[Cites 21, Cited by 0]
Bombay High Court
Tanaji Balasaheb Gambhire vs The State Of Maharashtra on 2 April, 2026
Author: A. S. Gadkari
Bench: A. S. Gadkari
2026:BHC-AS:15943-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4680 OF 2021
Mr. Tanaji Balasaheb Gambhire
Age:37 years, Occu: Self-employed,
R/o :- CTS-296, Shukrawar Peth,
Laxmi Apartment, White House Lane,
Near Shivaji Maratha High School,
Pune- 411002, Maharashtra ... Petitioner
V/s.
1.The State of Maharashtra
Through Additional Chief Secretary,
Home Department,
Government of Maharashtra,
Annex Building, Mantralay,
Mumbai-400 032, Maharashtra
E-mail: [email protected]
2.The Director General
Anti-Corruption Department,
6th Floor, Sir Pochkhanwala Road,
Worli Police Camp, Worli,
Mumbai 400030, Maharashtra
E-mail: [email protected]
3.The Superintendent of Police
Anti-Corruption Department,
Central Building Compound,
C- Barrack, Pune-411 005, Maharashtra
E-mail: [email protected]
4. The Municipal Commissioner
Pune Municipal Corporation,
Shivaji Nagar, Pune - 411 005,
Maharahstra, Email: [email protected] ... Respondents
______________________
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Mr. Rajiv Chavan, Senior Advocate, a/w Mr. Rohan Mahadik, Ms. Mekhala
More, Ms. Bharvi Samel, Mr. Bhavin Vora, Ms. Asmi Desai & Ms. Sonal Pandey,
i/b The Juris Partners, Adv for Petitioner.
Mr. Ajay Patil, A.P.P. for Respondent - State.
Mr. Sanjeev Kadam, Sr. Adv. a/w Mr. Abhijit Kulkarni, Ms. Varsha Thorat, Mr.
Rahul Garg, Ms. Sweta Shah, Mr. Gourav Sahane & Mr. Abhishek Roy, Adv.
For Respondent No. 4 - PMC
______________________
CORAM : A. S. GADKARI AND
RANJITSINHA RAJA BHONSALE, JJ.
RESERVED ON : 2nd DECEMBER 2025
PRONOUNCED ON : 2nd APRIL 2026
JUDGMENT [Per : RANJITSINHA RAJA BHONSALE, J.] :-
1) Rule. Rule made returnable forthwith and heard finally with the
consent of the parties.
2) The Constitution Bench of the Hon'ble Supreme Court in the case
of Subramanian Swamy V. Director, C.B.I reported in (2014) 8 SCC 682, taking
very serious note of the level of corruption prevailing in the country and the
objects of enacting the Prevention of Corruption Act, has observed as under:
"72. Corruption is an enemy of nation and tracking down corrupt public
servant, howsoever high he may be, and punishing such person is a
necessary mandate under the PC Act, 1988. The status or position of
public servant does not qualify such public servant from exemption
from equal treatment. The decision-making power does not segregate
corrupt officers into two classes as they are common crimedoers and
have to be tracked down by the same process of inquiry and
investigation.
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75. Corruption corrodes the moral fabric of the society and corruption by
public servants not only leads to corrosion of the moral fabric of the society
but is also harmful to the national economy and national interest, as the
persons occupying high posts in the Government by misusing their power
due to corruption can cause considerable damage to the national economy,
national interest and image of the country.
81.........In the supplementing judgment, A.K. Ganguly, J. while
concurring with the main judgment delivered by G.S. Singhvi, J.
observed: (Subramanian Swamy case22 , SCC p. 100, para 68)
"68. Today, corruption in our country not only poses a grave
danger to the concept of constitutional governance, it also
threatens the very foundation of the Indian democracy and the rule
of law. The magnitude of corruption in our public life is
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."
3) By the present Petition, under Articles 226 and 227 of the
Constitution of India, the Petitioner seeks to challenge the impugned Orders
dated 16th April 2019 and 25th April 2019 passed by the Respondent No. 4
Municipal Commissioner, Pune Municipal Corporation. The Petitioner further
seeks directions to the Respondent Nos. 2 and 3 to conduct the open enquiry
into the allegations of corrupt practice by Mr. Prashant Waghmare, as more
particularly stated in the Petitioner's complaint dated 18 th May 2016.
According to the Petitioner, the Respondent No. 4 by the said Orders seeks to
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protect and cover up for the serious acts of corruption and amassing of
disproportionate assets as compared to the known sources of income by Mr.
Prashant Waghmare. Further, directions are sought, to lodge an FIR.
4) Facts briefly stated are as follows:-
4.1) The Petitioner filed a complaint with the Superintendent of
Police, Anti Corruption Bureau, vide letter dated 18 th May 2016 and raised the
issue of disproportionate assets by one Shri. Prashant Madhukar Waghmare
(Mr. Waghmare), who worked as a City Engineer at Pune Municipal
Corporation. The Petitioner alleged that, Mr. Waghmare owns
disproportionate assets approximately to the tune of Rs. 2000 Crores. That,
Mr. Waghmare along with and aided by his wife Mrs. Pradnya Waghmare and
brother Mr. Pramod Madhukar Waghmare and their Companies has routed
money earned through corruption to develop the disproportionate assets.
That, a clear case of disproportionate assets earned through illegal and
corrupt means is made out and the same is required to be enquired into.
4.2) That, Mr. Waghmare has got investments and interest in the
construction and development carried out in Pune City. That, Mr. Waghmare
has got certain connections with the builders in Pune City. That, the builders
have carried out constructions without permissions and that the said illegal
constructions are protected by Mr. Waghmare. That, Mr. Waghmare has
earned disproportionate assets by making available TDR and loading the same
on plots where TDR could not have been loaded. That, Mr. Waghmare misused
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his public office for earning huge disproportionate assets. That, a case of
disproportionate assets is clearly made out and that assets are earned through
illegal and corrupt means. That, the same is required to be enquired into and
appropriate legal action be taken in accordance with law. In the complaint, the
Petitioner has given details of the persons/family members who have assisted
Mr. Waghmare so also the details of the companies, which have been formed
and used in the activities.
4.3) That, Mr. Waghmare was appointed as an Engineer in the Pune
Municipal Corporation in the year 1994 and since 8 th August 2003, worked as
City Engineer, Head of Building Permission Department of Pune Municipal
Corporation. Mr. Waghmare established and used various companies to re-
route corrupt money with the help of family members, friends, architects and
builders etc. In the Petition, the Petitioner has set out the instances and details
of such transactions.
4.4) That, the Petitioner vide Complaint dated 18 th May 2016 has
demonstrated the need of an enquiry and investigation in the said matter.
After a period of nearly three and half years, the Enquiry Officer, Mr. Sanjay
Patange, ACB, Pune, recorded the statement of the Petitioner on 12 th
November 2018. Based on the said statement, the Enquiry Officer vide letter
dated 11th December 2018 was directed to conduct a secret/discreet enquiry
against Mr. Waghmare, in respect of the allegations.
