Kerala High Court
Venugopal V vs State Of Kerala on 8 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
CRL.MC NO. 3765 OF 2021
PETITIONER/S:
1 VENUGOPAL V
AGED 66 YEARS
S/O.VASUDEVAN NAIR, RESIDING AT VILANGOTTE HOUSE,
KANDANASSERY P.O., THRISSUR DISTRICT 680 102
2 ANTO THOMAS C.
AGED 46 YEARS
S/O.THOMAS, RESIDING AT CHEERAN HOUSE, PERAGAM
P.O., PERAGAM VILLAGE, CHAVAKKAD TALUK, THRISSUR
DISTRICT 680 506
3 P.SATHAR
AGED 62 YEARS
S/O.KAJA AVARASUKUTTY, PUTHUVEETTIL HOUSE,
PERAGAM P.O., THRISSUR 680 506, PERAGAM VILLAGE,
CHAVAKKAD TALUK, THRISSUR DISTRICT 680 506
4 K.P.UDAYAN
AGED 47 YEARS
S/O.SARASWATHY AMMA, KURUVANGAD PUTHAN VEETTIL
HOUSE, EAST NADA, GURUVAYUR,
THRISSUR DISTRICT 680 101
BY ADVS.
GEORGE POONTHOTTAM (SR.)
NISHA GEORGE
RESPONDENT/S:
1 STATE OF KERALA
REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM 682 031
2 THE DIRECTOR GENERAL
VIGILANCE AND ANTI CORRUPTION BUREAU, PMG, VIKAS
BHAVAN, P.O., OPPOSITE KSRTC DEPOT,
THIRUVANANTHAPURAM 695 033
SRI A RAJESH- SPL PP VACB
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.M.C.No.3765/2021
2
"CR"
R.NARAYANA PISHARADI, J
**********************
Crl.M.C.No.3765 of 2021
-------------------------------------
Dated this the 8th day of September, 2021
-------------------------------------------
ORDER
The petitioners are accused 1 to 4 in the case
registered as V.C.No.04/2021/TSR by the Deputy Superintendent
of Police, Vigilance and Anti-Corruption Bureau (VACB), Thrissur
for the offences punishable under Section 7 of the Prevention of
Corruption Act, 1988 (for short 'the Act') and under Sections
465, 471 and 120B of the Indian Penal Code.
2. The first accused was the Chairman and the second
accused was the Vice Chairman of the Guruvayur Urban
Co-operative Bank Limited (hereinafter referred to as 'the Bank')
during the year 2017. Accused 3 and 4 were members of the
Director Board of the Bank during that period.
3. The Bank had invited applications from eligible
candidates to fill up six posts of appraisers and five posts of
Crl.M.C.No.3765/2021
peons. The conducting of the written examination for selection
was entrusted with an outside agency by name "Global Trust,
Kottayam". The written examination was conducted on
12.11.2017. The short listed candidates were called for an
interview by the Bank. It is alleged that the answer papers of the
written examination, of those candidates who had given bribe
and from whom bribe was demanded, were manipulated to
ensure that they would secure high marks in the written
examination. It is alleged that specific instructions were given to
such candidates to fill up only answers fully known to them and
the answers to the questions left out by them were later filled up
with the help of the accused to ensure that they would get high
marks. It is alleged that the final list of selected candidates was
published on the same day of the interview and appointment
orders were given to them on the same day itself.
4. One Rajeev, who was a candidate and who did not get
selection, filed a complaint in the matter in the Court of the
Enquiry Commissioner and Special Judge, Thrissur. The Special
Court directed the Dy.S.P concerned to conduct a quick
Crl.M.C.No.3765/2021
verification and to submit a report. The Dy.S.P, after conducting
the preliminary enquiry, submitted a report before the Special
Court, stating that the enquiry did not reveal any irregularity or
malpractices which would attract an offence under the Act.
5. Rajeev, the de facto complainant, filed W.P.(C)
No.27091/2019 before this Court challenging the findings in the
preliminary enquiry report of the VACB. As per the judgment
dated 15.03.2021 in the above writ petition, this Court rejected
the preliminary enquiry report filed by the VACB and directed a
fresh preliminary enquiry to be conducted by another Dy.S.P.
The operative portion of the judgment of this Court in the above
writ petition reads as follows:
"Considering the entire facts, it is clear that the
impugned report in this case is not legally
sustainable. This Court has ample power to
interfere in appropriate cases, though invariably
this Court should not interfere into the discretion
yet to be exercised by the Special Judge.
However, in the peculiar situation arising in this
case, Ext.P3 report will stand rejected. The
second respondent shall direct another Dy.S.P to
conduct a preliminary enquiry, strictly confined to
the contours of a preliminary enquiry as laid
Crl.M.C.No.3765/2021
down by Supreme Court in Lalitha Kumari's case.
