Rajesh Kumar vs State Of Rajasthan
2022 Latest Caselaw 2766 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Criminal Misc (Pet.) No. 427/2022

Rajesh Kumar S/o Sh. Ram Kumar Singh, Aged About 44 Years,

B/c Jat, R/o Village Sonasar, P.S. Sadar, Dist. Jhunjhunu, at

present posted as Inspector, Sri Ganganagar, H.Q. Kota City

Police Line (Raj.)

----Petitioner Versus

1. State of Rajasthan, through PP

2. Hardeep Singh S/o Lt. Sh. Uttam Singh, B/c Sikh, R/o

126 Lal Quarter, Govind Nagar, Kanpur, P.S. Govind Nagar,

Kanpur, U.P.

----Respondents

For Petitioner(s) : Mr. Rajesh Joshi, Sr. Advocate assisted by Mr. Vikram Singh Rajpurohit (through VC)

For Respondent(s) : Mr. Mahipal Bishnoi, PP

HON'BLE MR. JUSTICE VIJAY BISHNOI

Judgment / Order

18/02/2022

This criminal misc. petition under Section 482 CrPC has

been preferred on behalf of petitioner seeking quashing of

FIR No.245/2020 lodged at District ACB, Jodhpur, Police

Station ACB, CPS, Jaipur for the offence under Section 7 of

(2 of 22) [CRLMP-427/2022]

the Prevention of Corruption (Amended) Act 2018 (for short

'the PC Act') and Section 120-B IPC.

Brief facts of the case are that the petitioner was posted

as SHO of Police Station Jawahar Nagar, Distt. Sri

Ganganagar and he was also the Investigating Officer of the

FIR No.224/2020 lodged at Police Station Sadar, Distt. Sri

Ganganagar for the offence under Section 8/20 of the NDPS

Act.

The respondent No.2 has filed a complaint on

14.10.2020 before the Addl. S.P., Anti Corruption Bureau,

Jodhpur alleging therein that he is the resident of Kanpur

(U.P.) and running a partnership pharma shop there along

with his nephew Pawan Kumar Arora. It is stated in the

complaint that on 18.9.2020, two persons approached

complainant's nephew in his shop and introduced themselves

as police personnel posted at Police Station Jawahar Nagar,

Distt. Sri Ganganagar, Rajasthan; one of them has introduced

himself as Naresh Meena, constable, whereas another one

has introduced himself as Sohan Lal, ASI. Both of them asked

complainant's nephew that they want to procure some

information regarding drugs and, thereafter, they took his

nephew to a hotel viz. Gagan Plaza in Kanpur and from there,

they asked Pawan Kumar Arora to telephone the complainant

to procure some information regarding the drugs. It is further

alleged that those two persons had threatened the

complainant that if he will not come to the hotel, they will

(3 of 22) [CRLMP-427/2022]

take his nephew Pawan Kumar Arora along with them to Sri

Ganganagar. It is also stated that the complainant

immediately reached at the hotel Gagan Plaza, where Naresh

Meena, constable and Sohan Lal, ASI asked him to give

information regarding drugs, which he has already supplied,

thereafter, Naresh Meena, constable reached to his shop

along with his nephew while leaving the complainant and

Sohan Lal, ASI in the hotel. Thereafter, complainant's nephew

informed him on telephone that he has supplied the

information regarding medicines to Naresh Meena, constable,

but he is not satisfied with the same and is taking him to

hotel Galaxy Plaza, Mal Road, Kanpur, then, Sohan Lal, ASI

took the complainant to the said hotel, there, he asked

Naresh Meena, constable about the notice, however, he

refused to show the notice and told that since we are not

satisfied with the information supplied by him, we will take

your nephew to Sri Ganganagar for interrogation. The

complainant has further alleged that he bagged both of them,

then, Naresh Meena, constable bring out two copies of the

notice signed by Rajesh Kumar, Police Inspector (present

petitioner). It is further alleged that both Naresh Meena,

constable and Sohan Lal, ASI harassed the complainant and

his nephew in the hotel up to late night and ultimately Naresh

Meena, constable said the complainant that if he will give

rupees fifteen lakh to them, they will leave his nephew. It is

further alleged that Naresh Meena, constable has claimed

(4 of 22) [CRLMP-427/2022]