4.5) During the discreet enquiry the concerned Officer, made the
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following observations:-
(i) Mr. Waghmare, in his preliminary statement, gave some
information in respect of his family and service;
(ii) Mr. Waghmare, despite of being granted numerous opportunities
did not give information regarding the education expenses of his son,
the overseas trips, details of shares, information regarding bank and
postal deposits etc;
(iii) Details regarding the properties, were not given.
(iv) On 29th January 2019, Mr. Waghmare, in reply to information
sought regarding the income and expenses of Mrs. Waghmare, informed
that the same is personal information of his wife and he would give the
same if he received the permission from her in that regard.
(v) Mr. Waghmare, did not give information regarding the companies
owned by his mother, wife and brother. Internet search, conducted by
the Enquiry Officer, revealed that 5 construction companies and few
other companies were floated and owned by his mother, wife and
brother. The books of accounts, income tax returns, of the said
companies were not provided by Mr. Waghmare.
(vi) As Mr. Waghmare did not fully co-operate with the Enquiry
Officer and did not provide the required information, details and
documents the further enquiry could not be carried out.
(vii) That, keeping in mind the principle of natural justice Mr.
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Waghmare was given ample opportunity to provide the required details
and information. The same was not provided, citing personal and
professional reasons;
(viii) That, considering the nature of allegations and facts, it was felt
necessary that an open enquiry be conducted.
4.6) The Enquiry Officer, Mr. Sanjay Patang, considering the nature of
allegations, non-cooperation of Mr. Waghmare and the need of a detailed
enquiry and investigation, by his letter dated 31 st January 2019 addressed to
the Superintendent of Police, ACB, Pune sought permission for conducting the
open enquiry against Mr. Waghmare and his family members.
4.7) The Superintendent of Police, ACB, Pune vide letter dated 31 st
January 2019 addressed to the Director General, ACB, Mumbai, recommended
and requested that the case be processed to seeking "Prior approval" of the
Competent Authority, sought permission for open enquiry of Mr. Waghmare
and his family members. This was based on the fact that, the Enquiry Officer
had conducted a discreet inquiry, still there was information which was
required to be gathered as the scope of the enquiry was vast and Mr.
Waghmare was not co-operating with the enquiry. Information regarding the
Companies and required documents were not being made available.
4.8) The Competent Authority i.e. Commissioner of the Pune
Municipal Corporation/Respondent No. 4, by its Order dated 25 th April 2019
rejected the sanction sought by the ACB for an open enquiry. The said
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rejection was based on the statement and written explanation of Mr.
Waghmare and the documents produced by him. A hearing was also granted
to Mr. Waghmare by the Competent Authority. The Competent Authority
considered the explanations and documents (very same document which were
sought by the Investigation Officer and not provided to the Investigating
Officer by Mr. Waghmare) produced by Mr. Waghmare. The Competent
Authority, concluded that, no case was made out against Mr. Waghmare.
4.9) Based on the refusal to grant previous approval and the directions
of the Director General, ACB, Mumbai, the Deputy Superintendent of Police,
ACB, Mumbai issued directions to the Superintendent of Police, ACB, Pune
vide letter dated 28th June 2019 for closure of ongoing confidential enquiry of
Mr. Waghmare. Superintendent of Police, ACB, Pune, further issued directions
vide letter dated 18th July 2019 for closure of the ongoing confidential enquiry
against Mr. Waghmare. All of this, was done and based on the Order dated
16th April 2019 rejecting the sanction by the Competent Authority/Respondent
No. 4.
4.10) The Information Officer, ACB, Pune with regard to the RTI
application dated 27th August 2019, provided only cursory and casual
information vide letter dated 23rd September 2019 to the Petitioner. Vital and
important information was suppressed. In other similar cases, the Information
Officer has provided documents, which documents in the case of Mr.
Waghmare were marked as confidential and not provided. The Petitioner's RTI
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Appeal was rejected by Order dated 20th November 2019.
4.11) The Competent Authority i.e. Commissioner of the Pune
Municipal Corporation/Respondent No. 4, by an Order dated 16 th April 2019
refused to grant previous approval to hold an open enquiry. Based on the
Order, communication dated 25th April 2019, 28th June 2019 and 18th July
2019 were issued. The said Orders dated 16 th April 2019, and 25th April 2019
are the subject matter of challenge in the present petition.
5) Mr. Rajiv Chavan, learned Senior Counsel appearing for the
Petitioner submitted that:-
5.1) The rejection of the grant of sanction of the open enquiry vide
Order dated 16th April 2019 and 25th April 2019 and all further
communications based on the said Orders are untenable and illegal. The
Respondent No. 4, by exceeding its authority and power and without an
application of mind and for reasons best known has rejected the sanction for
an open enquiry. The conduct of Respondent No. 4, raises serious doubts, on
the unbiased and impartial duties by the Competent Authority. The
Respondent No. 4, has exceeded his powers, by himself conducting an enquiry
and investigation, which in fact is the job of the Enquiry Officer/ Officer of the
ACB under section 17 of The Prevention of Corruption Act,1988 (PC Act).
That, Respondent No. 4, under the law was required to only see whether,
there was material available and whether a prima facie case is made out for
granting sanction to an open enquiry. The Respondent No. 4 failed to
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appreciate and consider that, Mr. Waghmare had not co-operated with the
enquiry of the ACB as is clearly stated by the Enquiry Officer of the ACB in its
letter/report dated 31st January 2019.
5.2) In the letter dated 31 st January 2019, addressed by Police
Inspector to the Superintendent of Police ACB, it is specifically recorded that,
Mr. Waghmare had not co-operated with the enquiry in spite of being granted
opportunities. That, Mr. Waghmare, failed to give details in respect of the
amount spend for the education of his son, the overseas trips, loans,
investments etc. Mr. Waghmare, did not give details in respect of his
properties so also the properties belonging to his wife. That, the profit and
loss accounts, income tax returns etc. in respect of certain related companies,
were not provided. It was in the background of this conduct of non-co-
operation of Mr. Waghmare, the Enquiry Officer eventually sought previous
approval for an open enquiry.
5.3) That, the Competent Authority/Respondent No. 4, by passing the
Order dated 16th April 2019 and 25th April 2019 has shown a total disregard to
the requirements of law and the scope of the powers and authority under
section 17(A) of the PC Act. That, Respondent No.4, after giving Mr.
Waghmare a hearing and based on the documents submitted by Mr.
Waghmare has gone ahead and recorded a finding that, there is no case made
out against Mr. Waghmare. The Respondent No.4 has further recorded a
finding that, Mr. Waghmare has created his assets from his own income and
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from the ancestral properties and that he has incurred his expenses from the
said properties and that there is no case made out for disproportionate assets.
The Order dated 16th April 2019 and 25 th April 2019 are untenable, as the
Respondent No. 4, has exceeded his jurisdiction, acted beyond his powers and
authority and in fact exercised jurisdiction which is not vested in the
Respondent No. 4 being the Competent Authority. Mr. Chavan therefore
prayed that, the impugned Orders and all actions taken pursuant to and based
on the said Orders may be set aside and the petition be allowed.