The officer shall refer to the observations made in
paras 4 to 11 of this judgment. Preliminary
enquiry shall be completed at the earliest, at any
rate within two months from the date of taking
charge by the officer. Writ Petition is allowed as
above".
(emphasis supplied)
6. In compliance with the judgment of this Court in the
above writ petition, a fresh preliminary enquiry was conducted by
the VACB. The report of the preliminary enquiry was submitted to
the second respondent, the Director of VACB, with a
recommendation for registration of FIR against the petitioners.
On the basis of the findings made in the second
preliminary enquiry report, Annexure-A1 FIR was registered
against the petitioners as per the direction given by the second
respondent.
7. This petition is filed by the accused under Section 482
of the Code of Criminal Procedure, 1973 (for short 'the Code') for
quashing Annexure-A1 F.I.R.
8. Heard Adv.Sri.George Poonthottam, learned senior
counsel who appeared for the petitioners and also Sri.A.Rajesh,
Crl.M.C.No.3765/2021
learned Public Prosecutor/Special Government Pleader
(Vigilance).
9. Learned senior counsel for the petitioners contended
that, this Court had arbitrarily exercised the jurisdiction under
Article 226 of the Constitution of India to quash the first
preliminary enquiry report, without leaving the matter to be
considered by the Special Court in the normal course. Learned
senior counsel also contended that, registration of Annexure-A1
F.I.R against the petitioners for an offence under Section 7 of the
Act and the consequent investigation into that offence alleged to
have been committed by them in the course of discharge of their
official duties, without the previous approval of the competent
authority under Section 17A of the Act, amount to clear violation
of the procedure established by law. Learned senior counsel
further contended that, in the absence of such approval under
Section 17A of the Act, continuation of the proceedings against
the petitioners pursuant to Annexure-A1 F.I.R, constitutes abuse
of the process of law and that the FIR is liable to be quashed.
Crl.M.C.No.3765/2021
10. Per contra, learned Public Prosecutor submitted that,
the petitioners cannot raise any contention in this petition
regarding the legality of the judgment of this Court in W.P.(C)
No.27091/2019. Learned Public Prosecutor contended that, the
offence under Section 7 of the Act allegedly committed by the
petitioners, does not relate to any decision or recommendation
made by them in discharge of their official functions or duties.
Therefore, learned Public Prosecutor would submit that, previous
approval of the competent authority as contemplated under
Section 17A of the Act was not required in this case for
registration of the FIR against the petitioners and conducting
investigation into that offence allegedly committed by them.
11. Section 17A was introduced in the Act by way of
amendment, as per Act 16 of 2018, with effect from 26.07.2018.
Section 17A of the Act reads as follows:
"17-A. Enquiry or Inquiry or investigation of
offences relatable to recommendations made
or decision taken by public servant in discharge
of official functions or duties.- No police officer
shall conduct any enquiry or inquiry or investigation
into any offence alleged to have been committed by
Crl.M.C.No.3765/2021
a public servant under this Act, where the alleged
offence is relatable to any recommendation made or
decision taken by such public servant in discharge of
his official functions or duties, without the previous
approval-
(a) in the case of a person who is or was
employed, at the time when the offence was alleged
to have been committed, in connection with the
affairs of the Union, of that Government;
(b) in the case of a person who is or was
employed, at the time when the offence was alleged
to have been committed, in connection with the
affairs of a State, of that Government;
(c) in the case of any other person, of the
authority competent to remove him from his office,
at the time when the offence was alleged to have
been committed:
Provided that no such approval shall be
necessary for cases involving arrest of a person on
the spot on the charge of accepting or attempting to
accept any undue advantage for himself or for any
other person:
Provided further that the concerned authority
shall convey its decision under this Section within a
period of three months, which may, for reasons to
be recorded in writing by such authority, be
extended by a further period of one month."
Crl.M.C.No.3765/2021
12. A close scrutiny of the provisions contained in Section
17A of the Act would reveal the following : (1) The bar under
Section 17A of the Act operates against a police officer (2) It
prohibits a police officer from conducting any enquiry or inquiry
or investigation, into any offence alleged to have been committed
by a public servant under the Act without the previous approval
of the prescribed authority (3) The bar under the provision
operates or applies only when the offence allegedly committed by
a public servant under the Act, relates to any recommendation
made or decision taken by such public servant in discharge of his
official functions or duties (4) The authority competent to grant
previous approval for enquiry or inquiry or investigation is the
Central Government in the case of a person employed in
connection with the affairs of the Union (5) The authority
competent to grant previous approval for enquiry or inquiry or
investigation is the State Government in the case of a person
employed in connection with the affairs of a State (6) The
authority competent to grant previous approval for enquiry or
inquiry or investigation in the case of any other person is the
Crl.M.C.No.3765/2021
authority competent to remove the public servant from his office
(7) The provision also applies in case of a retired public servant.
