Himachal Pradesh High Court
Dr. Ajay Kumar Gupta vs State Of Himachal Pradesh on 13 September, 2024
Neutral Citation No. ( 2024:HHC:8531 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 528 of 2022
.
Reserved on: 12.08.2024.
Date of Decision: 13.09.2024.
Dr. Ajay Kumar Gupta ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Petitioner : Mr. Abhishek Sethi, Advocate.
For the Respondents : Mr. Jitender Sharma, Additional
Advocate General, for respondent
No.1/State.
Mr. Ashok Kumar Tyagi, Advocate,
for respondent No.2.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
quashing of FIR No.4 of 2020, dated 20.05.2020, for the
commission of offences punishable under Sections 7 & 8 of the
Prevention of Corruption Act (hereinafter referred to as the Act)
registered at Police Station State Vigilance and Anti-Corruption
Bureau, Shimla along with the consequent proceedings, namely,
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Neutral Citation No. ( 2024:HHC:8531 )
corruption case No. 6 of 2021 pending before learned Special
Judge, Shimla.
.
2. It has been asserted that a false case was made
against the petitioner based on an audio recording related to the
demand of ₹ 5,00,000 from a supplier. The police conducted
preliminary verification and thereafter registered the FIR. The
petitioner took charge as Director of Health Shimla on 01.11.2018
pursuant to the Notification dated 31.10.2018. The co-accused
Prithvi Singh is an employee of Apex Diagnostic and is stated to
be working as a liaisoning agent of M/s Bioaide Corporation for
supplying the PPE kits to the Directorate of Health, Shimla. The
petitioner and Prithvi Singh have known each other since the
time the petitioner was posted as CMO, Nahan. There was a need
for PPE Kits in the Directorate of Health and Prithvi Singh was in
regular touch with the petitioner. As per the prosecution, 63
calls were exchanged between the petitioner and the co-
accused. The police seized the mobile phones of the petitioner
and the co-accused and found the call recording in the mobile
phone of the petitioner. The call recording shows that Prithvi
Singh was enquiring about the payment of the supply of the PPE
Kits and was seeking another order of five thousand PPE Kits
Neutral Citation No. ( 2024:HHC:8531 )
before the commencement of competitive bids. The co-accused
claimed that he was bringing ₹ 3 lakhs in cash to Shimla and the
.
petitioner was insisting on the payment of ₹ 2 lakhs more. The
police conducted the investigation and arrested the petitioner
and the co-accused. The police filed a charge sheet after the
completion of the investigation. The police could not have
investigated the matter in view of Section 17A of the Act, as the
act done by the petitioner was relatable to the recommendation
made or the decision taken by him to purchase the PPE kits. The
registration of the FIR and subsequent proceedings without
approval as required under Section 17A of the Act are without
jurisdiction. Therefore, it was prayed that the present petition
be allowed and the FIR and the consequent proceedings be
quashed.
3. The petition is opposed to filing a reply making
preliminary submission regarding lack of maintainability. It was
asserted that the petitioner failed to exhaust the alternate
remedies available to him before approaching this Court. He
argued the matter at length before the learned Trial Court on the
point of framing charge. Thereafter, he sought an adjournment
to address further argument, which was allowed. The petitioner
Neutral Citation No. ( 2024:HHC:8531 )
approached this Court instead of completing the arguments
before the learned Trial Court. The audio recording was sent to
.
SFSL and as per the report, the same matched with the voice of
the petitioner. The petitioner took charge as the Directorate of
Health on 01.11.2018. Various equipment including PPE kits were
procured from various suppliers during the COVID-19 Pandemic.
The petitioner purchased PPE Kits from one supplier, namely,
M/S Bioaide Corporation, Manimajra for which co-accused
Prithvi Singh was working as a liasoning agent. The purchase
was made without issuing tenders. The petitioner demanded
money from the co-accused for the early release of payment for
the supply of the PPE Kits. No conclusive evidence could be
collected about the source of money, time and place of
acceptance of ₹ 5 lakhs by the petitioner. However, co-accused
Prithvi Singh visited the Directorate of Health on 17.04.2020.
The petitioner committed the offence punishable under Section
7(b) of the Act. The police filed the charge sheet before the
learned Trial Court after the completion of the investigation.
Section 17A of the Act is not a blanket protection but protection
to the honest public servant for the action taken by him while
Neutral Citation No. ( 2024:HHC:8531 )
discharging his official duties. Therefore, it was prayed that the
present petition be dismissed.
.
4. A rejoinder denying the contents of the reply and
affirming those of the petition was filed.
5. I have heard Mr Abhishek Sethi, learned counsel for
the petitioner/accused, Mr Jitender Sharma, learned Additional
Advocate General for the respondent/State and Mr Ashok Kumar
Tyagi, learned counsel for co-accused Prithvi Singh.
6. Mr. Abhishek Sethi, learned counsel for the
petitioner/accused submitted that he is confining his arguments
to the applicability of Section 17A of the Act in terms of the order
dated 27.05.2024. The matter regarding the interpretation of
Section 17A of the Act has been referred to the Larger Bench by
the Hon'ble Supreme Court in Nara Chandrababu Naidu versus
State of Andhra Pradesh (SC) 2024 INSC 41 but this will not mean
that the Courts will stop adjudicating this question. He relied
upon the judgment of the Hon'ble Supreme Court in Union
Territory of Ladakh versus Jammu and Kashmir National
Conference 2023 INSC 804. The provision of Section 17A of the Act
is mandatory and no enquiry, inquiry or investigation can take
Neutral Citation No. ( 2024:HHC:8531 )
place without approval. The petitioner/accused had placed the
orders for PPE kits in the discharge of his official duties and
.
Section 17A of the Act applies to the present case. The
investigation conducted by the police without approval is non-
est and void. The charge sheet filed based on such an
investigation also cannot stand. Therefore, he prayed that the
present petition be allowed and the FIR and consequent
proceedings be ordered to be quashed. He relied upon the
judgments of Yashwant Sinha versus Central Bureau of
Investigation 2020 (2) SCC 338, Yogesh Nayyar versus State of
Madhya Pradesh, 2023 ILR (M.P.) 1974, Hemant Nimbalkar versus
State of Karnataka, (Karnataka) Writ Petition No. 14014 of 2020
dated 19.03.2021, Himanshu Yadav versus State of Rajasthan S.B.
Civil Writ Petition No. 17545 of 2021 dated 19.01.2022, and
Bhayabhai Gigabhai Sutreja versus State of Gujarat, 2021 CriLJ 585
in support of his submission.
7. Mr. Jitender Sharma learned Additional Advocate
General for the respondent/State submitted that Section 17A of
the Act does not provide blanket protection to the public servant
for all the acts but only for the acts relatable to any
recommendation made or decision taken by such public servant
Neutral Citation No. ( 2024:HHC:8531 )
in the discharge of his official functions or duties. The demand
for bribes does not fall within the definition of an offence
.
relatable to any recommendations made or decisions taken by
the public servant in the discharge of his official functions. He
relied upon the judgment of this Court in Abhishek Sharma vs
State of HP 2023 Cri. L.J 2424 in support of his submission.
8. Mr Ashok Kumar Tyagi, learned counsel for accused
Prithvi Singh adopted the submission of Mr Abhishek Sethi
learned counsel for the petitioner and submitted that the
provision of Section 17A of the Act is mandatory and no enquiry,
inquiry or investigation can take place without the approval of
the competent authority. Such approval has not been taken in
the present case and the FIR is liable to be quashed.
9. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
10. The parameters for exercising jurisdiction under
Section 482 of Cr.P.C. were laid down by the Hon'ble Supreme
Court in A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it
was observed: -
9. The law with regard to the exercise of jurisdiction under
Section 482 of Cr. P.C. to quash complaints and criminal
Neutral Citation No. ( 2024:HHC:8531 )
proceedings has been succinctly summarized by this Court
in the case of Indian Oil Corporation v. NEPC India Limited
(2006) 6 SCC 736: 2006 INSC 452 after considering the
earlier precedents. It will be apposite to refer to the
.
following observations of this Court in the said case,
which read thus:
"12. The principles relating to the exercise of
jurisdiction under Section 482 of the Code of Criminal
Procedure to quash complaints and criminal
proceedings have been stated and reiterated by this
Court in several decisions. To mention a few--
Madhavrao Jiwajirao Scindia v. Sambhajirao
Chandrojirao Angre [(1988) 1 SCC 692: 1988 SCC (Cri)
234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC
335: 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal
Singh Gill [(1995) 6 SCC 194: 1995 SCC (Cri)
1059], Central Bureau of Investigation v. Duncans Agro
Industries Ltd. [(1996) 5 SCC 591: 1996 SCC (Cri)
1045], State of Bihar v. Rajendra Agrawalla [(1996) 8
SCC 164: 1996 SCC (Cri) 628], Rajesh Bajaj v. State NCT of
Delhi [(1999) 3 SCC 259: 1999 SCC (Cri) 401], Medchl
Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000)
3 SCC 269: 2000 SCC (Cri) 615], Hridaya Ranjan Prasad
Verma v. State of Bihar [(2000) 4 SCC 168: 2000 SCC (Cri)
786], M. Krishnan v. Vijay Singh [(2001) 8 SCC 645: 2002
SCC (Cri) 19] and Zandu Pharmaceutical Works
Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122: 2005
SCC (Cri) 283]. The principles, relevant to our purpose
are:
(i) A complaint can be quashed where the
allegations made in the complaint, even if they are
taken at their face value and accepted in their
entirety, do not prima facie constitute any offence
or make out the case alleged against the accused.