6) Mr. Sanjiv Kadam, the learned Senior Counsel appearing for the
Respondent No. 4 submitted that:-
6.1) Respondent No. 4 has exercised his jurisdiction in a proper and
appropriate manner. There are various Government Resolutions under which
the Authorities have the power either to grant or refuse sanction for an open
enquiry. Reliance was placed on the Judgment in the case of Shreeroopa V/s
State of Karnataka, reported in 2023 SCC Online Kar 68, to contend that, the
object of Section 17(A) of the PC Act is to ensure that, unnecessary
enquiries/investigation against public servants are prevented and that the
Competent Authority is required to take decisions to accord or refuse approval
to conduct an investigation. The Competent Authority, is required to examine
and consider whether the opinion formed by the Enquiry Officer that the
investigation is justified or not. That, there is no material available, to grant
previous approval under section 17(A) of the P.C Act.
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6.2) If the Competent Authority, is satisfied that, the opinion as
formed by the Enquiry Officer is justified and its employee is required to be
subjected to an investigation, the Competent Authority can accord its
approval. That, the employer is the ultimate person to determine whether its
employee required to be investigated or not especially when an allegation of
commission of criminal offence is levied against the employee.
6.3) That, protection is offered to public servant under the PC Act is at
two levels. The first level of protection is even before the
investigation/enquiry is conducted when previous approval is needed under
Section 17(A) of the Act and the second level of protection is after completion
of the investigation where sanction to prosecute a public servant is required
under Section 19 of the Act. That, the Respondent No. 4 after considering the
documents and the written say of Mr. Waghmare was convinced that, there is
no material to accord previous approval for an open enquiry. That, the Order
dated 16th April 2019 and communication dated 25th April 2019 are correct
and passed in accordance with the law.
7) Mr. Rajiv Chavan, learned Senior Counsel, appearing for the
Petitioner, in rejoinder submitted that:-
7.1) The Order dated 16th April 2019 and communication dated 25 th
April 2019, are completely misplaced and untenable as the public servant does
not even have a right under the law to explain the alleged disproportionate
assets before filing of an FIR. The rights of the accused public servant would
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arise only after an FIR is registered. That, Section 17(A) would not be
applicable in the present case as Section 17(A) specifically relates to
recommendations and decisions taken by the public servant in discharge of
official functions or duties. That, the present case does not relate to any
discharge of the official functions and duties. The present case is a
disproportionate assets case. That, the Orders dated 16 th April 2019, 25th April
2019 and all consequent actions based thereon are untenable, illegal and bad
in law. That, the Order dated 16 th April 2019 and communication dated 25 th
April 2019 and all consequent actions based thereon are untenable, illegal and
bad in law. That, they ought to be quashed and set aside.
8) After perusal of the record, considering the facts and the
arguments advanced before us the following questions arise for our
consideration:-
(i) What is the scope of the power and authority of the Competent
Authority under section 17(A) of the PC Act?
(ii) Can the Competent Authority while considering the question of
according "previous approval" under section 17(A) of the PC Act,
venture into the arena of investigation and enquiry and conclude that
no offence is committed?
9) The Hon'ble Madras High Court in the case of Dhandapani v.
Vigilance Commissioner, 2021 SCC OnLine Mad 1396, has observed that,
previous approval is necessary for conducting any enquiry or inquiry or
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investigation into any offence alleged to have been committed by a public
servant, which is relatable to any recommendation made or decision taken by
such public servant in discharge of his official functions or duties. It is further
held that, in offences for allegedly acquiring assets disproportionate to
income, previous approval under Section 17(A) of PC Act is not at all
necessary and that the said provision is not applicable to the disproportionate
assets cases. A similar view has been taken in the case of Lala Bala Naga
Dharma Singh v. State of A.P., 2024 SCC OnLine AP 1277, by the Andhra
Pradesh High Court.
9.1) The Kerala High Court in the case of Shankara Bhat v. State of
Kerala, 2021 SCC OnLine Ker 3427, has observed that the scope of section
17(A) is specifically confined to "any recommendation made or decision taken
by public servant" which alone falls within the protection under section 17(A).
It is further observed that, 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 17(A) of the PC Act as there is no
involvement of any decision or recommendation. The said acts, cannot be
considered as, one done in discharge of his official functions and duties as
contemplated under section 17(A). Therefore, it cannot, by any stretch of
imagination, be held that investigation into any of the offences as mentioned
above need previous approval under section 17(A).
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9.2) The Hon'ble Karnataka High Court in the case of Shreeroopa v.
State of Karnataka, 2023 SCC OnLine Kar 68, observed that in a case for grant
of previous approval, under section 17(A) of PC Act, it is not necessary that,
there should be clear incriminating evidence with the Enquiry Officer at the
stage of him seeking previous approval under Section 17(A) of the Act. What
is required, under section 17(A) of the PC Act is that the Enquiry Officer has
some credible evidence, on the basis of which, he forms an opinion that an
investigation is warranted. It is specifically observed that, the authority would
be required to only consider the opinion that is formed by the Enquiry Officer
and the material that he possesses while considering the request for approval.
Since the public servant is yet to be investigated, the question of considering
any incriminating material and coming to the conclusion that an investigation
is unnecessary would not really arise. Since the public servant is yet to be
investigated, the question of considering whether there is any incriminating
material or its veracity by the State Government to come to the conclusion
that an investigation is warranted or not, would be untenable and stand to
defy logic or reason.
9.3) The Hon'ble Supreme Court in the case of Nara Chandrababu
Naidu v. State of A.P., reported in (2024) 13 SCC 292, has observed that :-
"54. Since the main issue involved in the present appeal is in respect
of the interpretation of the newly inserted provision Section 17-A, let us
regurgitate the basic principles of statutory interpretation as
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propounded by this Court from time to time. It is well known rule of
interpretation of statutes that the courts must look to the object which
the Statute seeks to achieve while interpreting any of the provisions of
the Act. A purposive approach for interpreting the Act is necessary 34.
The purport and object of the Act must be given its full effect 35. The text
and the context of the entire Act must be looked into while interpreting
any of the expressions used in the Statute. If two views are possible, the
view which most accords with the object of the Act, and which makes
the Act workable must necessarily be the controlling view. Even penal
statutes are governed not only by their literal language, but also by the
object sought to be achieved by Parliament 36. Even if the words
occurring in the statute are plain and unambiguous, they have to be
interpreted in a manner which would fit in the context of the other
provisions of the statutes and bring about the real intention of the
legislature37.
55. Although not specifically mentioned in the Statement of Objects
and Reasons of the 2018 Amendment Act, the object of inserting
Section 17-A in the PC Act, which is in pari materia with the provisions
contained in Section 6-A of the Delhi Special Police Establishment Act,
1946, is to protect the honest public servants from the harassment by
way of inquiry or investigation in respect of the decisions taken or acts
done in bona fide performance of their official functions or duties.
Whereas Section 19 bars the courts from taking the cognizance of an
offence punishable under the PC Act, alleged to have been committed
by public servants except with the prior sanction of the authorities
concerned mentioned therein, Section 17-A bars the police officer from
conducting any enquiry or inquiry or investigation of offences relatable
to recommendations made or decision taken by public servant in
discharge of official functions or duties, without the previous approval
of the authorities concerned mentioned therein. From the bare reading,
it is discernible that Section 17-A has the following main four facets:
(i) Enquiry or inquiry or investigation of offences under the PC Act.