The previous approval envisaged under Section 17A of the Act is
necessary even if the public servant has ceased to hold his office
(8) Section 17A of the Act does not apply to cases involving
arrest of a person on the spot on the charge of accepting or
attempting to accept any undue advantage for himself or for any
other person (9) The time which shall be taken by the authority
concerned to convey its decision on granting of approval is three
months (10) The authority may, for reasons to be recorded in
writing, extend the above time by a further period of one month.
13. The crucial question to be decided in this petition is,
whether previous approval as contemplated under Section 17A of
the Act was necessary before registration of Annexure-A1 FIR
and commencement of investigation into the offence under
Section 7 of the Act allegedly committed by the petitioners.
14. Admittedly, the petitioners were public servants as
defined under Section 2(c) of the Act at the time when they
allegedly committed the offence under Section 7 of the Act.
Crl.M.C.No.3765/2021
Admittedly, the offence under Section 7 of the Act alleged to have
been committed by the petitioners was in relation to the
appointment of staff in the Bank. Admittedly, Annexure-A1 FIR
was registered against the petitioners without obtaining the
previous approval of the competent authority as envisaged under
Section 17A of the Act.
15. At this juncture, it is to be noted that, in the judgment
in W.P.(C) No.27091/2019, this Court had not given any specific
direction to the VACB to register FIR in case the second
preliminary enquiry revealed commission of any cognizable
offence under the Act. However, this Court had, in the above
judgment, referred to the decision of the Apex Court in Lalita
Kumari v. Government of Uttar Pradesh : (2014) 2 SCC 1
and considered the scope of preliminary enquiry. It was
thereafter this Court quashed the first preliminary enquiry report
and issued the direction to conduct a second preliminary enquiry.
The ultimate direction issued by this Court, after quashing the
first preliminary enquiry report, to conduct a fresh preliminary
enquiry, cannot be construed or considered in isolation of the
Crl.M.C.No.3765/2021
observations in the above judgment which precede the said
direction. Once a constitutional court passes an order authorizing
the investigating agency to conduct preliminary enquiry into a
matter, such agency is invested with the requisite power and
jurisdiction to pursue the proceeding to a logical culmination. A
direction to register FIR and to conduct investigation, in case the
second preliminary enquiry revealed commission of any
cognizable offence under the Act, is implicit in the judgment of
this Court in W.P(C) No.27091/2019.
16. As noticed earlier, the bar under Section 17A of the Act
operates against the police officer concerned. There is no bar
under Section 17A of the Act which prevents a court from passing
an order or issuing direction to conduct enquiry or investigation
into an offence under the Act.
17. When a constitutional court orders preliminary enquiry
or investigation, into an offence under the Act allegedly
committed by a public servant, is it necessary for the police
officer concerned to obtain previous approval of the competent
authority, as contemplated under Section 17A of the Act, to
Crl.M.C.No.3765/2021
conduct such enquiry or investigation?
18. At this juncture, the dictum laid down by the
Constitution Bench of the Supreme Court in the case of State of
West Bengal v. Committee for Protection of Democratic
Rights, West Bengal : (2010) 3 SCC 571, on consideration of
the impact and scope of Section 6 of the Delhi Special Police
Establishment Act, 1946 (for short 'the DSPE Act'), assumes
significance.
19. The issue for consideration before the Constitution
Bench in CPDR (supra) was, whether the High Court, in exercise
of its jurisdiction under Article 226 of the Constitution of India,
could direct the Central Bureau of Investigation (CBI),
established under the DSPE Act, to investigate into cognizable
offence, which is alleged to have taken place within the territorial
jurisdiction of a State, without the consent of the State
Government. Section 5 of the DSPE Act empowered the Central
Government to extend the powers and jurisdiction of the Special
Police Establishment to any area in a State. Section 6 of the
DSPE Act provided that, nothing contained in Section 5 shall be
Crl.M.C.No.3765/2021
deemed to enable any member of the Delhi Special Police
Establishment to exercise powers and jurisdiction in any area in a
State, without the consent of the Government of that State.
After noticing the scope and amplitude of Sections 5 and 6 of the
DSPE Act, the Constitution Bench answered the question as
follows:
"The power of the High Court under Article 226
of the Constitution cannot be taken away,
curtailed or diluted by Section 6 of the Special
Police Act. Irrespective of there being any
statutory provision acting as a restriction on the
powers of the courts, the restriction imposed by
Section 6 of the Special Police Act on the powers
of the Union, cannot be read as restriction on the
powers of the constitutional courts.......... In the
final analysis, our answer to the question
referred is that a direction by the High Court, in
exercise of its jurisdiction under Article 226 of
the Constitution, to the CBI to investigate a
cognizable offence alleged to have been
committed within the territory of a State without
the consent of that State will neither impinge
upon the federal structure of the Constitution nor
violate the doctrine of separation of power and
shall be valid in law".