For this purpose, the complaint has to be
examined as a whole, but without examining the
merits of the allegations. Neither a detailed
inquiry nor a meticulous analysis of the material
Neutral Citation No. ( 2024:HHC:8531 )
nor an assessment of the reliability or
genuineness of the allegations in the complaint is
warranted while examining prayer for quashing a
complaint.
.
(ii) A complaint may also be quashed where it is a
clear abuse of the process of the court, as when the
criminal proceeding is found to have been initiated
with mala fides/malice for wreaking vengeance or
to cause harm, or where the allegations are absurd
and inherently improbable.
(iii) The power to quash shall not, however, be
used to stifle or scuttle a legitimate prosecution.
The power should be used sparingly and with
abundant caution.
(iv) The complaint is not required to verbatim
reproduce the legal ingredients of the offence
alleged. If the necessary factual foundation is laid
in the complaint, merely on the ground that a few
ingredients have not been stated in detail, the
proceedings should not be quashed. Quashing of
the complaint is warranted only where the
complaint is so bereft of even the basic facts which
are necessary for making out the offence.
(v.) A given set of facts may make out: (a) purely a
civil wrong; (b) purely a criminal offence; or (c) a
civil wrong as also a criminal offence. A
commercial transaction or a contractual dispute,
apart from furnishing a cause of action for seeking
remedy in civil law, may also involve a criminal
offence. As the nature and scope of a civil
proceeding are different from a criminal
proceeding, the mere fact that the complaint
relates to a commercial transaction or breach of
contract, for which a civil remedy is available or
has been availed, is not by itself a ground to quash
the criminal proceedings. The test is whether the
Neutral Citation No. ( 2024:HHC:8531 )
allegations in the complaint disclose a criminal
offence or not.
11. Similar is the judgment in Maneesha Yadav v. State of
.
U.P., 2024 SCC OnLine SC 643, wherein it was held: -
12. We may gainfully refer to the following observations
of this Court in the case of State of Haryana v. Bhajan
Lal1992 Supp (1) SCC 335: 1990 INSC 363:
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this
Court in a series of decisions relating to the exercise
of the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the
following categories of cases by way of illustration
wherein such power could be exercised either to
prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive
list of myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if
they are taken at their face value and accepted
in their entirety do not prima facie constitute
any offence or make out a case against the
accused.
(2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
Neutral Citation No. ( 2024:HHC:8531 )
within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations made
.
in the FIR or complaint and the evidence
collected in support of the same do not disclose
the commission of any offence and make out a
case against the accused.
(4) Where the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation
is permitted by a police officer without an order
of a Magistrate as contemplated under Section
155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or
the concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or the
concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge.
103. We also give a note of caution to the effect
that the power of quashing a criminal
proceeding should be exercised very sparingly
and with circumspection and that too in the
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rarest of rare cases; that the court will not be
justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint
.
and that the extraordinary or inherent powers
do not confer an arbitrary jurisdiction on the
court to act according to its whim or caprice."
12. The present petition has to be decided as per the
parameters laid down by the Hon'ble Supreme Court.
13. Hon'ble Supreme Court held in Yashwant Sinha v. CBI,
(2020) 2 SCC 338: 2019 SCC OnLine SC 1460 that no investigation,
inquiry or enquiry can be conducted against the acts done by a
public servant in discharge of his official duties without the
approval of the competent authority in view of Section 17A of
Prevention of Corruption Act. It was observed at page 390:
117. In terms of Section 17-A, no police officer is
permitted to conduct any enquiry or inquiry or conduct
investigation into any offence done by a public servant
where the offence alleged is relatable to any
recommendation made or decision taken by the public
servant in the discharge of his public functions without
previous approval, inter alia, of the authority competent to
remove the public servant from his office at the time
when the offence was alleged to have been committed. In
respect of the public servant, who is involved in this case,
it is clause (c), which is applicable. Unless, therefore,
there is previous approval, there could be neither inquiry
nor enquiry or investigation. It is in this context apposite
to notice that the complaint, which has been filed by the
petitioners in Writ Petition (Criminal) No. 298 of 2018,
moved before the first respondent CBI, is done after
Neutral Citation No. ( 2024:HHC:8531 )
Section 17-A was inserted. The complaint is dated 4-10-
2018. Paragraph 5 sets out the relief which is sought in
the complaint which is to register an FIR under various
.
provisions. Paras 6 and 7 of the complaint are relevant in
the context of Section 17-A, which read as follows:
"6. We are also aware that recently, Section 17-A of the
Act has been brought in by way of an amendment to
introduce the requirement of prior permission of the
Government for investigation or inquiry under the
Prevention of Corruption Act.
7. We are also aware that this will place you in the
peculiar situation, of having to ask the accused
himself, for permission to investigate a case against
him. We realise that your hands are tied in this matter,
but we request you to at least take the first step, of
seeking permission of the Government under Section
17-A of the Prevention of Corruption Act for
investigating this offence and under which, "the
concerned authority shall convey its decision under this
section within a period of three months, which may, for
reasons to be recorded in writing by such authority, be
extended by a further period of one month"." (emphasis
supplied)
118. Therefore, the petitioners have filed the complaint
fully knowing that Section 17-A constituted a bar to any
inquiry enquiry or investigation unless there was
previous approval. In fact, a request is made to at least
take the first step of seeking permission under Section
17-A of the 2018 Act. Writ Petition (Criminal) No. 298 of
2018 was filed on 24-10-2018 and the complaint is based
on non-registration of the FIR. There is no challenge to
Section 17-A. Under the law, as it stood, both on the date
of filing the petition and even as of today, Section 17-A
continues to be on the statute book and it constitutes a
bar to any inquiry or enquiry or investigation. The
petitioners themselves, in the complaint, request to seek
Neutral Citation No. ( 2024:HHC:8531 )
approval in terms of Section 17-A but when it comes to
the relief sought in the writ petition, there was no relief
claimed in this behalf.
.
119. Even proceeding on the basis that on petitioners'
complaint, an FIR must be registered as it purports to
disclose cognizable offences and the Court must so direct,
will it not be a futile exercise having regard to Section 17-
A. I am, therefore, of the view that though otherwise the
petitioners in Writ Petition (Criminal) No. 298 of 2018
may have made out a case, having regard to the law
actually laid down in Lalita Kumari [Lalita Kumari v. State
of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524], and more
importantly, Section 17-A of the Prevention of Corruption
Act, in a review petition, the petitioners cannot succeed.
However, it is my view that the judgment sought to be
reviewed, would not stand in the way of the first
respondent in Writ Petition (Criminal) No. 298 of 2018
from taking action on Ext. P-1, complaint in accordance
with law and subject to the first respondent obtaining
previous approval under Section 17-A of the Prevention of
Corruption Act.
14. The Hon'ble Supreme Court considered the provision
of Section 17A of the Act in Nara Chandrababu Naidu (supra) but
the Hon'ble Judges differed in their views regarding its
interpretation and the applicability; hence, the matter was
referred to a Larger Bench.
15. It was held in Union Territory of Ladakh v. Jammu &
Kashmir National Conference, 2023 SCC OnLine SC 1140 that mere
reference to a Larger Bench does not unsettle the declared law.
The High Courts and the Tribunals should not stay their hands
Neutral Citation No. ( 2024:HHC:8531 )
merely because a reference was made to a Larger Bench. It was
observed:
.