(ii) Alleged offences should be relatable to the recommendation
made or decision taken by a public servant.
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(iii) Such recommendation made or decision taken by a public servant
should be in discharge of official functions or duties and
(iv) Previous approval of the authorities mentioned therein.
56. Though the word "enquiry" as contained in Section 17-A has
neither been defined in the PC Act nor in CrPC, as per the Standard
Operating Procedures (SOPs) issued by the Ministry of Personnel,
Public Grievances and Pensions (Department of Personnel & Training)
dated 3-9-2021 for processing of cases under Section 17-A, "enquiry"
means any action taken, for verifying as to whether the information
received by the Police Officer pertains to the commission of an offence
under the Act (Para 4.2 of the said SOPs). The meaning of the words
"inquiry" and "investigation" for the purposes of Section 17-A could be
imported from the definitions contained in Section 2(g) & Section 2(h),
respectively of CrPC, the same being made applicable subject to certain
modifications in view of Section 22 of the PC Act.
66. As held in Subramanian Swamy v. Manmohan Singh 48, in case of
two possible constructions of a provision in the PC Act, it would be the
duty of the court to accept the one that seeks to eradicate corruption to
the one which seeks to perpetuate it. In Subramanian Swamy v. CBI49,
the Constitution Bench had observed while dealing with Section 19 of
the PC Act that the protection against malicious prosecution which is
extended in public interest, cannot become a shield to protect corrupt
officials.
68. Even otherwise, absence of approval before conducting any
enquiry or inquiry or investigation into an offence alleged to have been
committed by a public servant, as contemplated in Section 17-A could
never be the ground for quashing the FIR registered against the public
servant or the proceedings conducted against him, more particularly
when he is also charged for the other offences under IPC in respect of
the same set of allegations. As stated earlier, there are other important
facets contained in Section 17-A, like whether the alleged offence is
relatable to the recommendation made or decision taken by the public
servant or not, and whether such recommendation or decision was
made or taken in discharge of his official functions or duties or not, etc.
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Such facets could be examined only when the evidence is led during the
course of trial. The alleged acts which prima facie constitute the
offences, though done under the purported exercise of official function
or duty, could not fall within the purview of Section 17-A. The
protection sought to be granted to a public servant under Section 17-A
could not be extended to his acts which prima facie were not in
discharge of his official functions or duties. Any other interpretation
would certainly tantamount to scuttling the investigation at a very
nascent stage. Such could neither be the intention of the legislature nor
could such provision be interpreted in the manner which would be
counter productive or frustrating the very object of the PC Act."
9.4) The Hon'ble Supreme Court in the case of State of Karnataka v.
Channakeshava H.D., reported in 2025 SCC OnLine SC 753, has observed that:-
"14. Mr. Devadatt Kamat, senior counsel, has relied upon a recent
Three-Judge Bench decision of this Court in CBI v. Thommandru
HannahVijayalakshmi, (2021) 18 SCC 135 where it was specifically
stated that an accused public servant does not have any right to explain
the alleged disproportionate assets before filing of an FIR. We are also
of the opinion that this is the correct legal position as there is no
inherent right of a public servant to be heard at this stage.
15. In view of the above, it is clear that preliminary enquiry was not
mandated in the present case, considering that detailed information was
already there before the SP in the form of the source report referred
above. We have also gone through the order passed by the SP, directing
registration of FIR against respondent no. 1, which reflects that the SP
had passed that order on the basis of material placed before him in the
form of the source report."
10) The Prevention of Corruption Act, 1988 (PC Act) is a special
statute, enacted to consolidate and amend the law relating to the prevention
of corruption and for the matters connected therewith and incidental thereto.
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The aim, object and intention of the PC Act, is to provide a more robust and
complete law, and to make corruption laws more effective in the country by
widening their scope and strengthening/complementing the provisions of the
PC Act so as to punish the persons guilty of corruption and eventually
eradicate menace of corruption. Considering the aims and objects of the Act, it
would be the bounden duty of the Courts to interpret the PC Act and its
provisions in a manner that furthers its aims and objects.
11) The PC Act, itself provides for certain safeguards and an inbuilt
mechanism of checks and balances. Chapter III provides for offences and
penalties. Chapter IV consist of sections 17, 17(A) and 18 which provides for
Investigation into cases under the Act. Chapter V provides for sanction for
prosecution and other Miscellaneous provisions under the Act, wherein
section 19 provides for previous sanction necessary for prosecution. In the
present matter, we are mainly concerned with sections 17, 17(A) and 19 of
the PC Act.
12) Section 17 of the PC Act, enumerates and enlist the persons who
are authorized to investigate crimes/offences under the PC Act. The section
begins with a non-obstante clause in as much as it states that notwithstanding
anything contained in the Code of Criminal Procedure, 1973, no police officer
below the rank
(a) in the case of the Delhi Special Police Establishment, of an
Inspector of Police;
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(b) in the metropolitan areas of Bombay, Calcutta, Madras and
Ahmadabad and in any other metropolitan area notified as such under
sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2
of 1974), of an Assistant Commissioner of Police;
(c) elsewhere, of a Deputy Superintendent of Police or a police officer
of equivalent rank, shall investigate any offence punishable under this
Act without the order of the Metropolitan Magistrate or a Magistrate of
the first class, as the case may be, or make any arrest therefore without
a warrant:
12.1) The first proviso, to section 17 provides that, if a police officer not
below the rank of Inspector of Police is authorized by the State Government,
by a special or general order, he may investigate the matter without the order
of the Metropolitan Magistrate or a Magistrate of the first class. The second
proviso, states that an offence referred to in section 13 (1) (b) of the PC Act
shall not be investigated without the order of a police officer not below the
rank of the Superintendent of Police.
12.2) A plain reading of section 17 makes it clear that, notwithstanding
the provisions of the Code of Criminal Procedure certain safeguards are
provided so as to ensure that the offences under the PC Act, are investigated
by responsible and senior police officers. The PC Act itself provides that the
investigation, under the PC Act, shall be done by the police officers of a
particular rank and/or seniority and/or in some cases Officers authorized by
the State Government by a general or special order. According to us, the
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intention of the legislature is clear, that the investigation under the PC Act,
can be done only by authorized police officers and no other. The intention
being that, the investigation is undertaken by the experienced officers, who
are well trained, have the required expertise and experience to carry out the
investigation. Further, depending on the nature and gravity of the offence,
officer appointed may be an officer not below the rank of an Inspector of
Police or an Assistant Commissioner of Police or in some cases police officer
not below the rank of a Superintendent of Police. Reading of section 17 of the
PC Act, makes it clear that the PC Act distinguishes and differentiates
investigation, as a specialized task, to be undertaken by senior and
experienced officers, who are authorized under section 17 of the PC Act and
no other. The PC Act itself, differentiates and distinguishes between the
authority and power of the Police officer under section 17 and that of the
competent authority under section 17(A) to grant "previous approval".
13) Section 17(A) of the PC Act, provides 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, 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 of the concerned Union or State Government where the
person who is or was employed, at the time when the offence was alleged to
have been committed and in the case of any other person, of the authority
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competent to remove him from his office, at the time when the offence was
alleged to have been committed. The proviso clarifies 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. The concerned authority, is to convey its decision
under the 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.