Crl.M.C.No.3765/2021
20. The dictum laid down by the Constitution Bench in
CPDR (supra) indicates that, irrespective of there being any
statutory provision imposing any restriction on the power of a
police officer, when a Constitutional Court passes an order to
conduct enquiry or investigation into an offence under the Act,
the bar under Section 17A of the Act does not operate against
the police officer concerned.
21. The decision of a three Judge Bench of the Supreme
Court in Manohar Lal Sharma v. The Principle Secretary :
AIR 2014 SC 666 is also relevant in this context. The question
before the Apex Court in that case was, whether the approval of
the Central Government was necessary under Section 6A of the
DSPE Act in a matter where the inquiry/investigation into the
crime under the Prevention of Corruption Act, was being
monitored by the Court.
22. Section 6A of the DSPE Act then read as under:
"Section 6A -Approval of Central Government to
conduct inquiry or investigation. - (1) The Delhi
Special Police Establishment shall not conduct
any inquiry or investigation into any offence
alleged to have been committed under the
Crl.M.C.No.3765/2021
Prevention of Corruption Act, 1988 except with
the previous approval of the Central Government
where such allegation relates to - (a) the
employees of the Central Government of the
level of Joint Secretary and above; and (b) such
officers as are appointed by the Central
Government in corporations established by or
under any Central Act, Government companies,
societies and local authorities owned or
controlled by that Government.
(2) Notwithstanding anything contained in sub-
section (1), no such approval shall be necessary
for cases involving arrest of a person on the spot
on the charge of accepting or attempting to
accept any gratification other than legal
remuneration referred to in clause (c) of the
Explanation to Section 7 of the Prevention of
Corruption Act, 1988."
23. Section 6A of the DSPE Act, thus, provided for obtaining
previous approval of the Central Government to conduct inquiry
or investigation where the allegations of commission of an
offence under the PC Act related to the employees of the Central
Government of the level of the Joint Secretary and above.
24. In Manohar Lal Sharma(supra), the Apex Court held
that the principle of law laid down in CPDR (supra) in respect of
Crl.M.C.No.3765/2021
Section 6 of the DSPE Act can be extended while considering
applicability of Section 6A of that Act to the court monitored
investigations. It was held as follows:
"If Section 6 necessitates the prior sanction of
the State Government before investigation is
carried out by the CBI in terms of that provision
and the principle of law laid down by the
Constitution Bench of this Court is that the
constitutional courts are empowered to direct
the investigation of a case by CBI and in such
cases no prior sanction of the State Government
is necessary under Section 6 of the DSPE Act,
there is no reason why such principle is not
extended in holding that the approval of the
Central Government is not necessary under
Section 6A of the DSPE Act in a matter where
the inquiry/ investigation into the crime under
the PC Act is being monitored by the Court. It is
the duty of this Court that anti-corruption laws
are interpreted and worked out in such a fashion
that helps in minimizing abuse of public office
for private gain".
Ultimately, the Apex Court held that the approval of the Central
Government is not necessary under Section 6A of the DSPE Act in
a matter where inquiry/investigation into the crime under the PC
Crl.M.C.No.3765/2021
Act is being monitored by the Supreme Court and in cases which
are directed by the Court to be registered and the
inquiry/investigation thereon is actually being monitored by it.
25. True, the principle laid down by the Apex Court in
Manohar Lal Sharma (supra) is with regard to the investigation
monitored by that Court. However, the Apex Court has held in
this decision that the principle of law laid down in respect of
Section 6 of the DSPE Act can be extended while considering
applicability of Section 6A of that Act to the court monitored
investigations. The principle applies to investigation directed by
constitutional courts. Once a constitutional court examines and
satisfies itself about the necessity or desirability of an enquiry or
investigation into an offence under the Act allegedly committed
by a public servant, the requirement of previous approval by the
competent authority is substituted by a more judicious
determination. Once a constitutional court finds that such enquiry
or investigation is required, approval by another authority for
such enquiry or investigation cannot be permitted so as to render
the decision of the constitutional court nugatory. The competent
Crl.M.C.No.3765/2021
authority cannot be allowed to sit in appeal over the decision
made by a constitutional court.