"32. ....[I]t is settled that mere reference to a larger Bench
does not unsettle declared law. In Harbhajan Singh v. State
of Punjab, (2009) 13 SCC 608, a 2-judge Bench said:
"15. Even if what is contended by the learned counsel is
correct, it is not for us to go into the said question at this
stage; herein cross-examination of the witnesses had
taken place. The Court had taken into consideration the
materials available to it for the purpose of arriving at a
satisfaction that a case for exercise of jurisdiction under
Section 319 of the Code was made out. Only because of the
correctness of a portion of the judgment in Mohd. Shaf
[(2007) 14 SCC 544 : (2009) 1 SCC (Cri) 889 : (2007) 4
SCR 1023 : (2007) 5 Scale 611] has been doubted by
another Bench, the same would not mean that we should
wait for the decision of the larger Bench, particularly
when the same instead of assisting the appellants runs
counter to their contention." (emphasis supplied)
33. In Ashok Sadarangani v. Union of India, (2012) 11 SCC
321, another 2-Judge Bench indicated:
"29. As was indicated in the Harbhajan Singh case
[Harbhajan Singh v. State of Punjab, (2009) 13 SCC
608 : (2010) 1 SCC (Cri) 1135], the pendency of a reference
to a larger Bench, does not mean that all other
proceedings involving the same issue would remain
stayed till a decision was rendered in the reference. The
reference made in Gian Singh's case [(2010) 15 SCC 118]
need not, therefore, detain us. Till such time as the
decisions cited at the Bar are not modified or altered in
any way, they continue to hold the field." (emphasis
supplied)
34. On the other hand, when it was thought proper that
other Benches of this Court, the High Courts and the
Courts/Tribunals below stay their hands, the same was
Neutral Citation No. ( 2024:HHC:8531 )
indicated in as many words, as was the case in State of
Haryana v. G D Goenka Tourism Corporation
Limited, (2018) 3 SCC 585:
.
"9. Taking all this into consideration, we are of the
opinion that it would be appropriate if in the interim and
pending a final decision on making a reference (if at all)
to a larger Bench, the High Courts be requested not to deal
with any cases relating to the interpretation of or
concerning Section 24 of the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013. The Secretary-General will
urgently communicate this order to the Registrar General
of every High Court so that our request is complied with.
10. Insofar as the cases pending in this Court are
concerned, we request the Benches concerned dealing
with similar matters to defer the hearing until a decision
is rendered one way or the other on the issue whether the
matter should be referred to a larger Bench or not. Apart
from anything else, deferring the consideration would
avoid inconvenience to the litigating parties, whether it is
the State or individuals." (emphasis supplied)
35. We are seeing before us judgments and orders by High
Courts not deciding cases on the ground that the leading
judgment of this Court on this subject is either referred to
a larger Bench or a review petition relating thereto is
pending. We have also come across examples of High
Courts refusing deference to judgments of this Court on
the score that a later Coordinate Bench has doubted its
correctness. In this regard, we lay down the position in
law. We make it absolutely clear that the High Courts will
proceed to decide matters on the basis of the law as it stands.
It is not open unless specifically directed by this Court, to
await an outcome of a reference or a review petition, as the
case may be. It is also not open to a High Court to refuse to
follow a judgment by stating that it has been doubted by a
later Coordinate Bench. In any case, when faced with
conflicting judgments by Benches of equal strength of
this Court, it is the earlier one which is to be followed by
Neutral Citation No. ( 2024:HHC:8531 )
the High Courts, as held by a 5-Judge Bench in National
Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC
680. The High Courts, of course, will do so with careful
regard to the facts and circumstances of the case before
.
it." (Emphasis supplied)
16. Thus, a mere reference to the Larger Bench in Nara
Chandrababu Naidu (supra) will not prevent this Court from
adjudicating the question as per the applicable law in view of the
binding precedent of the Hon'ble Supreme Court in Union
Territory of Ladakh (supra).
17. Section 17A of the Act reads as under:
17-A. Enquiry or Inquiry or investigation of offences
relatable to recommendations made or decisions taken by
public servants in the discharge of official functions or
duties.- No police officer shall conduct any enquiry or
inquiry or investigation into any offence alleged to have
been committed by a public servant under this Act, where
the alleged offence is relatable to any recommendation
made or decision taken by such public servant in the
discharge of his official functions or duties, without the
previous approval--
(a) in the case of a person who is or was employed, at
the time when the offence was alleged to have been
committed, in connection with the affairs of the
Union, of that Government;
(b) in the case of a person who is or was employed, at
the time when the offence was alleged to have been
committed, in connection with the affairs of a
State, of that Government;
(c) in the case of any other person, of the authority
competent to remove him from his office, at the
Neutral Citation No. ( 2024:HHC:8531 )
time when the offence was alleged to have been
committed:
Provided that no such approval shall be necessary for
.
cases involving the arrest of a person on the spot on the
charge of accepting or attempting to accept any undue
advantage for himself or any other person:
Provided further that the concerned authority shall
convey its decision under this Section within a period of
three months, which may, for reasons to be recorded in
writing by such authority, be extended by a further period
of one month."
18.
It is apparent from the plain reading of the Section
that it applies to an offence relatable to any recommendation
made or decision taken by such public servant in the discharge
of his official functions or duties. It was laid down by the Delhi
High Court in Devender Kumar v. CBI, 2019 SCC OnLine Del 6482
that where the complainant alleges coercion or extortion, such
an act cannot be said to be in the discharge of official duties and
the approval under Section 17A will not be necessary. It was
observed:
"35. Section 7 of the PC Act, stipulates that any public
servant who obtains accepts or attempts to obtain from
any person an undue advantage with the intention to
perform or cause the performance of public duty
improperly or dishonestly or to cause the forbearance to
perform such duty either by himself or by another public
servant would have committed an offence under the said
section. Even the act of a public servant to perform such
improper or dishonest public duty, including for a
Neutral Citation No. ( 2024:HHC:8531 )
reward, is a punishable offence under the said section. In
the aforesaid section, the element of threat or coercion is
not specifically mentioned. The said section does not
necessarily cover the element of threat and coercion as
.
alleged by the complainant in the present case. According
to the Illustration to Explanation (i) of section 7 of the PC
Act, a person would be guilty of an offence under the said
section if he asks a public servant to give him an amount
of five thousand rupees to process his routine ration card
application on time. The nature of the offence
contemplated under section 7 of the PC Act is different.
The complexion or nature of a case depends on its
essential ingredients - the facts. If the allegations are
overwhelming by under the IPC, then the case will be so
construed.
37. The complainant-Sana has alleged coercion, threat
and extortion of money, albeit for an offence under
Section 7 of the PC Act as well, but such acts by a public
servant cannot be said to be in the discharge of his official
function or duties. Therefore, in the present case, the
approval under Section 17A of the Act would not be
necessary."
19. Kerela High Court held in Jayaprakash J. v. State of
Kerala, 2021 SCC OnLine Ker 4952 that the bar under Section 17A
is meant to protect public servants from malicious, vexatious
and baseless prosecution. It cannot be considered a protective
shield for corrupt public servants. The sine qua non for the
applicability of Section 17A is that the offence allegedly
committed by a public servant is related to any recommendation
made or decision taken by him in the discharge of his official
functions or duties and does not apply to all offences committed
Neutral Citation No. ( 2024:HHC:8531 )
by a public servant. Where a public servant misappropriates
money based on bogus bills, the act is not relatable to the
.
decision taken or the recommendation made by him. It was
observed:
"18. A close scrutiny of the provisions contained in
Section 17A of the Act would reveal the following : (1) The
bar under Section 17A of the Act operates against a police
officer (2) It prohibits a police officer from conducting
any enquiry or inquiry or investigation, into any offence
alleged to have been committed by a public servant under
the Act without the previous approval of the prescribed
authority (3) The bar under the provision operates or
applies only when the offence allegedly committed by a
public servant under the Act relates to any
recommendation made or decision taken by such public
servant in discharge of his official functions or duties (4)
The authority competent to grant previous approval for
enqiry or inquiry or investigation is the Central
Government in the case of a person employed in
connection with the affairs of the Union (5) The authority
competent to grant previous approval for enquiry or
inquiry or investigation is the State Government in the
case of a person employed in connection with the affairs
of a State (6) The authority competent to grant previous
approval for enquiry or inquiry or investigation in the
case of any other person is the authority competent to
remove the public servant from his office (7) The
provision also applies in case of a retired public servant.
The previous approval envisaged under Section 17A of the
Act is necessary even if the public servant has ceased to
hold his office (8) Section 17A of the Act does not apply to
cases involving the arrest of a person on the spot on the
charge of accepting or attempting to accept any undue
advantage for himself or for any other person (9) The
time which shall be taken by the authority concerned to
Neutral Citation No. ( 2024:HHC:8531 )
convey its decision on granting of approval is three
months (10) The authority may, for reasons to be
recorded in writing, extend the above time by a further
period of one month.
.
