inquiry or investigation. - (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Crl.M.C.No.3765/2021 16 Prevention of Corruption Act, 1988 except with the previous approval of the Central Government where such allegation relates to - (a) the employees of the Central Government of the level of Joint Secretary and above; and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.
(2) Notwithstanding anything contained in sub-
section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988."
23. Section 6A of the DSPE Act, thus, provided for obtaining previous approval of the Central Government to conduct inquiry or investigation where the allegations of commission of an offence under the PC Act related to the employees of the Central Government of the level of the Joint Secretary and above.
24. In Manohar Lal Sharma(supra), the Apex Court held that the principle of law laid down in CPDR (supra) in respect of Crl.M.C.No.3765/2021 17 Section 6 of the DSPE Act can be extended while considering applicability of Section 6A of that Act to the court monitored investigations. It was held as follows:
"If Section 6 necessitates the prior sanction of the State Government before investigation is carried out by the CBI in terms of that provision and the principle of law laid down by the Constitution Bench of this Court is that the constitutional courts are empowered to direct the investigation of a case by CBI and in such cases no prior sanction of the State Government is necessary under Section 6 of the DSPE Act, there is no reason why such principle is not extended in holding that the approval of the Central Government is not necessary under Section 6A of the DSPE Act in a matter where the inquiry/ investigation into the crime under the PC Act is being monitored by the Court. It is the duty of this Court that anti-corruption laws are interpreted and worked out in such a fashion that helps in minimizing abuse of public office for private gain".
Ultimately, the Apex Court held that the approval of the Central Government is not necessary under Section 6A of the DSPE Act in a matter where inquiry/investigation into the crime under the PC Crl.M.C.No.3765/2021 18 Act is being monitored by the Supreme Court and in cases which are directed by the Court to be registered and the inquiry/investigation thereon is actually being monitored by it.
25. True, the principle laid down by the Apex Court in Manohar Lal Sharma (supra) is with regard to the investigation monitored by that Court. However, the Apex Court has held in this decision that the principle of law laid down in respect of Section 6 of the DSPE Act can be extended while considering applicability of Section 6A of that Act to the court monitored investigations. The principle applies to investigation directed by constitutional courts. Once a constitutional court examines and satisfies itself about the necessity or desirability of an enquiry or investigation into an offence under the Act allegedly committed by a public servant, the requirement of previous approval by the competent authority is substituted by a more judicious determination. Once a constitutional court finds that such enquiry or investigation is required, approval by another authority for such enquiry or investigation cannot be permitted so as to render the decision of the constitutional court nugatory. The competent Crl.M.C.No.3765/2021 19 authority cannot be allowed to sit in appeal over the decision made by a constitutional court.
26. Subsequently, in Subramanian Swamy v. Union of India : AIR 2014 SC 2140, the Constitution Bench of the Supreme Court held that Section 6A(1) of the DSPE Act, which required approval of the Central Government to conduct any inquiry or investigation into any offence alleged to have been committed under the PC Act, 1988 where such allegation related to (a) the employees of the Central Government of the level of Joint Secretary and above and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, government companies, societies and local authorities owned or controlled by the Government, is invalid and violative of Article 14 of the Constitution.
27. The purpose behind the enactment of Section 17A of the Act is to give protection to public servants from the threat and ignominy of malicious and vexatious inquiry/investigation and likelihood of harassment for taking honest decisions. This provision aims to ensure that those public servants who have the Crl.M.C.No.3765/2021 20 responsibility to take vital decisions are not subjected to frivolous complaints and to make available a screening mechanism. This purpose is fully achieved when a constitutional court takes decision with regard to the inquiry/investigation into an offence allegedly committed by a public servant.