26. Subsequently, in Subramanian Swamy v. Union of
India : AIR 2014 SC 2140, the Constitution Bench of the
Supreme Court held that Section 6A(1) of the DSPE Act, which
required approval of the Central Government to conduct any
inquiry or investigation into any offence alleged to have been
committed under the PC Act, 1988 where such allegation related
to (a) the employees of the Central Government of the level of
Joint Secretary and above and (b) such officers as are appointed
by the Central Government in corporations established by or
under any Central Act, government companies, societies and
local authorities owned or controlled by the Government, is
invalid and violative of Article 14 of the Constitution.
27. The purpose behind the enactment of Section 17A of the
Act is to give protection to public servants from the threat and
ignominy of malicious and vexatious inquiry/investigation and
likelihood of harassment for taking honest decisions. This
provision aims to ensure that those public servants who have the
Crl.M.C.No.3765/2021
responsibility to take vital decisions are not subjected to frivolous
complaints and to make available a screening mechanism. This
purpose is fully achieved when a constitutional court takes
decision with regard to the inquiry/investigation into an offence
allegedly committed by a public servant.
28. The aforesaid view is supported by the recent decision
of the Bombay High Court in Anil Vasantrao Deshmukh v.
State of Maharashtra (2021 SCC OnLine Bom 1192). It was
a case in which a Division Bench of the Bombay High Court had
directed preliminary enquiry by the CBI into the corrupt practices
allegedly committed by the former Home Minister of the State of
Maharashtra. That order directing preliminary enquiry was upheld
by the Supreme Court by order dated 08.04.2021. The CBI then
conducted preliminary enquiry as ordered by the Bombay High
Court. On the basis of the findings in the preliminary enquiry, the
CBI registered a case against the former Home Minister of the
State of Maharashtra under Section 7 of the Act and Section
120B of the IPC. No previous approval of the competent authority
was obtained by the CBI for conducting investigation of the case.
Crl.M.C.No.3765/2021
One among the several grounds raised in the writ petition filed,
challenging the registration of the case by the CBI, was that no
previous approval as contemplated under Section 17A of the Act
was obtained by the CBI for registration of the FIR and
conducting the investigation. The Bombay High Court held that
the restriction under Section 17A of the Act with regard to the
enquiry/investigation operates against the investigating agency
and not against the Court and once a constitutional court
examines and satisfies itself about the necessity and desirability
of the enquiry or investigation, previous approval of the
competent authority envisaged under Section 17A of the Act is
not necessary to conduct such enquiry/investigation.
29. The Special Leave Petition, SLP (Crl) No.5821/2021,
filed against the aforesaid decision of the Bombay High Court was
dismissed by the Supreme Court by order dated 18.08.2021 by
observing that there was no error in the impugned judgment.
30. Learned senior counsel for the petitioners pointed out
that, it was on 30.05.2018 that the Special Court ordered to
conduct preliminary enquiry on the complaint filed against the
Crl.M.C.No.3765/2021
accused in that court and at that time, Section 17A of the Act
was not in existence and therefore, no previous approval of the
authority concerned was necessary to conduct the preliminary
enquiry. However, when this Court set aside the first preliminary
enquiry report and ordered to conduct fresh preliminary enquiry,
Section 17A of the Act had come into force. Learned senior
counsel also pointed out that it was on 24.06.2021 that
Annexure-A1 F.I.R was registered against the petitioners.
Learned senior counsel also invited the attention of this Court to
the decision in Ramesh v. C.B.I [2020 (4) KHC 220: 2020 (4)
KLT 351] in which this Court considered whether the
amendments made to the Act in the year 2018 have prospective
or retrospective effect.
31. In Ramesh (supra), this Court has observed as follows:
"Yet another contention set up by the petitioners
was that in the light of Section 17A of the amended
Act, the investigation followed by prosecution
without prior approval was non est and liable to be
quashed. As indicated above, there is nothing in the
Statute to indicate that it was retrospective. Section
17A prohibits any enquiry or inquiry or investigation
into any offence, without the approval of the
Crl.M.C.No.3765/2021
authorities mentioned in Section 17A alleged to
have been committed by a public servant under the
Act, where the alleged offence is relatable to any
recommendation made or decision taken by such
public servant in discharge of his official functions
or duties. The approval as contemplated under the
Act, is basically to protect honest and upright
officers and to insulate them against unnecessary
victimization or harassment consequent to taking of
administrative decisions. It is also intended to
embolden upright and honest officers in taking
independent decision in public interest. Essentially,
the purpose of the Prevention of Corruption Act is
to eradicate corruption in administration and to
punish corrupt officers. It also has to strengthen
the vigilance wing of the Government empowered
to investigate corruption in administrative set up.
Hence no provision of the Statute, can be
interpreted to dilute the object of the Act, and
which may have the effect of weakening the powers
of investigation agencies entrusted with such task.