that he had already talked to the CI and Dy.S.P. and said that

out of rupees fifteen lakh, rupees two lakh fifty thousand

each are for him and Sohan Lal, ASI, whereas rupees ten lakh

are to be given to CI and Dy.S.P. It is alleged by the

complainant that Naresh Meena, constable accompanied him

from hotel to his house, where rupees fifteen lakh were

delivered to him and then both of them left Kanpur. It is also

alleged by the complainant that thereafter on 25.9.2020,

again Naresh Meena, constable came to his house in Kanpur

and informed that since Dy.S.P. is not satisfied with the

information supplied by him, his nephew Pawan Kumar Arora

is required to go to Sri Ganganagar. Naresh Meena, constable

has also said the complainant that if he want to save his

nephew, then, he has to give rupees twenty five lakh more,

then complainant begged Naresh Meena, constable and asked

him that at present he does not have that much of money,

then Naresh Meena, constable told that if he will give rupees

one lakh to him then he will provide some more time up to

12.10.2020 to give rupees twenty five lakh. It is also stated

by the complainant that as he was apprehensive that his

nephew Pawan Kumar Arora would be arrested, he gave

rupees one lakh to Naresh Meena, constable, who in turn has

given him a photo stat of the notice, said to have been signed

by Rajesh Kumar, Police Inspector (present petitioner).

The complainant-respondent No.2, in his complaint, has

stated that as he does not want to give bribe of rupees

(5 of 22) [CRLMP-427/2022]

twenty five lakh to the petitioner, therefore, he is making this

complaint.

On receiving the complaint, the ACB has laid a trap and

caught Naresh Meena, constable red-handed on 26.10.2020

while receiving rupees ten lakh as bribe in a hotel at Jaipur.

At the time of trap proceedings, Naresh Meena, constable

informed the ACB that he is taking bribe under the

instructions of the present petitioner and thereafter he sent a

message on Whatsapp informing the petitioner that the

complainant is paying rupees ten lakh instead of rupees

twenty five lakh as demanded. The petitioner then

telephoned constable Naresh Meena and asked him to come

to Sri Ganganagar while saying that we will see it later.

After completion of the trap proceedings, the ACB has

registered the impugned FIR and after obtaining prosecution

sanction against Naresh Meena, constable has filed charge-

sheet against him, however, investigation against the

petitioner as well as one Sohan Lal, ASI is pending under

Section 173(8) CrPC.

Learned counsel for the petitioner while challenging the

impugned FIR has argued that as per Section 17A of the PC

Act, the action of the ACB of registering the impugned FIR is

absolutely illegal and without jurisdiction because no previous

approval from the appropriate government has been obtained

before registering the impugned FIR.

(6 of 22) [CRLMP-427/2022]

Learned counsel for the petitioner has placed reliance on

the decision of the Hon'ble Apex Court rendered in

Yashwant Sinha and Ors. Vs. Central Bureau of

Investigation and Ors., reported in (2020) 2 SCC 338.

Learned counsel for the petitioner has also placed reliance on

the decision of this Court passed in SB Civil Writ Petition

No.17545/2021 - Himanshu Yadav Vs. State of

Rajasthan & Ors. and argued that the impugned FIR is

liable to be quashed.

Learned counsel for the petitioner has further argued

that from a bare reading of the impugned FIR, it is clear that

there is no demand on the part of the petitioner. It is

submitted that the complainant, in his entire complaint, has

no-where stated that the petitioner had ever met him or

demanded money or bribe. It is further argued that the

demand is sine qua non for registration of case under Section

7 of the PC Act and if there is no demand, the action of the

ACB of registering the impugned FIR is illegal. In support of

the above contention, learned counsel for the petitioner has

placed reliance on the judgment of Hon'ble Apex Court in the

case of N. Vijaya Kumar Vs. State of T.N., reported in

(2021) 3 SCC 687.

The last argument made by learned counsel for the

petitioner is that the I.O. after thorough investigation has

submitted its report to the effect that no case is made out

against the petitioner, however, the Addl. Director of Police,

(7 of 22) [CRLMP-427/2022]

Anti Corruption Bureau despite having the report of the IO

has instructed him to file charge-sheet against the petitioner.