13.1) Perusal of section 17(A) of the PC Act, would make it clear that,
Section 17(A), comes into play at a stage prior to conducting investigation
and has been introduced to protect and safeguard honest officers and assist in
providing and creating a pressure free atmosphere and surrounding for the
officer to carry out his or her duties without any fear. We have also noted that,
as the stage under section 17(A) is a stage prior to conducting investigation,
the scope of the section is restricted. The restricted scope of the power and
authority is evident from the fact that Section 17(A) of the PC Act, will come
into play, apply and can be invoked only and only when there is a "decision"
taken or "recommendation" made by a public servant and the said "decision"
or "recommendation" is a "decision" taken or "recommendation" made by the
public servant in discharge of his official functions or duties." In short, if the
act/conduct of the public servant, which is complained of, amounts to an
offence by itself, prior sanction or approval from the Competent Authority
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would not be necessary and the police officer would be entitled to without any
procedural formality of "previous approval" investigate the offence under the
law. Perusal of section 17(A) of the PC Act, would make it clear that "previous
approval" from the competent authority in each and every case or for each
and every enquiry or inquiry or investigation, into any or every offence
committed by the public servant is not envisaged and therefore not required.
In an act or wrong doing by a public servant, which has no connection,
relation or nexus with the official duty or the discharge of an official duty,
there would be no need or necessity to seek previous approval under section
17(A) of the PC Act. This, in our view is the crux of this section. One can thus
safely conclude that, previous approval under section 17(A) for conducting
any enquiry or inquiry or investigation is required only when the offence
alleged is relatable to a decision taken or recommendation made by the public
servant in connection, relation or nexus with the official duty or the discharge
of an official duty. Acts and conduct of public servants, which are independent
of the official duty and/or ex facie criminal or constitute an offence, do not
require previous approval under section 17(A) of PC Act. In our opinion,
section 17(A) of PC Act, does not protect offences like cheating,
misappropriation, fraud, falsification of accounts, criminal breach of trust,
receiving bribes and or case of disproportionate assets. The said offences, on a
plain reading of the section 17(A) would be beyond its scope and ambit.
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13.2) The other aspect which clearly emerges from a joint reading of
section 17 and 17(A) of the PC Act is that, the power and authority to
investigate into an offence under the PC Act is vested in the authorized police
Officers under section 17 of the PC Act. All investigation has to be carried out
by Officers as authorized by and under section 17 of the PC Act and no other.
This is the mandate of section 17 of the PC Act. Under section 17(A) of the PC
Act, previous approval is sought in respect of and in relation to acts and
recommendations in relation to the public duty. Section 17(A) is a protective
shield to protect officers from mala fide and motivated prosecutions. What
needs to be seen at the first instance is whether the act complained of "is
related to the public functions/duty" and then if there is material which
warrants an enquiry or inquiry or investigation. Considering the scope of
section 17(A) and the stage at which "previous approval" is sought, it is
therefore, evident and in fact not necessary that there should be clear
incriminating evidence with the Enquiry Officer at the stage of seeking
previous approval under Section 17(A) of the Act. One must remember that
the "previous approval" is sought at a stage prior to and for conducting an
enquiry or inquiry or investigation. All evidence and material, is yet to be
collected and that the said process is required to be undertaken. What is
available is credible material, which in the opinion of the Enquiry officer
warrants a complete and thorough enquiry or inquiry or investigation. The
provisions of section 17 and 17(A) of the PC Act are required to be read
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together and a purposive interpretation is required to be given to both the
sections, so as to harmoniously serve and further the ultimate object of the
PC Act i.e. to eradicate corruption and punish the corrupt. What would be
required under the provisions of Section 17(A) of the PC Act, is that the
Enquiry Officer has some credible evidence, on the basis of which, he forms an
opinion that an investigation is warranted. The PC Act, does not envisage a
situation, where investigation is permitted by the Competent Authority under
section 17(A) of the PC Act, nor is the Competent Authority vested with any
such power under section 17(A) to consider the entire matter on merits or
consider the defense of the public servant and render a finding on the merits
of the case at the stage when only "previous approval" is sought to enquiry or
inquiry or investigation in the matter. As noted herein before, under section
17 of the PC Act, the investigation can only be done by the authorized police
officers. The Competent Authority, under section 17(A) of the PC Act, has no
power to shut down or foreclose an enquiry or inquiry or investigation of an
offence of corruption. The Competent Authority cannot take over and enter
into the arena and domain of investigation by the authorized Officer under
section 17 of the PC Act. One other more important reason, why the
Competent Authority should not enter the domain/jurisdiction of the
investigating authority is to ensure that the investigation is independent,
thorough, complete, fair and unbiased. This is a very important and crucial
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aspect which one needs to keep in mind and be nurtured and followed, so as
to achieve the object of the PC Act.
13.3) Considering the provisions of the PC Act, we are of the firm
opinion that, the Competent Authority under section 17(A), cannot and ought
not to take over the role and duties of the authorized Enquiry Officer
appointed under section 17 of the PC Act. It cannot be that the Competent
Authority, under section 17(A) of the PC Act, oversteps its power and
authority, takes over or transcends into the jurisdiction vested in the Enquiry
Officer and conducts detailed and minute hair splitting analysis of the
material furnished by the Enquiry Officer. At the stage of seeking "previous
approval" under Section 17(A) of the PC Act, the Enquiry Officer is required
to form only a preliminary and tentative opinion or a prima facie case as to
whether an investigation is warranted or not. This, obviously is based on the
preliminary and basic material which is available or gathered by the Enquiry
officer, which would indicate that a further detailed enquiry or inquiry or
investigation is required to be undertaken.
14) Section 19 of the PC Act, comes into play after the investigation is
over and sanction is sought to prosecute the public servant. Under section 19
of the PC Act, the material collected during the investigation is considered and
sanction is accorded on the basis of the said material. Section 19 of the PC Act
is a stage of granting permission to prosecute the public servant. It is here
that, the legality of the evidence and sufficiency of the material is considered.
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Section 19 of the PC Act, provides for a hearing to be granted to the Public
servant. Section 17(A) of the PC Act, does not provide for hearing of the
public servant. The legislature, has made a distinct and clear difference
between the scope, ambit and powers of the said sections. Considering the
legal repercussions of exercising the power under section 19 of the PC Act, the
section provides an option to take legal consultation. Section 17(A) of the PC
Act, does not provide for the said eventualities nor does it deal with "sanction"
but is restricted only to "previous approval" for an offence which is said to
have been committed by a public servant under the provisions of the PC Act
which is relatable to a recommendation made or decision taken in the
discharge of official duties. The act of seeking "previous approval" to enquire
or inquire or investigate is one stage prior to investigation and in a manner a
permission to investigate further. Permission to enquiry or inquiry or
investigate cannot be refused, if there is credible prima facie evidence. If
section 17(A) of the PC Act is read to mean a sanction to investigate, it would
negate the provisions of section 17 and 19 of the PC Act. This, in our opinion,
is not the intention of the legislature. It cannot be the intention of the
legislature to create and provide a mechanism to deal with offences of
corruption and then create obstacles in the procedure and process and thereby
slow down every investigation or enquiry or inquiry as against the public
servant. This interpretation would defeat the very purpose and object of the
PC Act.