If the Amendment is held to be retrospective,
several cases pending trial in which investigation
commenced prior to amendment which are in the
various stages of trial or investigation will be
prejudicially affected. All those cases will be bad for
absence of prior approval under Section 17A of the
Amended Act. Such an interpretation cannot be
Crl.M.C.No.3765/2021
given in the absence of any provision explicitly or
impliedly indicating retrospectivity".
Thereafter, this Court concluded and held as follows:
"Hence, the Prevention of Corruption (Amendment)
Act, 2018 has to be held to be prospective and has
no application to cases registered prior to
amendment and pending under various stages of
investigation and to cases in which investigation has
been completed and are pending trial".
(emphasis supplied)
32. The contention of the learned senior counsel appears to
be that, though the complaint against the petitioners was filed in
the competent court before the amendment of the Act, the
registration of the FIR was subsequent to the amendment and
therefore, prior approval of the competent authority was required
for registration of the FIR and conducting investigation.
33. At this juncture, the decision of the Apex Court in
Yashwant Sinha v. C.B.I : (2020) 2 SCC 338 has to be taken
note of. In this decision, the Supreme Court considered the
importance of the provision contained in Section 17A of the Act
and it was observed as follows:
"In terms of Section 17A, no police officer is
permitted to conduct any enquiry or inquiry or
Crl.M.C.No.3765/2021
conduct investigation into any offence done by a
public servant where the offence alleged is
relatable to any recommendation made or decision
taken by the public servant in discharge of his
public functions without previous approval, inter
alia, of the authority competent to remove the
public servant from his office at the time when the
offence was alleged to have been committed. In
respect of the public servant, who is involved in
this case, it is clause (c), which is applicable.
Unless, therefore, there is previous approval, there
could be neither inquiry or enquiry or investigation.
It is in this context apposite to notice that the
complaint, which has been filed by the petitioners
in Writ Petition (Criminal) No. 298 of 2018, moved
before the first respondent CBI, is done after
Section 17A was inserted. The complaint is dated
4.10.2018. Para 5 sets out the relief which is
sought in the complaint which is to register an FIR
under various provisions. ..... the petitioners have
filed the complaint fully knowing that Section 17A
constituted a bar to any inquiry or enquiry or
investigation unless there was previous approval.
In fact, a request is made to at least take the first
step of seeking permission under Section 17A of
the 2018 Act. Writ Petition (Criminal) No. 298 of
2018 was filed on 24.10.2018 and the complaint is
based on non-registration of the FIR. There is no
Crl.M.C.No.3765/2021
challenge to Section 17A. Under the law, as it
stood, both on the date of filing the petition and
even as of today, Section 17A continues to be on
the statute book and it constitutes a bar to any
inquiry or enquiry or investigation. The petitioners
themselves, in the complaint, request to seek
approval in terms of Section 17A but when it
comes to the relief sought in the writ petition,
there was no relief claimed in this behalf. Even
proceeding on the basis that on petitioners'
complaint, an FIR must be registered as it purports
to disclose cognizable offences and the Court must
so direct, will it not be a futile exercise having
regard to Section 17A. I am, therefore, of the view
that though otherwise the petitioners in Writ
Petition (Criminal) No. 298 of 2018 may have
made out a case, having regard to the law actually
laid down in Lalita Kumari [Lalita kumari v. State of
U.P : (2014) 2 SCC 1] and more importantly,
Section 17A of the Prevention of Corruption Act,in
a review petition, the petitioners cannot succeed.
However, it is my view that the judgment sought to
be reviewed, would not stand in the way of the first
respondent in Writ Petition (Criminal) No. 298 of
2018 from taking action on Ext.P-1, complaint in
accordance with law and subject to first respondent
obtaining previous approval under Section 17A of
the Prevention of Corruption Act."
Crl.M.C.No.3765/2021
34. The above observations of the Supreme Court in
Yashwant Sinha (supra) constitute authority for the proposition
that, in respect of a complaint filed or information given to a
police officer, after the insertion of Section 17A in the Act,
regarding commission of an offence committed by a public
servant under the Act and which relates to any recommendation
made or decision taken by such public servant in discharge of his
official functions or duties, unless there is previous approval of
the authority concerned, the police officer cannot conduct any
enquiry or investigation into such offence.
35. As far as the present case is concerned, the complaint
against the petitioners was filed in the competent court and the
first preliminary enquiry was ordered by that court and it was
commenced before the amendment of the Act. The various
proceedings or steps taken on the basis of that complaint,
including the second preliminary enquiry conducted as per the
order passed by this Court, can only be treated as a continuous
and whole process. The second preliminary enquiry conducted
and the registration of the FIR against the petitioners can only be
Crl.M.C.No.3765/2021
treated as a continuation of the proceedings which commenced
on the filing of the complaint in the competent court long before
the introduction of Section 17A in the Act.