19. The object of Section 17A of the Act is to protect public
servants from malicious, vexatious and baseless
prosecution. It cannot be considered as a protective shield
for corrupt public servants. A public servant cannot be left
to be under constant apprehension that bona fide
decisions taken by him would be open to enquiry, inquiry
or investigation on the basis of frivolous and false
complaints made against him. If every decision taken by a
public servant is viewed with suspicion, the public
administration will come to a grinding halt as the persons
responsible for taking decisions would lose their
enthusiasm. Section 17A of the Act intends to avoid such a
situation.
20. The requirement of seeking previous approval
presupposes that the offence under the Act allegedly
committed by the public servant is relatable to any
recommendation made or decision taken by him in the
discharge of his official functions or duties. The bar under
Section 17A of the Act does not apply to investigation
conducted into all or every offence under the Act allegedly
committed by a public servant. The bar under the
provision operates or applies only when the offence
allegedly committed by a public servant under the Act
relates to any recommendation made or decision taken by
such public servant in the discharge of his official
functions or duties.
21. The expression "discharge of his official functions or
duties" in Section 17A of the Act reflects the legislative
intent that the protection envisaged is not a blanket
protection. The purpose is to protect an honest and
responsible public servant if the recommendation made
or decision taken by him is in the discharge of his official
functions or duties. As a necessary corollary, previous
approval is required only if the recommendation made or
Neutral Citation No. ( 2024:HHC:8531 )
the decision taken is directly concerned with the official
functions or duties of the public servant. When a
recommendation or decision is made by a public servant,
which is not directly and reasonably connected with his
.
official functions or duties, he is not entitled to get
protection under Section 17A of the Act.
22. In order to apply the provisions of Section 17A of the
Act, there shall be a "decision" or "recommendation" by
a public servant against which an enquiry or investigation
is under contemplation. Such "decision" or
"recommendation" shall be a "decision" taken or
"recommendation" made by the public servant in the
discharge of his official functions or duties.
23. In the present case, the offence under Section 13(1)(a)
of the Act is alleged against the accused. Section 13(1)(a)
of the Act states that a public servant is said to commit
the offence of criminal misconduct if he dishonestly or
fraudulently misappropriates or otherwise converts for
his own use any property entrusted to him or under his
control as a public servant or allows any other person to
do so.
24. In the present case, there is no allegation against
accused 2 to 4 that the offence under Section 13(1)(a) of
the Act allegedly committed by them relates to any
decision taken or recommendation made by them in the
discharge of their official functions or duties. Therefore,
the bar under Section 17A of the Act does not apply to the
investigation of the case against them.
25. The allegation against the first petitioner, who is the
first accused, is that he sanctioned the payment of money
on the basis of bogus bills created by him and that he
misappropriated the money. Learned counsel for the
petitioners contended that the offence under Section 13(1)
(a) of the Act alleged against the first accused relates to
the decision taken by him to grant sanction for payment
of money to J.P. Traders and therefore, prior approval
from the competent authority was required before
Neutral Citation No. ( 2024:HHC:8531 )
conducting an investigation into the above offence
allegedly committed by him.
26. There is no merit in the above contention. If the
.
allegation against the first accused was only that he
sanctioned payment of money and thereafter, he
misappropriated the money without paying it to the
person to whom it was due, the aforesaid contention
could have perhaps been accepted. Here, the allegation is
that the first accused sanctioned payment of money on
the basis of false and forged documents created by him
and that he misappropriated the amount without actually
paying it to the party concerned. The sanction for
payment of money on the basis of forged documents
makes all the difference. The decision taken or
recommendation made by the first accused for payment
of money cannot be considered to be an act done in the
discharge of his official functions or duties because such
decision or recommendation was made by him not on the
basis of genuine documents but on the basis of
documents allegedly forged by him.
27. In Shambhoo Nath Misra v. State of U.P.: (1997) 5 SCC
326: AIR 1997 SC 2102, the Apex Court has held as follows:
"It is not the official duty of the public servant to
fabricate the false record and misappropriate the
public funds etc. in furtherance of or in the discharge of
his official duties. The official capacity only enables
him to fabricate the record or misappropriate the
public fund etc. It does not mean that it is integrally
connected or inseparably interlinked with the crime
committed in the course of the same transaction."
28. Where a criminal act is performed under the colour of
authority but which in reality is for the public servant's
own pleasure or benefit then such acts shall not be
protected under the doctrine of State immunity
(See Parkash Singh Badal v. State of Punjab: (2007) 1 SCC
1: AIR 2007 SC 1274).
Neutral Citation No. ( 2024:HHC:8531 )
29. In Devender Kumar v. Central Bureau of Investigation:
(2019) 1 Crimes 726, the Delhi High Court has observed as
follows:
.
"Section 17A as it reads and the legislative intent in its
enactment can only be to protect public servants in the
bonafide discharge of official functions or duties.
However, when the act of a public servant is ex-facie
criminal or constitutes an offence, prior approval of the
Government would not be necessary".
30. In T.O. Sooraj v. State of Kerala [(2021) 4 KLT (Online)
1035: 2021 SCC OnLine Ker 2896], this Court had occasion
to observe as follows:
"Use or utilization of public funds by a public servant
under the colour of authority but really for his own
benefit cannot be considered as an act done in
discharge of his official functions or duties. Such an act
is not entitled to get the protection under Section 17A
of the Act".
31. In H.H.B. Gill v. The King: AIR 1948 PC 128, it has been
observed as follows:
"A public servant can only be said to act or to purport
to act in the discharge of his official duty if his act is
such as to lie within the scope of his official duty. Thus,
a Judge neither acts nor purports to act as a Judge in
receiving a bribe, though the judgment which he
delivers may be such an act: nor does a government
medical officer act or purport to act as a public servant
in picking the pocket of a patient whom he is
examining, though the examination itself may be such
an act. The test may well be whether the public
servant, if challenged, can reasonably claim that, what
he does, he does in virtue of his office".
32. Tested on the touchstone of the principles mentioned
above, the decision taken or recommendation made by
the first accused to grant sanction for payment of money
on the basis of documents allegedly forged by him and
committing misappropriation of the amount cannot be
Neutral Citation No. ( 2024:HHC:8531 )
considered as acts done by him in the discharge of his
official duties or functions. Therefore, no prior approval
from the competent authority was necessary for an
investigation into the offence under Section 13(1)(a) of
.
the Act alleged against him."
20. A similar view was taken by the same high Court in
Shankara Bhat v. State of Kerala, 2021 SCC OnLine Ker 3427 and it
was held:
"14. Under section 17A, which was inserted by Act 16 of
2018, and which came into force with effect from
26/7/2018, the previous approval by the concerned
authorities is essential. The crucial question that arises
for consideration in these proceedings is whether
previous approval from the competent authority needs to
be obtained for every enquiry, inquiry or investigation,
into every offence committed by the public servant. The
crux of the issue is whether the above provision is an
omnibus, all-pervasive prerequisite for every enquiry or
inquiry or investigation into every act done by the public
servant in the discharge of his official functions.
15. No doubt, Section 197(1) Cr.P.C. and Section 17A of the
P.C. Act operate in two different fields and distinct
situations. Apparently, it has nothing in common at all.
However, the consistent principle laid down by the
decisions referred to supra, in relation to any offence
committed by a public servant while "acting or
purporting to act in the discharge of his official duty" can
be profitably adverted to answer the legal issue involved
in relation to section 17A of the P.C. Act. The decisions
referred to supra are based on the principle that the
commission of crimes by a public servant which had no
connection with his official duty, cannot be considered as
one within the scope of section 197 Cr.P.C. Extending the
principle to S.17A of P.C. Act, it can be said that offences
like misappropriation, falsification of accounts, cheating,
Neutral Citation No. ( 2024:HHC:8531 )
criminal breach of trust, receiving bribes, etc. are beyond
the scope of the provision.
16. Statutorily, cases involving the arrest of a person on
.
the spot on charge of accepting or attempting to accept
any undue advantage for himself or any other person,
have been exempted from the purview of the above
previous approval. This is justifiably so, since swift and
prompt action is liable to be taken while apprehending a
person who is stated to have demanded and received a
bribe and the arresting officer cannot wait for previous
approval.
17. While considering the scope of section 17A of the PC
Act, the issue has to be analysed in the background of the
views expressed at the time of drafting of the enactment.
This is referred to analyse the background in which
section 17A was sought to be introduced and also to
analyse whether it covers every enquiry, inquiry or
investigation. The Law Commission of India in its
254th report had referred to the scope of section 17A (1) of
the Prevention of Corruption Amendment Bill dated 2013.
