Rajasthan High Court - Jodhpur
Sourabh Garg vs State Of Rajasthan on 27 January, 2022
Bench: Sandeep Mehta
(1 of 6) [CRLMP-6337/2021]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 6337/2021
Sourabh Garg S/o Shiv Kumar Garg, Aged About 36 Years, R/o
Quarter No.03/229 O.T.C. Scheme Ambamata, District Udaipur.
Presently Patwari, Patwar Mandal, Sisarma, Tehsil Girwa, District
Udaipur.
----Petitioner
Versus
State of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr.Manish Shishodia, Sr.Advocate
through VC with
Mr.Abhijeet Sharma through VC
For Respondent(s) : Mr.Mukhtiyar Khan, P.P.
HON'BLE MR. JUSTICE SANDEEP MEHTA
ORDER
27/01/2022
Reportable
The instant misc. petition has been filed by the accused
petitioner under Section 482 Cr.P.C. seeking quashing of the F.I.R.
No.407/2021 lodged at the Police Station Anti Corruption Bureau,
Udaipur for the offences under Sections 7 and 8 of the Prevention
of Corruption Act (Amendment) Act, 2018 (hereinafter referred to
as 'the Act' for brevity).
Learned senior counsel Shri Shishodia assisted by Shri
Abhijeet Sharma appearing for the accused petitioner through
video conferencing vehemently and fervently urges that the
registration of the impugned F.I.R. is absolutely illegal because no
previous approval to launch the investigation was taken by the
Investigating Officer from the appropriate Government as per the
mandate of Section 17A of the Act. He further submits that
(2 of 6) [CRLMP-6337/2021]
registration of the impugned F.I.R. is also contrary to the ratio laid
down by Hon'ble Supreme Court in the cases of T.T.Antony Vs.
State of Kerala & Ors. reported in (2001)6 SCC 181 and
Amitbhai Anilchandra Shah Vs. The Central Bureau of
Investigation & Ors. reported in (2013)6 SCC 348 as the
impugned F.I.R. is nothing but a second F.I.R. as it has been
registered on the basis of the material collected during
investigation of the earlier F.I.R. No.183/2021 lodged at the Police
Station Anti Corruption Bureau, Udaipur. The parcel of facts
involved in both the F.I.Rs. is so intrinsically interlinked that the
impugned F.I.R. should not have been registered and the
allegations levelled therein should have been investigated in the
first F.I.R. He also placed reliance on the judgment passed by this
Court in S.B.Cr.Misc. Petition No.159/2018 "Kailash Chandra
Agarwal & Anr. Vs. State of Rajasthan & Anr." pronounced
on 7.4.2020 and craved acceptance of the petition.
Per contra, learned Public Prosecutor, vehemently and
fervently opposed the submissions raised by the learned counsel
for the petitioner. He pointed out that during the course of
investigation of the F.I.R. No.183/2021, some mobile phones were
seized and on an analysis of the conversations saved therein,
further transactions regarding exchange of illegal gratifications
came to light, which formed a distinct series of offending acts
pertaining to demand and acceptance of illegal gratification
punishable under Sections 7 and 8 of the Act. Hence, as per
learned Public Prosecutor, the impugned F.I.R. is not a second
F.I.R. on same facts and is rather a fresh F.I.R. in relation to
acceptance of illegal gratification and there is no illegality in
registration thereof.
(3 of 6) [CRLMP-6337/2021]
I have given my thoughtful consideration to the arguments
advanced at the Bar and have gone through the material available
on record.
Law is well settled by a catena of decisions two of which
(T.T.Antony and Amitbhai Shah) have been relied upon by Shri
Shishodia that second F.I.R. cannot be registered on the same
facts. 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
(4 of 6) [CRLMP-6337/2021]
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."
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
(5 of 6) [CRLMP-6337/2021]
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.
Coming to the case at hand, and upon perusal of the factual
report submitted by the Investigating Officer, it becomes clear that
while investigation of the trap case (F.I.R. No.183/2021) was
being undertaken against the petitioner, his mobile phones were
seized and on an analysis of the conversations saved therein, new
transactions pertaining to demands of bribe and exchanges of
(6 of 6) [CRLMP-6337/2021]
illegal gratification came to light, which were distinctly linked to
some different construction activities. In this background, it is
apparent that the impugned F.I.R. has been registered for
separate incriminating acts which are not directly relatable to
recommendations made or decisions taken by the petitioner public
servant in discharge of his official functions or duties and rather
pertain to illegal transactions of demand and acceptance of bribe
by the present petitioner.
In view of the discussion made hereinabove, I am of the firm
opinion that the impugned F.I.R. cannot be said to be a second
F.I.R. on the same facts and as the offences under Sections 7 and
8 of the Act have been applied in the case, the restrictions
contained in Section 17A of the Act also do not apply and hence,
previous approval of the government is not required for making
investigation into such allegations.
Hence, I find no merit in this misc. petition, which is
dismissed as such. Stay petition is also dismissed.
(SANDEEP MEHTA),J
/tarun goyal/ 25
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