36. The embargo under Section 17A of the Act applies only
to such enquiry or investigation which is initiated after the
introduction of that provision in the statute. The legislative intent
is certainly not to set the clock back to invalidate investigation or
enquiry which was commenced on the basis of a complaint which
was filed prior to the coming into force of that provision.
37. Of course, this Court cannot and does not ignore the
observation made in Yashwant Sinha (supra) that "even
proceeding on the basis that on petitioners' complaint, an FIR
must be registered as it purports to disclose cognizable offences
and the Court must so direct, will it not be a futile exercise
having regard to Section 17A". But, as already noticed, the
complaint which was the subject matter of discussion in
Yashwant Sinha (supra) was one filed after the introduction of
Section 17A in the Act. The petitioners in that case had not
sought any relief in the writ petition with regard to prior approval
Crl.M.C.No.3765/2021
under Section 17A of the Act. As far as the present case is
concerned, the complaint had been filed in the competent court
before the the introduction of Section 17A in the Act. Therefore,
it was not necessary for the writ petitioner in
W.P.(C) No.27091/2019, the de facto complainant, to seek any
such relief in that writ petition or for this Court to pass any order
in that regard.
38. The issue involved can be considered also from another
angle. The requirement of seeking previous approval
pre-supposes that the offence under the Act allegedly committed
by the public servant is relatable to any recommendation made
or decision taken by him in discharge of his official functions or
duties.
39. In Dr. Subramanian Swamy v. Dr. Manmohan
Singh, (2012) 3 SCC 64 : AIR 2012 SC 1185, it was observed
as follows:
"Today, corruption in our country not only poses a
grave danger to the concept of constitutional
governance, it also threatens the very foundation
of Indian democracy and the Rule of Law. The
magnitude of corruption in our public life is
Crl.M.C.No.3765/2021
incompatible with the concept of a socialist,
secular democratic republic. It cannot be disputed
that where corruption begins all rights end.
Corruption devalues human rights, chokes
development and undermines justice, liberty,
equality, fraternity which are the core values in
our preambular vision. Therefore, the duty of the
Court is that any anti-corruption law has to be
interpreted and worked out in such a fashion as to
strengthen the fight against corruption. That is to
say in a situation where two constructions are
eminently reasonable, the Court has to accept the
one that seeks to eradicate corruption to the one
which seeks to perpetuate it. .... These protections
are not available to other citizens. Public servants
are treated as a special class of persons enjoying
the said protection so that they can perform their
duties without fear and favour and without threats
of malicious prosecution. However, the said
protection against malicious prosecution which
was extended in public interest cannot become a
shield to protect corrupt officials. These provisions
being exceptions to the equality provision of
Article 14 are analogous to provisions of protective
discrimination and these protections must be
construed very narrowly. These procedural
provisions relating to sanction must be construed
in such a manner as to advance the causes of
Crl.M.C.No.3765/2021
honesty and justice and good governance as
opposed to escalation of corruption."
(emphasis supplied)
40. As held in Dr. Subramanian Swamy (supra), a
provision like Section 17A in an anti-corruption law has to be
interpreted in such a fashion as to strengthen the fight against
corruption. Where two constructions are eminently reasonable,
the Court has to accept the one that seeks to eradicate
corruption than the one which seeks to perpetuate it.
41. In Parkash Singh Badal v. State of Punjab: AIR
2007 SC 1274, it has been held as follows:
"The principle of immunity protects all acts which
the public servant has to perform in the exercise
of the functions of the Government. The purpose
for which they are performed protects these acts
from criminal prosecution. However, there is an
exception. Where a criminal act is performed
under the colour of authority but which in reality
is for the public servant's own pleasure or benefit
then such acts shall not be protected under the
doctrine of State immunity".
Crl.M.C.No.3765/2021
42. In Devender Kumar v. Central Bureau of
Investigation, 2019 (1) Crimes 726, the Delhi High Court has
observed as follows:
"Section 17A as it reads and the legislative
intent in its enactment can only be to protect
public servants in the bonafide discharge of
official functions or duties. However, when the
act of a public servant is ex-facie criminal or
constitutes an offence, prior approval of the
Government would not be necessary".
43. In T.O.Sooraj v. State of Kerala : 2021 SCC OnLine
Ker 2896, this Court has held as follows:
"The expression "discharge of his official
functions or duties" in Section 17A of the Act
reflects the legislative intent that the protection
envisaged is not a blanket protection. The
purpose is to protect an honest and responsible
public servant if the recommendation made or
decision taken by him is in discharge of his
official functions or duties. As a necessary
corollary, previous approval is required only if
the recommendation made or decision taken is
directly concerned with the official functions or
duties of the public servant. When a
recommendation or decision is made by a public
Crl.M.C.No.3765/2021
servant, which is not directly and reasonably
connected with his official functions or duties, he
is not entitled to get the protection under
Section 17A of the Act".