After referring to the proposed section 17 A (1), the Law
Commission in Chapter 7, at para 7.1.2., opined that the
proposed section 17A (1) introduced a limited requirement
of previous approval to prosecute persons, who are or
were alleged to have been public servants at the time of
the alleged offence. It was held that this was in line with
the provisions of Section 197 Cr.P.C. and the scheme of
Section 14 of the Lokpal Act. It was opined that the
proviso proposed to section 17 A(1) was similar to clause 2
of the repealed section 6A of the Delhi Special Police
Establishment Act, 1946, which provided that in certain
factual scenarios, no sanction previous approval would be
necessary. However, the proviso to the proposed section
17A(1) was narrower than section 6A of the Delhi Special
Police Establishment Act, requiring that even if a person
is caught on the spot while accepting illegal gratification.,
it would have to be shown by the prosecution that it was
Neutral Citation No. ( 2024:HHC:8531 )
intended that such acceptance was consequential to a
relevant public function or activity being performed.
18. In the proviso to the proposed section 17A (1), it was
.
provided that the taking of a bribe must have been with
the intention that a relevant public function or activities
shall be performed improperly, either by himself or by
another public servant. It was held by the law commission
that the above provision imposed a duty on the
prosecution not only to show that the bribe or illegal
remuneration/consideration was obtained, that it was in
consequence of a relevant public function or that duty
shall be performed improperly, either by himself or any
public servant. Hence, it was suggested that the above
part in the proviso shall be omitted. Except that, no other
suggestion was made by the Law Commission, in relation
to section 17A. The above report does not throw any light
as to the scope and ambit of section 17A of the PC Act,
except that it was in line with Section 197 Cr.P.C.
19. The select committee of Rajya Sabha, on the
Prevention of Corruption Act Amendment Bill 2017, in its
report submitted on 12/8/2017 had referred to the scope
of section 17A PC Act. It seems that several objections
were raised regarding the above provision. Report reveals
that the CBI had opposed the provision, holding that it
may cause unnecessary delay in the investigation. All
other authorities/representatives generally supported the
above amendment, with few suggestions regarding the
authority competent for granting sanction. Accordingly,
the committee agreed with the amendment as proposed
by the Government and recommended that clause 12, for
insertion of section 17 A in the PC Act 1988, be effected.
20. Section 17A PC Act has to be analysed in the above
background. The most crucial part of section 17A provides
that previous approval is required in relation to enquiry
or inquiry or investigation into any offence alleged to
have been committed by a public servant under this Act
"where the alleged offence is relatable to any
recommendation made or decision taken by such public
Neutral Citation No. ( 2024:HHC:8531 )
servant". It seems that the above part of the section is the
most crucial part of the section since it imposes a rider on
the otherwise absolute power under section 17A that
enquiry, inquiry or investigation into every act needed
.
prior approval. It is clear that it is not that every offence
alleged to have been committed by the public servant
under the Act that needed prior approval. Prior approval
under section 17A was required only where the alleged
offence was relatable to "any recommendation made or
decision taken by the public servant". This seems to be
the heart and soul of the above section. It is clear that the
Parliament has consciously used the above words. If the
intention of the Parliament was to impose a pre-
condition that every enquiry, inquiry or investigation into
every allegation of offence against a public servant
required prior sanction, the words "where the alleged
offence is relatable to any recommendation made or
decision taken by the public servant" ought not have been
there. If the above words are omitted, it would have
meant that no police officer shall conduct any enquiry or
inquiry or investigation into any offence alleged to have
been committed by a public servant under this Act in the
discharge of his official function or duties without the
previous approval of the competent authority. In other
words, if the intention of the statute was to cover every
enquiry, investigation or inquiry, the words "where the
alleged offence is relatable to any recommendation made
or decision taken by the public servant" were
unnecessary, since even without those words it would
have conveyed the intention. Hence, it is clear that the
intention of the Parliament was not to insist on previous
approval in relation to enquiry, inqury or investigation
only in relation to every offence committed by the public
servant.
21. This seems to be in pari materia with section 197
Cr.P.C. and also in tune with the scope of the law laid
down by the Supreme Court in its various decisions
referred to earlier, while discussing the scope of section
Neutral Citation No. ( 2024:HHC:8531 )
197(1), Cr.P.C. If section 17A is interpreted as intending to
cover every investigation, enquiry or inqury into any
offence allegedly committed by a public servant, then it
would have run counter to the spirit of all the above
.
decisions. A contra view that section 17A covers every
offence, would have resulted in a dichotomy, by which
prosecution of a public officer for offences under the IPC
and Prevention of Corruption Act may not require
sanction under section 197(1) Cr.P.C. IPC for offences not
relating to acts done in discharge of the official duty or
purported to be official duty, whereas previous approval,
which is a more rigorous provision, would be required in
relation to inquiry or investigation against every other
offence done by him. Hence, an interpretation in tune
with the entire decisions of the Supreme Court under
section 197(1) Cr.P.C., will have to be adopted, which will
be in consonance with the object of section 17A of the PC
Act.
22. In Dr Subramanyam Swami v. Centre for Public Interest
Litigation ((2014) 8 SCC 682: AIR 2014 SC 2140), a
Constitution Bench of the Supreme Court had occasion to
consider the Constitutional validity of section 6A of the
Delhi's Special Police Establishment Act (25 of 1946),
which provided for the requirement of approval from the
Central Government for investigations/enquiry if the
accused was in the level of joint secretary or above. The
provision was held to be discriminatory, by reason of
classification made between corrupt public officers on the
basis of the status and to that extent, section 6A of the
1946 Act and section 26C of the 2003 Act were held to be
invalid. One criticism raised against section 17A of the PC
Act was that it was introduced to overcome the decision
rendered in Dr. Subramanyam Swami's case. As mentioned
earlier, it is pertinent to note that the legislature has
specifically employed the words to restrict the scope of
section 17A of the PC Act. The scope of the words
"relatable to any recommendation made or decision
taken" has got its own significance. which, according to
Neutral Citation No. ( 2024:HHC:8531 )
me, has great relevance in relation to the restriction
imposed under the Prevention of Corruption Act. It could
not be expected that the Parliament wanted to impose
spokes at three different levels, one under section 17A of
.
the PC Act, the second one by 197 Cr.P.C. and thereafter
under section 19 of the PC Act and thereby paralyzing
every investigation, enquiry or inquiry as against the
public servant. Such an interpretation would have
defeated the very purpose and object of the very statute,
the Prevention of Corruption Act, which was weeding out
corruption from the public domain.
23. The object of the Prevention of Corruption Act is to
protect honest and upright public officers and to ensure
that they are unnecessarily not dragged into litigation. It
is also intended to ensure that the officers are insulated
and protected against unnecessary litigation. Such
protection enables the officers to take prompt and bold
decisions on files and the administrative machinery will
move forward. Otherwise, the officers would be reluctant
to make any official recommendation or to take any
decision on files, apprehending false accusations of
corruption. In this context, it has to be noted that the
scope of section 17A is specifically confined to "any
recommendation made or decision taken by a public
servant" which alone falls within the protection under
section 17A. Definitely, the case of offences like
misappropriation of funds, fraud, falsification of
accounts, criminal breach of trust, conspiracy, etc. cannot
be covered by the protection under section 17A. Definitely,
they do not involve any decision or recommendation at
all. Such acts cannot be considered as one done in the
discharge of his official functions and duties as
contemplated under section 17A. Hence, it cannot, by any
stretch of imagination, be held that investigation into any
of the offences as mentioned above also needs prior
approval, under section 17A. Such an interpretation alone
can be in consonance with the section as interpreted by
the various decisions. In other words, the scope of section
Neutral Citation No. ( 2024:HHC:8531 )
17A is only confined to the investigation, inquiry or
enquiry into any offence which is relatable to any decision
taken or recommendation made by the authority. This
purposive interpretation seems to be in consonance with
.
the scope of section 17A.
24. An identical view was taken by a single judge of the
Delhi High Court in Devendra Kumar v. CBI (W.P.(Criminal)
No. 3247/2018 and connected matters). In that, the scope of
section 17A PC Act was under consideration. The
complainant alleged that he was being harassed by the
investigating officer and that the investigation officer
demanded a huge amount from him for not charging a
case against him. On the question of whether the
prosecution of the police officer required sanction, it was
held by the Delhi High Court that the alleged promise to
the complainant to ultimately give him relief cannot be
said to be done in the discharge of the official function or
duties of the public servant. It was held that the bar to
enquiry or inquiry or investigation under section 17A of
the PC Act is apropos such alleged offence as may be
relatable to any recommendation made or decision taken
by a public servant in the discharge of his official function
or duties. In the present case, there was no
recommendation or decision on record by a public servant
in the discharge of his official functions. It was only such
acts done in the discharge of the official functions that
would have become the subject matter for seeking
approval from the employer. It was held that a public
servant cannot possibly be left to be under constant
apprehension that bona fide decisions taken by him
would be open to enquiry, inquiry or investigation on the
complaint of a stranger. Section 17A, as it reads, and the
legislative intent can only be to protect a public servant in
the bona fide discharge of official functions or duties.