28. The aforesaid view is supported by the recent decision of the Bombay High Court in Anil Vasantrao Deshmukh v. State of Maharashtra (2021 SCC OnLine Bom 1192). It was a case in which a Division Bench of the Bombay High Court had directed preliminary enquiry by the CBI into the corrupt practices allegedly committed by the former Home Minister of the State of Maharashtra. That order directing preliminary enquiry was upheld by the Supreme Court by order dated 08.04.2021. The CBI then conducted preliminary enquiry as ordered by the Bombay High Court. On the basis of the findings in the preliminary enquiry, the CBI registered a case against the former Home Minister of the State of Maharashtra under Section 7 of the Act and Section 120B of the IPC. No previous approval of the competent authority was obtained by the CBI for conducting investigation of the case. Crl.M.C.No.3765/2021 21 One among the several grounds raised in the writ petition filed, challenging the registration of the case by the CBI, was that no previous approval as contemplated under Section 17A of the Act was obtained by the CBI for registration of the FIR and conducting the investigation. The Bombay High Court held that the restriction under Section 17A of the Act with regard to the enquiry/investigation operates against the investigating agency and not against the Court and once a constitutional court examines and satisfies itself about the necessity and desirability of the enquiry or investigation, previous approval of the competent authority envisaged under Section 17A of the Act is not necessary to conduct such enquiry/investigation.
29. The Special Leave Petition, SLP (Crl) No.5821/2021, filed against the aforesaid decision of the Bombay High Court was dismissed by the Supreme Court by order dated 18.08.2021 by observing that there was no error in the impugned judgment.
30. Learned senior counsel for the petitioners pointed out that, it was on 30.05.2018 that the Special Court ordered to conduct preliminary enquiry on the complaint filed against the Crl.M.C.No.3765/2021 22 accused in that court and at that time, Section 17A of the Act was not in existence and therefore, no previous approval of the authority concerned was necessary to conduct the preliminary enquiry. However, when this Court set aside the first preliminary enquiry report and ordered to conduct fresh preliminary enquiry, Section 17A of the Act had come into force. Learned senior counsel also pointed out that it was on 24.06.2021 that Annexure-A1 F.I.R was registered against the petitioners. Learned senior counsel also invited the attention of this Court to the decision in Ramesh v. C.B.I [2020 (4) KHC 220: 2020 (4) KLT 351] in which this Court considered whether the amendments made to the Act in the year 2018 have prospective or retrospective effect.
31. In Ramesh (supra), this Court has observed as follows:
"Yet another contention set up by the petitioners was that in the light of Section 17A of the amended Act, the investigation followed by prosecution without prior approval was non est and liable to be quashed. As indicated above, there is nothing in the Statute to indicate that it was retrospective. Section 17A prohibits any enquiry or inquiry or investigation into any offence, without the approval of the Crl.M.C.No.3765/2021 23 authorities mentioned in Section 17A alleged to have been committed by a public servant under the 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. The approval as contemplated under the Act, is basically to protect honest and upright officers and to insulate them against unnecessary victimization or harassment consequent to taking of administrative decisions. It is also intended to embolden upright and honest officers in taking independent decision in public interest. Essentially, the purpose of the Prevention of Corruption Act is to eradicate corruption in administration and to punish corrupt officers. It also has to strengthen the vigilance wing of the Government empowered to investigate corruption in administrative set up.
Hence no provision of the Statute, can be interpreted to dilute the object of the Act, and which may have the effect of weakening the powers of investigation agencies entrusted with such task. If the Amendment is held to be retrospective, several cases pending trial in which investigation commenced prior to amendment which are in the various stages of trial or investigation will be prejudicially affected. All those cases will be bad for absence of prior approval under Section 17A of the Amended Act. Such an interpretation cannot be Crl.M.C.No.3765/2021 24 given in the absence of any provision explicitly or impliedly indicating retrospectivity".
Thereafter, this Court concluded and held as follows:
"Hence, the Prevention of Corruption (Amendment) Act, 2018 has to be held to be prospective and has no application to cases registered prior to amendment and pending under various stages of investigation and to cases in which investigation has been completed and are pending trial".
(emphasis supplied)
32. The contention of the learned senior counsel appears to be that, though the complaint against the petitioners was filed in the competent court before the amendment of the Act, the registration of the FIR was subsequent to the amendment and therefore, prior approval of the competent authority was required for registration of the FIR and conducting investigation.