44. In the present case, the offence alleged against the
petitioners is under Section 7 of the Act, as it stood before
amendment by Act 16 of 2018 (the offensive act was allegedly
committed in the year 2017), which penalises the act of a public
servant, accepting or attempting to obtain any gratification other
than legal remuneration as a motive or reward for doing or
forbearing to show, in the exercise of his official functions, favour
or disfavour to any person or for rendering any service or
disservice to any person. The specific allegation against the
petitioners in this case is that they demanded bribe from the
relatives of certain candidates for giving the candidates
appointment in the Bank. Such an act cannot be considered as an
act which has reasonable connection with the discharge of the
official duties or functions of the petitioners.
45. In H.H.B.Gill v. The King : AIR 1948 PC 128, it has
been observed as follows:
Crl.M.C.No.3765/2021
"A public servant can only be said to act or to
purport to act in the discharge of his official duty, if
his act is such as to lie within the scope of his
official duty. Thus a Judge neither acts nor purports
to act as a Judge in receiving a bribe, though the
judgment which he delivers may be such an act :
nor does a government medical officer act or
purport to act as a public servant in picking the
pocket of a patient whom he is examining, though
the examination itself may be such an act. The test
may well be whether the public servant, if
challenged, can reasonably claim that, what he
does, he does in virtue of his office".
46. Accepting bribe or making attempt to obtain bribe
cannot be considered as an act done by the petitioners in
discharge of their official functions or duties. Though the offence
allegedly committed by the petitioners was in relation to
appointment of staff in the Bank, accepting bribe or making
demand for bribe for such appointment, cannot be considered as
an act which is directly related to any decision or
recommendation made by the petitioners in discharge of their
official duties or functions. The act, which constitutes the offence
under the Act, which was allegedly committed by the petitioners,
Crl.M.C.No.3765/2021
had no reasonable connection with their official functions or
duties. Therefore, Section 17A of the Act has no application to
the facts of the case.
47. The discussion above leads to the following conclusions.
The bar under Section 17A of the Act with regard to conducting
enquiry/investigation operates against the police officer or the
investigating agency concerned and it does not create any fetter
on the power of a constitutional court to order preliminary
enquiry or investigation into an offence under the Act. Once a
constitutional court examines and satisfies itself about the
necessity or desirability of an enquiry or investigation into an
offence under the Act and passes an order to conduct enquiry or
investigation, the police officer concerned is not obliged to obtain
previous approval of the competent authority, as envisaged under
Section 17A of the Act, to conduct such enquiry or investigation.
48. Even otherwise, as far as the present case is concerned,
for two reasons, previous approval of the competent authority
under Section 17A of the Act was not necessary for registration
of Annexure-A1 FIR and the investigation pursuant to it. In the
Crl.M.C.No.3765/2021
first place, the complaint was filed in the competent court before
the introduction of Section 17A in the Act and therefore, the said
provision has no application to the proceedings commenced on
the basis of that complaint. In the second place, accepting bribe
or making attempt to obtain bribe, the act allegedly committed
by the the petitioners, cannot be considered as an act done by
them in discharge of their official functions or duties. Such act
has no reasonable and direct connection with their official
functions or duties.
49. In the light of the conclusions above, the petition is
liable to be dismissed.
50. After conclusion of the arguments in the case, learned
senior counsel for the petitioners had brought to the notice of
this Court the interim order passed by the Division Bench of this
Court in the appeal W.A.No.1078/2021 filed by the Bank against
the judgment in W.P.(C) No.27091/2019. The legality and validity
of the judgment in W.P.(C) No.27091/2019 are now under
challenge before the Division Bench in the above appeal. It is
made clear that any observation made in this order does not in
Crl.M.C.No.3765/2021
any way touch upon the correctness or legality of the judgment
of this Court in the abovementioned writ petition.
Consequently, the petition is dismissed.
(sd/-) R.NARAYANA PISHARADI, JUDGE
jsr
Crl.M.C.No.3765/2021
APPENDIX OF CRL.MC 3765/2021
PETITIONER'S ANNEXURE:
Annexure A1 CERTIFIED COPY OF THE FIR IN CRIME
NO.4/2021/TSR OF VIGILANCE AND ANTI-
CORRUPTION BUREAU, THRISSUR, ON THE
FILES OF THE HON'BLE COURT OF ENQUIRY
COMMISSIONER AND SPECIAL JUDGE
(VIGILANCE) THRISSUR
RESPONDENTS' ANNEXURES:
NIL
TRUE COPY
PS TO JUDGE