However, when the act of a public servant is exfacie
criminal or constitutes an offence, prior approval of the
Government would not be necessary, it was held.
Neutral Citation No. ( 2024:HHC:8531 )
25. The legal principles involved has been correctly
appreciated by the Delhi High Court. It was reiterated that
the scope of section 17A was that approval under section
17A for conducting any enquiry, inquiry or investigation
.
was warranted only when the act done by the accused,
which he was charged of, was relatable to a decision taken
or recommendation made. If the offence was not relatable
to any such decision or recommendation, prior approval
under section 17A was not required. Hence, any
commission of offence or allegation of acts of public
servant which is ex facie criminal or constitute an offence
or even demanding illegal consideration or receiving of it
either to routinely move the file or to keep the file
pending, without any decision being taken therein, will
not fall within the scope of section 17A. Hence prior
approval under section 17A is not warranted in such cases.
26. The reasonable conclusion that can be arrived at
regarding the scope of section 17A is that prior approval
under section 17A for conducting any enquiry, inquiry or
investigation is required only when the offence alleged is
relatable to a decision taken or recommendation made by
the public authority and it involves a debatable or
suspicious or doubtful recommendation made or decision
taken by the authority. Acts, which are ex-facie criminal
or constitute an offence do not require approval under
section 17A of the P.C. Act. This legal proposition, seems
to be clear from the statute and is in consonance with the
spirit of the Prevention of Corruption Act and also in
consonance with the legal principles laid down in relation
to section 197 Cr.P.C.
27. Applying the above legal principles, I am of the firm
opinion that in the cases at hand, which involve an
allegation of falsification of accounts, breach of trust and
misappropriation of funds or acts which are ex-facie
criminal, no prior approval under section 17A of
Prevention of Corruption Act is required."
Neutral Citation No. ( 2024:HHC:8531 )
21. The Madras High Court held in A. Ganapathi v. State of
T.N., (2022) 1 HCC (Mad) 86 that Anti-Corruption Law has to be
.
interpreted in such a fashion as to strengthen fight against the
corruption and when two constructions are reasonable. The
Court has to accept the one that seeks to eradicate corruption
rather than the one which seeks to perpetuate it. The protection
under Section 17A is to be given to the public servant for rightful
and justifiable reasons. It was held:
"22. .....Further, the Supreme Court referring to
Subramanian Swamy v. Manmohan Singh [Subramanian
Swamy v. Manmohan Singh, (2012) 3 SCC 64 (2012) 1 SCC
(Cri) 1041] held that any anti-corruption law has to be
interpreted in such a fashion as to strengthen fight
against corruption and where two constructions are
eminently reasonable, the court has to accept the one that
seeks to eradicate corruption than the one which seeks to
perpetuate it. Section 17-A protection is given to the
public servant for rightful and justifiable justice. In this
case, it is not so."
22. It was held by Gauhati High Court in Rounak Ali
Hazarika versus State of Assam 2024 SCC online Guhati 612 that
the use of world relatable limits and restricts the offence to be
associated with and connected to a decision taken or
recommendation made by a public servant in the discharge of
official duty or function and Section 17A cannot be extended to
all the offences committed by a public servant. It was observed:
Neutral Citation No. ( 2024:HHC:8531 )
"IV. From a reading of section 17A, the following
mandates of law are discernible:
No police officer can conduct any enquiry or inquiry or
.
investigation without previous approval when it is alleged
that:
A. An offence under PC Act, 1988 has been
committed by a public servant;
B. In the discharge of official function or duties; and
C. Such offence is relatable to:
i. any recommendation made
r or
ii. any decision taken.
V. Thus, when it is alleged that an offence is committed
under the PC Act by a public servant, which is relatable to
a recommendation or decision taken by him, section 17 A
of the act debars a police officer from conducting any
enquiry or investigation, without obtaining approval of
the Union Government or the State Government or the
person competent to remove the public servant, as the
case may be.
VI. The legislature, in its wisdom has applied/used the
word "an offence relatable".
VII. The word "relatable" is an adjective. The legislature
in its wisdom had used the adjective "relatable" to
connect the "Offence" to a "recommendation made" or a
"decision taken." Therefore, such approval shall be
required when the offence is associated with and
connected to a decision taken or recommendation made
by a public servant in the discharge of official duty or
function. Use of the adjective "relatable" to the
"Offence", in the considered opinion of this court limits
and restricts the offence to be associated with and
connected to a decision taken or recommendation made
by a public servant in the discharge of official duty or
Neutral Citation No. ( 2024:HHC:8531 )
function and therefore, can't be extended to all offences
under the P.C. Act.
VIII. Thus, the argument of Mr. Choudhury, learned
.
Senior Counsel that enquiry/Inquiry/Investigation of all
cases under PC Act'1988, except trap cases, require prior
approval of competent authority don't find favour of this
Court. The legislature could have clearly made such
provision application to all the offences under the PC Act
1988 without relating the offences to "any decision" or
"recommendation."
IX. It is by now well settled that the provision of
law/statutes should be interpreted according to their
literal or plain meaning, giving the words their ordinary
and natural meaning. In the case in hand not only the
literal meaning is clear but also such literal interpretation
doesn't lead to an absurd or unreasonable result. It is also
unambiguous. By relating the offences to a decision taken
or recommendation made, the legislature excluded other
offences, not relatable to a decision taken or
recommendation made in the discharge of official duties.
X. Therefore, this Court is of the unhesitant view that
approval is not required in all situations and the alleged
offence must be relatable to an offence committed by a
public servant while taking a decision or making any
recommendation.
XI. It is the general principle that the police is bound to
register an FIR and to investigate when commission of
the cognizable offence is disclosed in the FIR/complaint.
However, as discussed and determined hereinabove,
protection in the shape of "prior approval" is given even
when cognizable offences are made, under the PC Act'
1988 which is relatable to a decision taken or
recommendation made.
XII. Thus, from the limited nature of protection granted
under section 17A of the Act 1988, as discussed
hereinabove, the intention of the legislature can also be
gathered. In the considered opinion of this court, the
Neutral Citation No. ( 2024:HHC:8531 )
intention is to provide a protective shield to a public
servant from being subjected to an enquiry or
investigation by a police officer, when the alleged offence
relates to a decision-making process resulting in a
.
decision and/or a recommendation made in discharge of
official duty. The object is to facilitate the officers to take
decision and make recommendation without there being
any fear of frivolous complaint inasmuch as his/her
employer shall have an opportunity to consider, whether
the allegation is correct or not or whether the decision
taken/recommendation made in discharge of official duty
is/are genuine or taken in lieu of illegal gratification.
XIII. Offences and penalties are detailed under chapter III
of the PC Act 1988. Section 7 of the Act relates specifically
to taking a bribe for the performance of public duty
improperly or dishonestly or to forebear from performing
such duty by a public officer himself or by another public
servant or improper or dishonest performance of public
duty or inducement of another public servant to perform
public duty dishonestly etc. Therefore, section 7 relates to
dishonest performance of duty by taking an undue
advantage/illegal gratification.
Section 7A relates to the offences of taking undue
advantage to influence public servants by corrupt means
or by the exercise of public influence.
Section 8 relates to bribe giver. Section 9 relates to
bribing a public servant by a commercial organization.
Section 11 deals with the offence when a public servant
obtains undue advantage. Section 13 deals with criminal
misconduct by a public servant.
XIV. In the case in hand the allegation is criminal
misconduct by the petitioner. A criminal misconduct is
committed, when a public servant dishonestly or
fraudulently misappropriates or otherwise converts for
his own use any property entrusted to him or any
property under his control as public servant or allows any
other person to do so.
Neutral Citation No. ( 2024:HHC:8531 )
XV. A criminal misconduct under the PC Act brings under
its fold the intentional enrichment of a public servant
himself, illicitly during the period of his office. Though
section 7 relates to offences of a public servant being
.
bribed and relates to the decision-making process,
section 13 is not limited to any specific decision-making
process or recommendation, but envisages the
misappropriation of property entrusted to or under the
control of the public servant. Such offence also brings
under its fold an action of a public servant when he
enriches himself illicitly during the period of his office.
Therefore, such an offence can be committed, without
there being any specific decision-making process or any
recommendation being made.