33. At this juncture, the decision of the Apex Court in Yashwant Sinha v. C.B.I : (2020) 2 SCC 338 has to be taken note of. In this decision, the Supreme Court considered the importance of the provision contained in Section 17A of the Act and it was observed as follows:
"In terms of Section 17A, no police officer is permitted to conduct any enquiry or inquiry or Crl.M.C.No.3765/2021 25 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 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 or 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 Section 17A was inserted. The complaint is dated 4.10.2018. Para 5 sets out the relief which is sought in the complaint which is to register an FIR under various provisions. ..... the petitioners have filed the complaint fully knowing that Section 17A constituted a bar to any inquiry or 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 17A 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 Crl.M.C.No.3765/2021 26 challenge to Section 17A. Under the law, as it stood, both on the date of filing the petition and even as of today, Section 17A 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 approval in terms of Section 17A but when it comes to the relief sought in the writ petition, there was no relief claimed in this behalf. Even proceeding on the basis that on petitioners' complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to Section 17A. I am, therefore, of the view that though otherwise the petitioners in Writ Petition (Criminal) No. 298 of 2018 may have made out a case, having regard to the law actually laid down in Lalita Kumari [Lalita kumari v. State of U.P : (2014) 2 SCC 1] and more importantly, Section 17A of the Prevention of Corruption Act,in a review petition, the petitioners cannot succeed. However, it is my view that the judgment sought to be reviewed, would not stand in the way of the first respondent in Writ Petition (Criminal) No. 298 of 2018 from taking action on Ext.P-1, complaint in accordance with law and subject to first respondent obtaining previous approval under Section 17A of the Prevention of Corruption Act."Crl.M.C.No.3765/2021 27
34. The above observations of the Supreme Court in Yashwant Sinha (supra) constitute authority for the proposition that, in respect of a complaint filed or information given to a police officer, after the insertion of Section 17A in the Act, regarding commission of an offence committed by a public servant under the Act and which relates to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, unless there is previous approval of the authority concerned, the police officer cannot conduct any enquiry or investigation into such offence.
35. As far as the present case is concerned, the complaint against the petitioners was filed in the competent court and the first preliminary enquiry was ordered by that court and it was commenced before the amendment of the Act. The various proceedings or steps taken on the basis of that complaint, including the second preliminary enquiry conducted as per the order passed by this Court, can only be treated as a continuous and whole process. The second preliminary enquiry conducted and the registration of the FIR against the petitioners can only be Crl.M.C.No.3765/2021 28 treated as a continuation of the proceedings which commenced on the filing of the complaint in the competent court long before the introduction of Section 17A in the Act.
36. The embargo under Section 17A of the Act applies only to such enquiry or investigation which is initiated after the introduction of that provision in the statute. The legislative intent is certainly not to set the clock back to invalidate investigation or enquiry which was commenced on the basis of a complaint which was filed prior to the coming into force of that provision.
37. Of course, this Court cannot and does not ignore the observation made in Yashwant Sinha (supra) that "even proceeding on the basis that on petitioners' complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to Section 17A". But, as already noticed, the complaint which was the subject matter of discussion in Yashwant Sinha (supra) was one filed after the introduction of Section 17A in the Act. The petitioners in that case had not sought any relief in the writ petition with regard to prior approval Crl.M.C.No.3765/2021 29 under Section 17A of the Act. As far as the present case is concerned, the complaint had been filed in the competent court before the the introduction of Section 17A in the Act. Therefore, it was not necessary for the writ petitioner in W.P.(C) No.27091/2019, the de facto complainant, to seek any such relief in that writ petition or for this Court to pass any order in that regard.
38. The issue involved can be considered also from another angle. The requirement of seeking previous approval pre-supposes that the offence under the Act allegedly committed by the public servant is relatable to any recommendation made or decision taken by him in discharge of his official functions or duties.
39. In Dr. Subramanian Swamy v. Dr. Manmohan Singh, (2012) 3 SCC 64 : AIR 2012 SC 1185, it was observed as follows:
"Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian democracy and the Rule of Law. The magnitude of corruption in our public life is Crl.M.C.No.3765/2021 30 incompatible with the concept of a socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our preambular vision. Therefore, the duty of the Court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it. .... These protections are not available to other citizens. Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of Crl.M.C.No.3765/2021 31 honesty and justice and good governance as opposed to escalation of corruption."
(emphasis supplied)
40. As held in Dr. Subramanian Swamy (supra), a provision like Section 17A in an anti-corruption law has to be interpreted in such a fashion as to strengthen the fight against corruption. 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.
41. In Parkash Singh Badal v. State of Punjab: AIR 2007 SC 1274, it has been held as follows:
"The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government. The purpose for which they are performed protects these acts from criminal prosecution. However, there is an exception. 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".Crl.M.C.No.3765/2021 32
42. 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".