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15) It would be relevant to mention here that, what is sought is only
"previous approval" to enquire or inquire or investigate. There is at all times a
possibility of the Enquiry officer concluding, after a detailed and through
investigation that, no case is made out to seek sanction under section 19 of
the PC Act. The said possibility cannot be ruled out. While considering the
request for granting "previous approval" under section 17(A) the Competent
Authority is required to consider the opinion that is formed by the Enquiry
Officer and the material that he possesses at that time. Considering the stage
at which the "previous approval" is sought, the conduct of the concerned
public servant towards the investigation/enquiries made by the Enquiry
Officer ought to be also considered. Pertinent to note and keep in mind that,
the public servant is yet to be enquired or inquired or investigated into, and
the fact whether there is a serious and strong suspicion or enough material to
seek "previous approval" which has to be considered. Therefore, the
Competent Authority, considering on merits, the incriminating material or the
say of the public servant or even giving him a hearing and coming to the
conclusion that an investigation is unnecessary, is a concept which is alien to
section 17(A) of the PC Act and cannot be accepted in law.
16) Since previous approval is sought for further investigation, the
question of the Competent Authority considering material or testing its
veracity to conclude that no case is made out or that an investigation is not
warranted at all, cannot arise, is wholly untenable. It is in fact, contrary to the
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provisions of the PC Act itself. Once credible and reasonable material is
available or the permission of previous approval is sought on strong suspicion,
the previous approval is required to be granted. What is required is that, the
Enquiry Officer is given the opportunity to collect and collate all required
material, enquire, inquire and investigate the allegations and form an opinion
and make out a case to seek sanction under section 19 of the PC Act. The said
process cannot be scuttled and interfered with by the Competent Authority
under section 17(A) of the PC Act nor can sections 17 and 19 be made
nugatory by the said act of over stepping the jurisdiction under section 17(A)
of the PC Act.
17) We are of view that, section 17, 17(A) and 19 of the PC Act, are
clearly distinct and independent provisions, which come into operation and
are invoked at different stages of the process, have an independent scope and
ambit of authority of each other, yet complement each other to ensure a
judicious check and balance to protect honest officers and at the same time
ensure that the aims and objects of the PC Act are furthered at all the different
stages of an investigation. We are of the firm view that, there is telling
difference between the granting "sanction to prosecute" and "according an
approval to investigate to an Enquiry Officer". The said ideas and concept i.e
"sanction to prosecute" and "grant of approval to investigate" are distinct and
different. They have a flavor of their own, are governed by distinctly, different
parameters and operate at different stages of the process/procedure and law.
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Obviously, "grant of approval to Investigate" will come at an earlier stage and
time and "sanction to prosecute" at a much later stage and time. At the time of
seeking sanction to prosecute, the Enquiry Officer, is armed and well equipped
with all the material, legal and cogent evidence as the investigation is
completed and the material is collected and collated. The case is crystallized
as far as facts are concerned.
18) We are of the view that, the integrity of a public servant is
required to be beyond suspicion. If a situation arises that the Enquiry Officer
authorized under section 17 of the PC Act, has material, which cast a doubt on
the integrity of a public servant, and the Enquiry Officer under the Act is of
the opinion that there is material which indicates that an enquiry or
investigation is called for, then it would be only in the interests of both the
public servant, the institution and the society at large that the same is carried
out. The same will be in line with and in furtherance of the objectives of the
PC Act. The said enquiry and investigation cannot be blocked or denied by the
Competent Authority by an unwarranted and exceeding use of the limited
powers granted under section 17(A) of the PC Act. The same would be a
misuse of the power under Section 17(A) of the PC Act by the Competent
Authority, and nothing less than a abuse of the process and mechanism of law.
19) The present case, pertains to the Petitioners complaint/grievance
of Mr. Waghmare, possessing assets disproportionate to his known sources of
income and not with any offence which is relatable to any "recommendation
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made" or "decision" taken in the "official capacity" or "official duties". The
present case, is a case of disproportionate assets. In our view, the basic
premise that Section 17(A) of the PC Act is applicable in the present case is
totally misplaced and misconceived. We are of the opinion, that in the present
case the offence alleged is one of amassing disproportionate assets, no
previous approval from the competent authority is required for the police to
conduct an enquiry or inquiry. Such an offence is not relatable to a
recommendation made or a decision taken by such public servant.
20) In the present case, the allegations against Mr. Waghmare are that
of possessing disproportionate assets, in respect of which he was called for an
enquiry and certain information was sought by the Enquiry Officer. The record
would indicate that, Mr. Waghmare has not provided the required information
to the Enquiry Officer. There appears to be total non-cooperation on the part
of Mr. Waghmare. The same is evident from the letter of the Enquiry Officer
dated 31st January 2019. In the said letter, the Enquiry officer, has
categorically recorded that, Mr. Waghmare in spite of being granted repeated
opportunities avoided and neglected to forward the information. The
information as sought was in respect of the sons education expenses, expenses
in respect of the overseas trips, information regarding shares, bank accounts,
fixed deposit held with the postal authorities. Information regarding
immovable properties was to be provided within 8 days which was not
provided. As regards the information regarding the properties of Mr.
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Waghmare's wife, the Enquiry Officer was informed that the same could be
given only with her permission. Further, information regarding the
construction companies allegedly owned and operated by Mr. Wahgmare's
mother, wife and brother were also not provided. The Enquiry Officer has
specifically recorded that as the information i.e accounts, profit and loss
accounts, income tax returns, were not provided therefore further enquiry and
investigation could not be carried out. The Enquiry Officer has specifically
recorded the non-cooperation of Mr. Wahgmare and the fact that despite of
being granted opportunities to give an explanation and provided documents
and information, none has been forwarded to the Enquiry Officers. It was in
this background that the Enquiry Officer sought permission to conduct an
open enquiry. The afore-noted facts have been detailed in the letter dated 31 st
January 2019 of the Enquiry Officer.
21) We have to note that, surprisingly the very same information has
been very promptly forwarded and submitted by Mr. Waghmare to the
Competent Authority/ Respondent No. 4 as is evident from the impugned
Orders dated 16th April 2019 and 25th April 2019 so also the letter dated 31 st
January 2019. This, when it is no part of the duty of the Respondent No.4 to
act as an enquiry/investigating Officer or be a part of the investigating team
or investigation. As observed hereinbefore, the scope of authority and power
of the Respondent No.4, while considering an request for "previous approval"
under section 17(A) of the PC Act, is only to verify or check if the act/offence
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complained of in respect of which previous approval is sought for an enquiry
or inquiry or investigation "is relatable to any recommendation made or
decision taken by such public servant in discharge of his official functions or
duties" and nothing more. Clearly, there is no power or authority to decide or
judge the allegations or record a finding on the material which is available.
Further, if the offence complained of is independent of any decision or
recommendation of the public servant related to the discharge of official
functions and duties, there is no requirement of seeking a "previous approval".
As noted earlier, the present case relates to any enquiry or investigation in
respect of disproportionate assets.