XVI. The legislature in its wisdom has not incorporated
such general offences, not specifically relatable to any
decision-making process or recommendation made and
therefore, in the considered opinion of this court, when
the allegation does not relate to an offence relatable to
any decision or any recommendation resulting in the
discharge of his official function or duties, rather it is a
general allegation that the officer had enriched himself
illicitly during the period of his office, there shall be no
protection of Section 17A."
23. It was held in Kishor Kumar v. State of Bihar, 2023 SCC
OnLine Patna 4587 that the purpose of enacting Section 17A of
the Act is to give protection to the public servant from malicious
and vexatious enquiry/investigation and likelihood of their
harassment. It does not apply to demand of bribe made by the
public servant to perform his duties. It was observed:
"31. Section 17A of the Act is applicable only when the
alleged offences are relatable to any recommendation
Neutral Citation No. ( 2024:HHC:8531 )
made or decision taken by a public servant, which seems
to be the main ingredient of this section.
32. If the intention of the legislature and object of the
.
statute is to cover every enquiry, inquiry or investigation
under this provision, then the words "where the alleged
offence is relatable to any recommendation made or
decision taken by the public servant" appear to be
unnecessary, since even without these words, it would
have conveyed the intention. Hence, it is manifestly
evident that the intention of the Parliament/Legislation is
not to insist on previous approval in relation to enquiry,
inquiry or investigation in relation to every offence/act
committed by the public servant, but only in relation to
acts/offence relatable to any recommendation or decision
taken by public servant in discharge of his official
functions or duties.
33. In the case of Rajib Ranjan v. R. Vijaykumar, (2015) 1
SCC 513, the Supreme Court has held that if a public
servant enters into a criminal conspiracy or indulges in
criminal misconduct, such misdemeanour on his part is
not to be treated as an act in the discharge of his official
duties and, therefore, provisions of Section 197 of the
Code will not be available to him.
34. In Devendra Kumar Singh (supra), it has been held that
when the act of a public servant is ex faie criminal or
constitutes an offence, a cognizable one, prior approval of
the Government/competent person would not, at all, be
necessary.
35. The protection, envisaged in Section 17A of the Act is
not a blanket protection and when the act of any
official/person is ex facie criminal or constitutes an
offence, and further any act which involves amassing
wealth disproportionate to his known source of income,
breach of trust and misappropriation of funds, garnishing
wealth by corrupt means being ex facie criminal, prior
approval of the Government/competent authority would
not be necessary.
Neutral Citation No. ( 2024:HHC:8531 )
36. In the case of Rajendra Prasad @ Dr Rajendra
Prasad (supra), a co-ordinate Bench of this Court has
eloquently discussed the purpose behind Section 17A of
the Act, holding that the purpose behind Section 17A of
.
the Act is to give protection to public servants from the
threat and ignominy of malicious and vexatious
inquiry/investigation and the likelihood of them being
put to trouble for taking honest decisions. Such public
servants who have the responsibility to take major
decisions must act fairly, fearlessly and impartially. Only
to prevent any vexatious criminal action against them,
without there being any foundational fact for the same, is
prohibited by providing this protective insulation under
Section 17A of the Act, in the form of a pre-requisite of
prior sanction before launching any investigation or
lodging the First Information Report. The protective
shield is for an honest public servant and not for a corrupt
one. There is a clear division between those acts which
constitute an offence and those acts, though done while
discharging the official duties of the public servant, but
which do not constitute an act done in the exercise of
official duties or functions which a public servant cannot
act.
37. To insulate an action of a holder of public office, if it is
in relation to any recommendation made by him or a
decision taken in discharge of his official function or
duties, such classificatory protection, which is a shield
against unnecessary prosecution of honest officers,
cannot be used as a sword to stifle prosecution for per-se
criminal offences which can never be in discharge of
official duty or connection with any recommendation
made by a high position holder of public office.
38. In view of the aforesaid discussion upon law and the
act of the petitioner, as per factual profile, can by no
stretch of imagination, be held to be relatable to
recommendation or decision taken by a public servant in
discharge of his official functions or duties.
Neutral Citation No. ( 2024:HHC:8531 )
39. In the First Information Report, there is a specific
allegation of demanding money, as a bribe, from the
informant for manipulating the investigation, in which
the petitioner, being the holder of a high post of Station
.
House Officer of a Police Station/Inspector of Police, after
pre-trap and post-trap memorandum, was found to be in
possession of illegal money allegedly received by him as
bribe.
40. Prima facie, on the basis of materials available on
record, it appears that the petitioner misused his official
position in garnishing wealth by corrupt means, which
could not be said to be done in the discharge of his official
duty. Where a criminal act is involved in the colour of
authority, it is for the personal benefit of the public
servant himself, then such act shall not be protected
under Section 17A of the Act.
41. Accordingly, I hold that the petitioner is not entitled
to any protection or no prior approval of the concerned
authority is required under Section 17A of the Act in the
facts and circumstances of the present case."
24. This Court also held in Abhishek Sharma (supra) that
prior approval for conducting the enquiry, inquiry or
investigation is required only when the offence is relatable to a
decision taken or recommendation made by the public servant
in the discharge of his official duties. It does not apply to the
demand and acceptance of bribe. It was observed:
"A reading of Section 17A makes it evident that prior
approval for conducting any enquiry, inquiry or
investigation against public servant is required only when
the offence alleged is relatable to a decision taken or
recommendation made by the public servant in discharge
of his official functions or duties with the rider that no
Neutral Citation No. ( 2024:HHC:8531 )
such approval shall be necessary for cases involving the
arrest of a person on the spot on the charge of accepting
or attempting to accept any undue advantage for himself
or any other person. Section 17A of the Act has to be
.
interpreted in a meaningful manner that bolsters the
fight against corruption and at the same time protects
honest officials."
25. In CBI v. Santosh Karnani, 2023 SCC OnLine SC 427 the
ACB police station Ahmedabad received an information that the
Income Tax Officers were demanding bribe. The ACB team went
to detain and arrest the officer but he escaped. It was contended
that the investigation could not have been conducted without
the compliance of Section 17A. This submission was not accepted
by the Hon'ble Supreme Court and it was held that a person
accused of demanding a bribe did not require any previous
approval of the Central Government as the accusation did not
relate to any recommendation made or decision taken by him in
his quasi-judicial or administrative capacity. It was observed:
"33. The contention that prior approval of investigation,
as mandated under Section 17A of the Prevention of
Corruption Act, has not been obtained and thus, the
proceedings initiated against Respondent No. 1 stand
vitiated, has no legal or factual basis. Section 17A merely
contemplates that police officers shall not conduct any
enquiry, inquiry or investigation into any offence alleged
to have been committed by a public servant where the
alleged offence is relatable to any recommendation made
or decision taken in the discharge of official functions or
Neutral Citation No. ( 2024:HHC:8531 )
duties, without the previous approval of the competent
authority. The first proviso to the section states that such
approval is not necessary in cases involving the arrest of
the person on the spot on the charges of accepting undue
.
advantage.
34. As may be seen, the first proviso to Section 17A refers
to cases wherein a public servant is charged with
acceptance of an undue advantage or attempt thereof. A
prior approval or sanction to investigate such an officer in
a trap case is likely to defeat the very purpose of trap and
the investigation, which is not the underlying intention of
the legislature. The investigation against Respondent No.
1, being an accused of demanding a bribe, did not require
any previous approval of the Central Government. That
apart, the accusation against Respondent No. 1 does not
revolve around any recommendations made or decisions
taken by him in his quasi-judicial or administrative
capacity." (emphasis supplied)
26. Kerala High Court held in T.A. Abdul Sathar v. State of
Kerala, 2022 SCC OnLine Ker 7438 that the demand of bribe by a
public official is not relatable to recommendation made or
decision taken in the discharge of official duties. It was
observed:
"19. The approval as provided in Section 17-A comes into
play only when the alleged offence is relatable to any
recommendation made or decision taken by a public
servant in discharge of his official functions or duties.
This view is fortified by the decision of this Court
in Shankara Bhat v. State of Kerala [2021 (5) KHC 248]
and Venugopal v. State of Kerala [(2021) 5 KLT 287].
20. In the present case, the allegation is that the petitioner
and the other accused accepted bribe from the relatives of the
defacto complainant. The acts alleged against the petitioner
Neutral Citation No. ( 2024:HHC:8531 )
are in no way relatable to any recommendation made or
decision taken by the petitioner in discharge of his official
functions and duties." (emphasis supplied)
.