Learned counsel for the petitioner has submitted that as per

Section 170 CrPC, when IO/SHO has not found sufficient

evidence against the petitioner, then the Addl. Director, Anti

Corruption Bureau has no jurisdiction to direct the IO/SHO to

file charge-sheet against the petitioner. In support of the

above argument, learned counsel for the petitioner has

placed reliance on the decision of Hon'ble Apex Court

rendered in the case of M.C. Mehta Vs. Union of India

(UOI) and Ors., reported in (2007) 1 SCC 110.

No other argument is raised on behalf of the petitioner.

Lastly, it is prayed that this criminal misc. petition may

kindly be allowed and the impugned FIR be quashed.

Per contra, learned Public Prosecutor has vehemently

opposed this criminal misc. petition.

Heard learned counsel for the parties.

To deal with the argument of learned counsel for the

petitioner in respect of Section 17A of the PC Act, it would be

appropriate to quote the same, which reads as under :

Section 17A of the PC Act reads as under :

"17A. 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 a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken

(8 of 22) [CRLMP-427/2022]

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."

To my understanding, as per Section 17A of the PC Act,

previous approval is required in relation to enquiry or inquiry

or investigation into an 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 public servant in discharge of his official

functions and duties" but no previous approval is required in

relation to an offence alleged to have been committed by a

public servant not relatable to any recommendation made or

decision taken by public servant in discharge of his official

functions and duties.

(9 of 22) [CRLMP-427/2022]

From a bare reading of the impugned FIR, it appears

that allegation against the petitioner is to the effect that at

the instance of petitioner, co-accused Naresh Meena,

constable pressurized the complainant and his nephew to give

bribe for exonerating complainant's nephew in the

investigation carried out by the petitioner for the offence

under the NDPS Act and on his instructions, constable Naresh

Meena demanded bribe from the complainant and accepted it.

Taking into consideration the above facts, I am of the

opinion that instructing a junior officer for demanding or

accepting bribe from an accused while investigating into an

FIR cannot be termed as an offence relatable to any

recommendation made or decision taken by a public servant

in discharge of his official functions and duties.

The above view taken by me is getting support from the

decisions of Kerala High Court and this Court.

The High Court of Kerala in the case of Shankara Bhat

and Ors. Vs. State of Kerala and Ors., reported in 2021

(4) KLJ 212 has held as under :

"13. In the back ground of the law laid down in that context, the contention, whether prior approval as contemplated under section 17A introduced by 2018 Amendment to the Prevention of Corruption Act is required in respect of every act which form subject matter of prosecution has to be considered. In this context, it is essential to refer to the exact words employed by the statute which reads as follows;

"S. 17A 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

(10 of 22) [CRLMP-427/2022]

public servant in discharge of his official functions or duties without previous approval.".

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 need 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 pre requisite for every enquiry or inquiry or investigation into every act done by the public servant in discharge of his official functions.

14. No doubt, Section 197(1) Cr.P.C. and Section 17A of the P.C. Act operate in two different fields and in distinct situations. Apparently, it has nothing in common at all. However, 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 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, criminal breach of trust, receiving bribes, etc. are beyond the scope of the provision.

15. Statutorily, cases involving arrest of person on the spot on charge of accepting or attempting to accept any undue advantage for himself or any other person, has 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 bribe and the arresting officer cannot wait for previous approval.

16 . While considering the scope of the section 17A of 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 cover 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

(11 of 22) [CRLMP-427/2022]

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 to 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 scenario, 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 intended that such acceptance was consequential to a relevant public function or activity being performed.

17. In the proviso to the proposed section 17A(1), it was provided that the taking of 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 PC Act, except that it was in line with Section 197 Cr.P.C.

18. 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 CBI had opposed the provision, holding that it may cause unnecessary delay in 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.

19. 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 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

(12 of 22) [CRLMP-427/2022]

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 inqury or investigation into any offence alleged to have been committed by a public servant under this Act in 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 inqury, the words "where 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 for previous approval in relation to enquiry, inqury or investigation only in relation to every offence committed by the public servant.

20. 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 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 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 object of section 17A of PC Act.