22) We have also perused the Affidavit in reply dated 1 st February
2023, filed by Mr. Vikram Kumar (IAS) for and on behalf of the Respondent
No. 4. We have noted that, the impugned Order dated 16 th April 2019 and 25th
April 2019 are passed by Mr. Saurabh Rao, Commissioner of Respondent No.
4. Surprisingly, the reply has been filed not by the same person who passed
the impugned Order dated 16th April 2019 and 25th April 2019. Be that as it
may be, but in aforenoted circumstances paragraphs 4 to 6 of the said
Affidavit make an interesting read, which are as under:-
"4. As regards the letter dated 31.01.2019, annexed at Exhibit 'TT'
(page 134 of the petition compilation), I say that, the competent
authority has passed order dated 16/4/2019 and consequently
communicated its decision through outward No - MA/GOP/01, Dated-
25/4/2019. The letter dated 31.01.2019 has been referred and considered
by the Competent Authority. The Competent Authority has found that, no
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disproportionate assets were found with the Public Servant Mr. Waghmare.
5.The main ground for refusal to hold an open inquiry was that in
view of the provisions of rule 19(3A), If the spouse or any other member
of Government Servant enters into any transaction out of his or own
funds as distinct from the fund of government servant himself, in his or
her name and in his or her own right, shall not be treated as a
transaction entered into by the member of the family of government
servant within the meaning of sub rules (2) and (3). When the competent
authority had satisfied its conscious with the fact that the funds received
by government employee are accounted properly and found place in the
bank records as well as Income tax records, it has recorded a finding that
Mr. Waghmare has not received any amounts or have any transaction with
his mother, father, wife or brother as the case may be. Annexed hereto and
marked as Exhibit 'R-3' is the copy of extract of Rule 19 of MCS Rules.
6. I say that, the report of inquiry committee was also verified by the
then additional Municipal Commissioner who also is an IAS officer. In his
detail report, he has considered all the issues minutely and he suggested for
giving an opportunity of hearing to Mr. Waghmare based on the
voluminous record filed by him in 3 files. The said suggestion of the
Additional Municipal Commissioner was accepted by the then Municipal
Commissioner and date of hearing was fixed on 16/4/2019 at 11 am. The
record shows that hearing was conducted on 16/04/2019 and the then
Municipal Commissioner was pleased to take final decision in the matter
after following the principles of natural justice. Since the said record is
confidential, I crave leave of this Hon. Court to produce the record for
perusal at any time as per the convenience of Hon.Court."
23) The deponent despite of being different and distinct individual
and not the same person who passed the Order dated 16 th April 2019 and
25th April 2019 has specifically stated that, the letter dated 31 st January 2019
has been referred and considered by the Competent Authority. A perusal of
the impugned Order dated 16th April 2019 would indicate that the said letter
of 31st January 2019 has only being referred to the Order dated 16 th April
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2019. It has not considered the contents of the letter dated 31 st January 2019.
The Order, contrary to the contents of the letter dated 31 st January 2019,
records that Mr. Waghmare had co-operated with the investigation and that
enough opportunities were not given to Mr. Waghmare by the Enquiry Officer.
The contentions of the Enquiry Officer raised in the letter dated 31 st January
2019 have not at all been considered. As regards the Order dated 25 th April
2019 does not even referred to the letter dated 31 st January 2019 leave apart
considering the same. We have further noted that, the deponent of the said
affidavit has made categorical statement i.e;
"When the Competent Authority had satisfied its conscious with fact that
the funds received by government employee are accounted properly and
found place in the bank records as well as Income tax records, it has
recorded a finding that Mr. Waghmare has not received any amounts or
have any transaction with his mother, father, wife or brother as the case
may be."
24) We failed to understand, as how the deponent can depose in
respect of the fact that the Competent Authority, who has passed the Order,
had satisfied its conscious. The said affirmation on oath is nothing but an
attempt to cover up for the Competent Authority, support an unfounded and
untenable Order and give reasons, to supplement and support the impugned
Order on behalf of the Respondent No.4 for reasons best known to the
deponent. We are shocked to read the averments and contents of the said
Affidavit, especially when there is no authority or power vested in the
Competent Authority/Respondent No. 4 to investigate the matter, hear the
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concerned public servant or decide the matter on merits. The actions of
Respondent No.4 are an attempt to obstruct and thwart an independent,
thorough, fair and impartial enquiry/investigation. We are afraid that cannot
be permitted. This conduct of the Respondent No.4, is nothing but an attempt
to block the enquiry and/or investigation.
25) We are of the opinion that the Respondent No. 4 in passing the
impugned Order dated 16th April 2019 and the Order/communication dated
25th April 2019 has clearly exceeded the jurisdiction and powers vested in the
Respondent No. 4 under Section 17(1) of the PC Act. We say this for various
reasons. The discreet enquiry was initiated in the year 2015 and by letter
dated 31st January 2019 the Enquiry Officer sought previous approval for
conducting an open enquiry mainly on the ground that Mr. Waghmare had not
cooperated with the enquiry. On one pretext or another, he delayed or refused
to furnish the required information and documents. Considering the nature of
the allegations and the vast scope of the enquiry, a request was made for an
open enquiry. The letter dated 31 st January 2019 mentions in detail and the
steps taken and the non-cooperation of Mr. Waghmare. The Respondent No. 4,
in its Order dated 16th April 2019, has granted hearing to Mr. Waghmare
which is not envisaged or contemplated under Section 17(A) of the PC Act.
Further, despite having a letter dated 31st January 2019 on record,
Respondent No. 4, choose to only refer to the letter and failed to consider the
contents of the said letter. We find this conduct, to say the least, strange.
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26) The letter dated 31st January 2019, clearly records that, due to
non-cooperation of Mr. Waghmare the discreet enquiry has not progressed and
considering the vast nature of the enquiry and allegations an open enquiry
was requested. The Order dated 16th April 2019, records that the discreet
enquiry has been conducted since the year 2015 and that after the period of 4
years the Enquiry Officer has not provided any evidence. The Respondent No.
4 has totally failed to take into consideration the contents of the letter dated
31st January 2019, the fact that the delay was due to the non-cooperation of
Mr. Waghmare and has misdirected itself. It would be pertinent to note that
the Enquiry Officer, due to the non-cooperation of Mr. Waghmare, sought
prior approval to conduct an open enquiry. As noted hereinabove, the scope of
Section 17(A) is limited to consider offences/acts which are relatable to
recommendation made or decision taken by public servant in discharge of
official function or duties and nothing beyond it.
27) A perusal of the Order dated 16th April 2019 and 25th April 2019,
it would clearly indicate that, the Respondent No. 4 has exceeded his
jurisdiction and rejected the request for an open enquiry on unrelated and
untenable grounds and for reason best known to it.