27. A similar view was taken by the Madhya Pradesh
High Court in Baini Prasad Chansoriya v. State of M.P., 2022 SCC
OnLine MP 5991: ILR 2023 MP 703 wherein it was observed:
"6.3 It is pertinent to point out that Section 17-A is
attracted only when the offence alleged under the PC Act
relates to the Act of "recommendation made or decision
taken" but is not attracted when the offence relates to
demand or acceptance of bribe, taking of illegal
gratification or disproportionate assets etc. Since the
instant case involves allegations which allegedly arise
from recommendations made or decisions taken, the
provision of Section 17-A gets attracted herein."
28. The Rajasthan High Court took a different view in
Himanshu Yadav v. State of Rajasthan, 2022 SCC OnLine Raj 2960:
(2022) 1 RLW 485 and held that where the allegations of
demanding illegal gratification related to the decisions of the
petitioner, the enquiry or investigation requires the approval of
the authority. The attempt to arrest a person may not be illegal
but subsequent investigations are illegal. It was observed at page
490:
"25. Indisputably, the allegation of demanding illegal
gratification relates to the discharge of official duties of
the petitioner and no prior approval of the competent
authority has been obtained. As such, the proceedings or
the very attempt to arrest the petitioner on spot on the
Neutral Citation No. ( 2024:HHC:8531 )
charge of accepting the bribe (which has failed), may or
may not be illegal but the proceedings thereafter, further
investigation and lodging of FIR against the petitioner
without the approval of the competent authority is void
.
ab initio.
26. According to this Court both enquiry and
investigation are proscribed sans prior approval of the
competent authority. The embargo under section 17A
operates wherever the alleged offence is claimed to have
been committed in connection with the discharge of
official duties. The allegation of demand of bribe
definitely has a nexus with the work the petitioner was
supposed to do as a public servant, hence the provision of
section 17A of the Act of 1988 would create a roadblock in
the way of the investigating officer to proceed further."
29. Gujarat High Court followed this judgment in
Bhayabhai Gigabhai Sutreja v. State of Gujarat, 2020 SCC OnLine
Guj 2266 and held as under:
"14. As per the plain reading of Section 17(A) latest
amended, the preliminary inquiry or investigation is
sine-qua-none, further without previous approval, the
Investigating Officer cannot proceed with the matter.
Learned Senior Advocate Shree Panchal for the applicant
has placed reliance upon the judgment passed by the High
Court of Rajasthan at Jodhpur in S.B. Criminal Misc. (Pet)
No. 159/2018 in case of Kailash Chandra Agarwal v. State
of Rajasthan, wherein FIR was lodged on the basis of
private complaint and no approval of the competent
Government was taken before initiating the inquiry and
registering the formal FIR. Manifestly, the newly inserted
provision prohibits conducting of enquiry/inquiry or
investigation into any offence under this Act alleged to
have been committed by a public servant where the act
alleged is relatable to any recommendation made or
decision taken by such a public servant in discharge of
official functions or duties. Manifestly, the questioned
Neutral Citation No. ( 2024:HHC:8531 )
decisions in furtherance whereof, the land subject matter
of dispute was sold to and transferred in the name of the
applicants Kailash Chandra Agarwal and Nand Bihari,
were issued by the respective public servants concerned
.
i.e. the Land Record Inspector Chhotaram, the Patwari
Ramratan and the Tehsildar Tejmal Choudhary in
discharge of their official duties. Therefore, before
initiating any inquiry against the public servants under
the provisions of the P.C. Act, prior approval of the
Government was a sine-qua-non and the FIR could not
have been registered without such approval. As the public
servants cannot be prosecuted in this matter, registration
of the FIR by the Anti-Corruption Bureau against the
private individuals i.e. the applicants Kailash Chandra
Agarwal and Nand Bihari is also totally illegal and
amounts to a gross abuse of process of law."
30. Thus, there is a divergence of opinion regarding the
applicability of Section 17A. Only the High Courts of Rajasthan
and Gujarat have taken a view that the demand for bribes will
attract the provision of Section 17A of the Act, whereas other
High Courts have taken a view that Protection under Section 17A
would not be available for demand for bribes as it is not relatable
to the recommendations made or decision taken by a public
servant. With utmost respect, it is difficult to agree with the
view of the Rajasthan and Gujarat High Court as the demand for
a bribe cannot be related to the recommendation made or
decision taken by a public servant. The demand for bribes may
be a reason or consequence for making a decision or
Neutral Citation No. ( 2024:HHC:8531 )
recommendation but such a reason or consequence is for the
personal benefit of the public servant and is not relatable to the
.
official function.
31. In the present case it was submitted that as per the
prosecution, the petitioner had decided to purchase the PPE Kits
from Bioaide. The prosecution further asserted that the money
was demanded for the clearance of the bill related to the
purchase made by the petitioner. Hence, the requirement that
the offence alleged is relatable to any recommendation or
decision taken by the public servant is satisfied. It is difficult to
agree with this submission. The word relatable refers to an act
closely connected to the recommendation or the decision that
affects the recommendation or the decision and cannot refer to
any extraneous act that would not have any impact on the
recommendation or the decision. The demand for a bribe can
influence the decision in the sense that further orders can be
placed but that would not be in the discharge of the official
duties because it is no function of any public servant to demand
a bribe for doing any official act. A public servant is expected to
do the official act uninfluenced by any extraneous consideration
solely on the merits of the matter pending before him. The word
Neutral Citation No. ( 2024:HHC:8531 )
relatable cannot be so stretched to include everything that does
not have any relation to the decision or recommendation made
.
by the public servant.
32. As was pointed out by the Hon'ble Supreme Court, if
two interpretations are possible, the interpretation that
prevents corruption has to be preferred rather than the one that
encourages corruption. Even, if two interpretations are possible
namely (i) that the demand for a bribe is relatable to the
recommendation made or decision taken by the public servant
and (ii) that the demand for a bribe is not relatable to a
recommendation made or decision taken by the public servant,
the second interpretation has to be preferred because it will
protect an honest public servant and discourage the dishonest
public servant demanding bribe, whereas the first interpretation
will encourage the public servants to demand bribe with
impunity. Such an interpretation would defeat the very purpose
of the enactment of the Prevention of Corruption Act.
33. Therefore, with due respect, it is difficult to agree
with the judgments of the Rajasthan and Gujarat High Court that
the demand for a bribe would be covered under Section 17A of
the Prevention of Corruption Act and it is held that when the
Neutral Citation No. ( 2024:HHC:8531 )
demand for bribe is made for doing any official Act, the
protection under Section 17A will not apply to such a demand
.
because such a demand is not relatable to the discharge of the
official function of the public servant. It is pertinent to mention
here that Gauhati High Court had also differed from the views of
Rajasthan and Gujarat High Courts in Rounak (supra) and held:
XXIII. In Himangshu Yadav (supra), decided by the
Rajasthan High Court the fact of the case was that the
petitioner therein, who was a Village Development
Officer, demanded a sum of Rs. 7,000/- for clearing the
bill of the informant of Rs. 32,000/-, and in the aforesaid
factual backdrop it was held that allegation of demanding
illegal gratification relates to discharge of official duties.
Therefore, it cannot be said that a proposition was laid
down that in all cases, the approval under Section 17(A) of
the PC Act shall be required inasmuch as the allegation
made in the aforesaid case is relatable to a decision of
releasing a bill on payment of illegal gratification. That
being the position, such decision shall not help the
petitioner herein, in the given facts of the present case.
XXIV. In Yogesh Nayyar (supra), the high court of Madhya
Pradesh held in the given facts of the said case that
lodging of FIR in absence of approval is not barred under
section 17A of the PC, however, said provision prohibits
investigation by a police officer without approval. This
court is in respectful disagreement with such view, for the
reasons as discussed and recorded hereinabove.
34. The other cited judgments relate to the impact of the
violation of Section 17 A. Since it has been held that Section 17A
Neutral Citation No. ( 2024:HHC:8531 )
does not apply to the demand of a bribe; therefore, these judgments
will not assist the petitioner.
.
35. It was submitted that the State had filed another FIR after
taking the approval under Section 17A, which shows that Section 17A
applies to the demand of bribe. This submission cannot be accepted.
The interpretation of the statute is not based upon the acts done by
the parties but upon the terminology used by the Legislature.
Therefore, even if a sanction was taken by the State in another case,
that will not mean the demand of bribe is relatable to the
recommendation made or decision taken by public servant in
discharge of his official functions or duties.
36. Consequently, it is held that the protection under Section
17A will not apply to the present case and the enquiry and
investigation conducted by the police will not be vitiated.
37. Thus, the present petition fails and the same is dismissed.
38. The observations made herein after are confined to the
disposal of the present petition and will not be applicable,
whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
13th September, 2024
(Nikita)