21. In Dr. Subramanyam Swami v. Centre for Public Interest Litigation, 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 requirement of approval from the Central

(13 of 22) [CRLMP-427/2022]

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 1946 Act and section 26C of 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 legislature has specifically employed the words to restrict the scope of section 17A of PC Act. The scope of the words "relatable to any recommendation made or decision taken" has got its own significance. which, according to 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 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.

22. 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 a protection enable 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 accusation of corruption. In this context, it has to be noted that scope of section 17A is specifically confined to "any recommendation made or decision taken by 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 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 17A is only confined to 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.

(14 of 22) [CRLMP-427/2022]

23. An identical view was taken by a single judge of Delhi High Court in Devendra Kumar v. CBI & others (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 huge amount from him for not charging a case against him. On the question 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 one done in 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 discharge of his official function or duties. In the present case, there was no recommendation or decision on record by public servant in discharge of his official functions. It was only such acts done in discharge of the official functions that would have become the subject matter for seeking approval of 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 ex-facie criminal or constitutes an offence, prior approval of the Government would not be necessary, it was held.

24. The legal principles involved has been correctly appreciated by the Delhi High Court. It was reiterated that the scope of section 17A was that an 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.

25. 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

(15 of 22) [CRLMP-427/2022]

authority. Acts, which are ex facie criminal or constitute an offence do not require approval under section 17A of 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."

(Emphasis Supplied)

The Kerala High Court also in the case of Jayaprakash

J. and Ors. Vs. The State of Kerala and Ors., reported in

2022 (1) KLT 126 has held as under :

"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 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 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.

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

(16 of 22) [CRLMP-427/2022]

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 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 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 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 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.

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 discharge of his official functions or duties."

(Emphasis Supplied)

Recently, a Co-ordinate Bench of this Court vide

judgment dated 27.1.2022 passed in SB Criminal Misc.

Petition No.6337/2021 "Sourabh Garg Vs. State of

Rajasthan" has held as under :

(17 of 22) [CRLMP-427/2022]

"Section 17A which was introduced in the Prevention of Corruption Act by Act No.16 of 2018 clearly postulates that enquiry or inquiry or investigation of offences relatable to recommendations made or decisions taken by public servant in discharge of official functions or duties cannot be undertaken by a Police Officer without the previous approval of the concerned government. However, the Section does not prohibit registration of an FIR. Undoubtedly, demand and acceptance of bribe are not acts relatable to recommendations made or decisions taken by the public servant in the discharge of official functions or duties. Thus, the embargo of previous approval postulated in Section 17A of the Act would not apply in cases where the investigation is sought for into the allegations of demand and acceptance of bribe.

In addition thereto, it may be mentioned that Section 17A of the Prevention of Corruption Act which reads as below :-

"17A. 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 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

(18 of 22) [CRLMP-427/2022]

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."

only postulates that no police officer shall conduct any enquiry or inquiry or investigation into an offence relatable to recommendations made or decisions taken by the public servant in discharge of official functions or duties without the previous approval of the appropriate Government. Thus, what is restricted by the provision is the process of enquiry or inquiry or investigation into the offences without previous approval of the Government. Investigation of a criminal case involving cognizable offences, would essentially have to be preceded by registration of an FIR. The Section by itself, does not prohibit registration of an FIR but only requires that an enquiry or inquiry or investigation shall not be undertaken without prior approval of the Government. Thus, I am of the firm opinion that even in cases covered by Section 17A of the Prevention of Corruption Act, registration of the FIR is not prohibited. Once the F.I.R. is registered, the Investigating Officer would be required to seek approval of the appropriate Government before proceeding to undertake investigation into the allegations.

Analogy for this conclusion can be drawn from Section 19 sub-clause (1) Proviso (i) of the Act which even permits a private person to file a complaint against the public servant for the offences under Sections 7, 11, 13 and 15 of the Act in the competent court. The private complainant would then be required to seek a direction from the concerned court for obtaining prosecution sanction against the public servant concerned. Thus, as even a private complaint can be filed regarding the offences punishable under Sections 7, 11, 13 and 15 of the Act, without any doubt, the Police Officials/ACD Officials can, irrespective of the embargo contained in Section 17A of the Act, register the F.I.R. and seek approval of the Competent Government thereafter."