43. In T.O.Sooraj v. State of Kerala : 2021 SCC OnLine Ker 2896, this Court has held as follows:
"The expression "discharge of his official functions or duties" in Section 17A of the Act reflects the legislative intent that the protection envisaged is not a blanket protection. The purpose is to protect an honest and responsible public servant if the recommendation made or decision taken by him is in discharge of his official functions or duties. As a necessary corollary, previous approval is required only if the recommendation made or decision taken is directly concerned with the official functions or duties of the public servant. When a recommendation or decision is made by a public Crl.M.C.No.3765/2021 33 servant, which is not directly and reasonably connected with his official functions or duties, he is not entitled to get the protection under Section 17A of the Act".
44. In the present case, the offence alleged against the petitioners is under Section 7 of the Act, as it stood before amendment by Act 16 of 2018 (the offensive act was allegedly committed in the year 2017), which penalises the act of a public servant, accepting or attempting to obtain any gratification other than legal remuneration as a motive or reward for doing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering any service or disservice to any person. The specific allegation against the petitioners in this case is that they demanded bribe from the relatives of certain candidates for giving the candidates appointment in the Bank. Such an act cannot be considered as an act which has reasonable connection with the discharge of the official duties or functions of the petitioners.
45. In H.H.B.Gill v. The King : AIR 1948 PC 128, it has been observed as follows:
Crl.M.C.No.3765/202134
"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".
46. Accepting bribe or making attempt to obtain bribe cannot be considered as an act done by the petitioners in discharge of their official functions or duties. Though the offence allegedly committed by the petitioners was in relation to appointment of staff in the Bank, accepting bribe or making demand for bribe for such appointment, cannot be considered as an act which is directly related to any decision or recommendation made by the petitioners in discharge of their official duties or functions. The act, which constitutes the offence under the Act, which was allegedly committed by the petitioners, Crl.M.C.No.3765/2021 35 had no reasonable connection with their official functions or duties. Therefore, Section 17A of the Act has no application to the facts of the case.
47. The discussion above leads to the following conclusions. The bar under Section 17A of the Act with regard to conducting enquiry/investigation operates against the police officer or the investigating agency concerned and it does not create any fetter on the power of a constitutional court to order preliminary enquiry or investigation into an offence under the Act. Once a constitutional court examines and satisfies itself about the necessity or desirability of an enquiry or investigation into an offence under the Act and passes an order to conduct enquiry or investigation, the police officer concerned is not obliged to obtain previous approval of the competent authority, as envisaged under Section 17A of the Act, to conduct such enquiry or investigation.
48. Even otherwise, as far as the present case is concerned, for two reasons, previous approval of the competent authority under Section 17A of the Act was not necessary for registration of Annexure-A1 FIR and the investigation pursuant to it. In the Crl.M.C.No.3765/2021 36 first place, the complaint was filed in the competent court before the introduction of Section 17A in the Act and therefore, the said provision has no application to the proceedings commenced on the basis of that complaint. In the second place, accepting bribe or making attempt to obtain bribe, the act allegedly committed by the the petitioners, cannot be considered as an act done by them in discharge of their official functions or duties. Such act has no reasonable and direct connection with their official functions or duties.
49. In the light of the conclusions above, the petition is liable to be dismissed.
50. After conclusion of the arguments in the case, learned senior counsel for the petitioners had brought to the notice of this Court the interim order passed by the Division Bench of this Court in the appeal W.A.No.1078/2021 filed by the Bank against the judgment in W.P.(C) No.27091/2019. The legality and validity of the judgment in W.P.(C) No.27091/2019 are now under challenge before the Division Bench in the above appeal. It is made clear that any observation made in this order does not in Crl.M.C.No.3765/2021 37 any way touch upon the correctness or legality of the judgment of this Court in the abovementioned writ petition.
Consequently, the petition is dismissed.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr Crl.M.C.No.3765/2021 38 APPENDIX OF CRL.MC 3765/2021 PETITIONER'S ANNEXURE: Annexure A1 CERTIFIED COPY OF THE FIR IN CRIME NO.4/2021/TSR OF VIGILANCE AND ANTI- CORRUPTION BUREAU, THRISSUR, ON THE FILES OF THE HON'BLE COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE) THRISSUR RESPONDENTS' ANNEXURES: NIL TRUE COPY PS TO JUDGE