28) We find that, the Orders dated 16 th April 2019 and 25th April
2019, are misplaced, misconceived and untenable. What was sought was a
permission, to conduct an open enquiry, in a disproportionate asset case, as
Mr. Waghmare had not cooperated in the enquiry and not provided the
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required information. Being a case of disproportionate assets, in our view
section 17(A) ought not to have been resorted to. Furthermore, the
Respondent No. 4, in any event, has exceeded its authority and ventured into
taking over the role of the investigating agency as envisaged under section 17
of the PC Act, by taking upon itself the task of inquiry, enquiry and
investigations. Further, by refusing "previous approval" under section 17(A) of
the PC Act, and recording a finding that there is no " disproportionate assets"
the Competent Authority has acted without authority, in excess of its power
and authority and encroached upon the powers of the Officers under section
17 and 19 of the PC Act. Most shocking, is that the said rejection/refusal for a
"previous approval" in a case, where the allegations pertain to
disproportionate assets and not "relatable to recommendations made or
decision taken by public servant in discharge of official function or duties". We
are of the view, that the Respondent No.4 has clearly and by miles exceeded
its power and authority. What was sought from the Respondent No. 4, was
"previous approval" to conduct an open enquiry, in view of the fact that, Mr.
Waghmare was not co-operating with the Enquiry Officer. The Enquiry Officer,
had not sought approval or sanction as is envisaged under section 19 of the
PC Act, but only sought permission to conduct an open enquiry so as to enable
him to collect, collate and gather information. It appears that the Respondent
No. 4, in an overzealous attempt and to protect its Officer, has taken upon
himself, the role of the Enquiry Officer. In short, the Respondent no. 4 i.e.
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Competent Authority has chosen to investigate the matter and also refuse to
sanction for prosecution under section 19 of the PC Act, when in fact he was
under a duty and obligation to confine himself to the mandate of section
17(A) of PC Act. This, according to us, cannot be done. It is beyond the scope
and ambit of the authority and power conferred upon the Respondent No.4 as
the Competent Authority under section 17(A) of the PC Act. What the
Respondent No. 4, under section of 17(A) of the PC Act, is required to give
"previous approval" for conducting an enquiry or inquiry of investigation into
offences committed under the PC Act, when the alleged "offences relatable to
recommendations made or decision taken by public servant in discharge of
official functions or duties". In our view, the Respondent No. 4, at the highest
was only required to give approval for an open enquiry as Mr. Waghmare was
not co-operating with the Enquiry Officer or to have plainly rejected it,
without disecting the material on record very minutely. Placing reliance on
Section 17(A), for passing the Orders dated 16 th April 2019 and 25th April
2019, would be untenable and misplaced. During the course of the hearing,
we have repeatedly enquired with the learned senior counsel appearing for
Respondent No. 4, to show us the power granted to Respondent No. 4 to
conduct and conclude an enquiry or whether the Respondent No. 4 has the
authority to take over the role of the Enquiry Officer. Apart from referring to
Government Resolutions dated 12th March 1981, 3rd March 2015, 27th July
2015 and 18th February 2025, the learned senior counsel appearing for the
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Respondent No.4, has not been able to point out any provision of law which
allows the Competent Authority under section 17(A) of the PC Act, to take
upon itself the power and authority to investigate the matter and or refuse
sanction for prosecution. We are of the opinion, that the same cannot be
available, for the simple reason that the said power of investigation is a
separate and independent power which is vested in authorized officers under
section 17 of the PC Act. The Government Resolutions, cannot override the
mandate of section 17 and/or 17(A) of the PC Act.
29) In view of the aforesaid discussions and observation, we hold that
the Competent Authority under section 17(A) of the PC Act, is required to
verify if, the collected material, merits an enquiry or inquiry or investigation
and the same can be done only when the alleged offences are "offences
relatable to recommendations made or decision taken by public servant in
discharge of official functions or duties" and not otherwise. Further, even if
the offences are relatable to recommendations made or decision taken by
public servant in discharge of official functions or duties, the Competent
Authority has no power and/or authority under section 17(A) of the PC Act, to
conduct an hearing, investigation or get into the merits of the matter and
undertake a detailed enquiry and/or conduct a mini trial. The role of the
Competent Authority is to only see and consider whether the preliminary
material as collected by the Enquiry Officer makes out a prima facie case. The
Competent Authority has no authority to usurp the powers of the authorized
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Enquiry Officer under section 17 of the PC Act or the power to grant or refuse
sanction to prosecute under section 19 of the PC Act.
30) The Competent Authority is not expected to undertake a detailed
and exhaustive study of the material available with the Enquiry Officer at the
time the approval is sought. Under section 17(A) of the PC Act, the Competent
Authority is required to satisfy itself, if the opinion of the Enquiry Officer, that
an enquiry or inquiry or investigation is warranted or justified or not. Once a
prima facie opinion is arrived at, after perusal of material, the approval
follows. Only the existence of a prima facie case is to be looked at, and not
clear and incriminating material to establish the guilt. Considering that the
allegation are under the PC Act, in our opinion, even a well-founded
suspicion, should be suffice and there is no need of a strong suspicion to grant
approval.
31) Section 17(A) of the PC Act, confers upon the Competent
Authority a discretion, which has to be exercised judiciously and as per the
settled judicial principles and not in an arbitrary manner or to suit ones
whims and fancies. It cannot be exercised, dehors of the material and the
reasons for which it is sought. One need to keep in mind that, at the time of
granting previous approval the investigation is in a nascent stage but
indicative of strong or well founded suspicion. There is available credible
material/information if not incriminating material. It is this credible
information, which is the foundation and starting point, which requires
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further investigation. In our view, therefore the same has to considered and
analyzed by the Competent Authority only from that stand point.
31.1) The questions framed in para No. 8 above are answered
accordingly.
32) In view of the aforesaid facts and circumstances, we are of the
view that the impugned Orders dated 16 th April 2019 and 25th April 2019, are
without jurisdiction and therefore cannot be sustained. We are of the opinion
that, the permission for an open enquiry under Section 17(A) is not required.
The present case, being a case of disproportionate assets, the seeking of
"previous approval" as envisaged under section 17(A) of the PC Act, would
not be applicable. Section 17(A) is not applicable to the present case. The
Respondent No. 2 and 3 can proceed in accordance with the law.
33) The impugned Orders dated 16 th April 2019 and 25th April 2019
are required to be set aside. As a result of the same, the action/steps taken by
the Authorities based on and pursuant to the impugned Orders dated 16 th
April 2019 and 25th April 2019, including all further and consequential Orders
passed relating to closing the enquiry would also be required to be set aside.
34) Hence the following order:
(a) Petition is allowed in terms of prayer clause (a) and (a)(1).
(b) Prayer Clause (b) (1) is allowed, except that after conducting the
open enquiry the Authorities will follow the procedure and process as
envisaged in the PC Act and take swift and appropriate action in
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accordance with law.
(c) Rule is accordingly made absolute in the aforesaid terms.
(RANJITSINHA RAJA BHONSALE, J.) (A.S. GADKARI, J.)
35) At this stage, Mr. Kadam learned Senior Counsel appearing for
Respondent No.4 submitted that, the effect and implementation of the present
Judgment may be deferred for a period of two weeks from today, so as to
enable Respondent No.4 to test its correctness before the Hon'ble Supreme
Court.
35.1) At the request of Mr. Kadam, the effect and implementation of the
present Judgment is stayed for a period of two weeks from the date of
uploading of the present Judgment on the official website of the High Court of
Bombay.
(RANJITSINHA RAJA BHONSALE, J.) (A.S. GADKARI, J.)