(Emphasis Supplied)

(19 of 22) [CRLMP-427/2022]

In view of the above judgments laid down by the Kerala

High Court as well as judgment of this Court, I do not find

any merit in the argument of learned counsel for the

petitioner that before registering the impugned FIR qua the

petitioner, no previous approval has been obtained, therefore,

the impugned FIR is liable to be quashed and set aside.

The said argument of learned counsel for the petitioner

is, therefore, rejected.

The contention of learned counsel for the petitioner that

the petitioner never instructed co-accused Naresh Meena,

constable to demand gratification from the complainant or to

receive it is a fact which requires investigation.

The other contention of learned counsel for the

petitioner that from a bare reading of the impugned FIR, no

offence is made out against the petitioner is concerned, I am

not impressed as it is not the case of the complainant that

the petitioner has directly demanded gratification from him

but the complainant has come up with a specific case that

constable Naresh Meena has contacted and asked him to

provide some information regarding selling of drugs and

despite providing the required information to him he said that

he is not satisfied with the information and demanded bribe

from the complainant, which the complainant has paid, but

thereafter he again approached him in Kanpur and asked that

the petitioner and the DY.S.P. concerned are not satisfied with

(20 of 22) [CRLMP-427/2022]

the information supplied and are demanding more money.

Pursuant to that, the ACB laid a trap and caught constable

Naresh Meena red-handed, who later on informed the

petitioner that the complainant has made part payment of

bribe then the petitioner called the complainant and asked

him to come to Sri Ganganagar.

It is true that in the complaint or the trap proceedings, it

has nowhere been mentioned that the petitioner has directly

demanded bribe from the complainant but the Whatsapp

messages and the conversation between the petitioner and

the said constable is in custody of the ACB, which requires

investigation as to what was the role of the petitioner in the

commission of crime.

In such circumstances, it cannot be said that since there

is no direct demand on the part of the petitioner, the

impugned FIR is liable to be quashed.

The last argument of learned counsel for the petitioner

to the effect that though the I.O. after thorough investigation

has submitted its report to the effect that no case is made

out against the petitioner, however, the Addl. DG, ACB has

instructed the I.O. to file charge-sheet against the petitioner

is concerned, it is noticed that though the petitioner in Para

No.4 of this criminal misc. petition has reiterated the said

assertion but has not produced any document in support of

his contention that the I.O. has given him a clean-chit,

however, the Addl. DG, ACB has instructed him to file charge-

(21 of 22) [CRLMP-427/2022]

sheet against the petitioner. In the absence of any such

material, I find it difficult to accept the above contention of

learned counsel for the petitioner.

The judgment rendered by the Hon'ble Apex Court in the

case of Yashwant Sinha (Supra) and the decision rendered

by this Court in the case of Himanshu Yadav (supra), on

which, learned counsel for the petitioner has placed reliance

are concerned, they are of no help to the petitioner as the

facts of the present case are clearly distinguishable from the

facts of the above-referred cases.

The Hon'ble Apex Court in the case of N. Vijaya Kumar

(supra) was hearing an appeal against conviction of an

accused charged for demanding bribe and it was not a case of

quashing of FIR. However, in the present case, the

investigation is at the initial stage and allegations levelled in

the impugned FIR require thorough investigation whether the

so-called role of the petitioner of instructing constable Naresh

Meena to demand and accept bribe from the complainant can

be termed as demand of illegal gratification on behalf of the

petitioner or not, is a matter of investigation and the same

cannot be looked into at this stage. In such circumstances,

the decision of the Hon'ble Apex Court rendered in the case

of N. Vijaya Kumar (supra) is not applicable in the present

case.

So far as the judgment of the Hon'ble Apex Court

rendered in the case of M.C. Mehta (supra) is concerned,

(22 of 22) [CRLMP-427/2022]

the same is of no help to the petitioner because in that case,

the petitioner has successfully demonstrated that the decision

of filing charge-sheet against him was influenced by the

opinion of the Public Prosecutor, whereas in the present case,

no such circumstance is brought into notice of this Court that

the I.O. is filing charge-sheet against the petitioner on the

instructions of higher police officials.

In view of the above discussion, I do not find any merit

in this criminal misc. petition and the same is hereby

dismissed.

(VIJAY BISHNOI),J

94 - ms rathore

Powered by TCPDF (www.tcpdf.org)