Rajasthan High Court - Jodhpur
Tejaram vs State Of Rajasthan on 26 March, 2025
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
[2025:RJ-JD:15245]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 1608/2024
Tejaram S/o Sh. Narsing Ram, Aged About 46 Years, R/o
Khejariyali, Teh. Samdari, Dist. Balotra, Raj.
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Ankur Mathur assisted by
Mr. Udit Mathur
Mr. Harshvardhan Thanvi
Ms. Divya Bapna
For Respondent(s) : Mr. Yogendra Singh Charan for
Mr. Neeraj Gurjar, GA cum AAG
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Judgment
Order Reserved on : 18/03/2025
Date of pronouncement: 26/03/2025
REPORTABLE
Instant criminal revision petition has been filed under Section
397 /401 Cr.P.C against the order dated 12.09.2024 passed by the
learned Special Judge, ACB, Pali in Sessions Case No. 02/2024
whereby, the learned Judge ordered to frame charges against the
petitioner for offences under Section 07 of Prevention of
corruption Act.
Brief facts of the case are that a complaint was filed by the
complainant Devendra Kumar stating therein that he is employed
as Constable at Police Station Abu Road and the accused is
seeking illegal gratification of Rs. 1,50,000/- from him, claiming to
act on behalf of Superintendent of Police, in exchange for not
placing him under suspension. Upon receipt of the complaint, the
police registered a case under Section 7 of the Prevention of
Corruption Act and initiated an investigation.
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After due investigation, the police filed chargesheet against
the petitioner for offence under Section 7 of the P.C. Act and the
matter was committed to the court of Special Judge, ACB Cases,
Pali. Subsequently, the learned trial court after hearing the
arguments on charge, proceeded to frame charges against the
petitioners vide impugned order dated 12.09.2024. Hence, this
present revision petition.
Learned counsel for the petitioner argued that the
prosecution has not complied with the mandatory provisions as
envisaged under Section 17A of the P.C. Act. As per Section 17A of
the amended Act of 2018, no police officer shall conduct any
enquiry or inquiry or investigation into any offence alleged to have
been committed by a public servant under the Prevention of
corruption Act, without previous approval. It is argued that the
allegation against the present petitioner is that he demanded
illegal gratification on behalf of Superintendent of Police, whereas,
the Superintendent of Police has not been arrayed as an accused.
Thus, neither any demand was raised by the petitioner nor any
work was pending at the end of petitioner so as to demand any
illegal gratification. Be that as it may, the petitioner allegedly
committed the "offence" during the course of discharging their
official duty and therefore, the sanction had to be sought before
proceeding against the petitioner. Therefore, the impugned order
dated 12.09.2024 is illegal and same is liable to be set aside.
Learned counsel for the petitioner placed reliance on the decision
of Hon'ble Apex Court in the case of Yashwant Sinha and Ors.
vs. Central Bureau of Investigation and Ors. Reported in
(2020) 2 SCC 338, decision of this Court in the case of
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Himanshu Yadav vs. State of Rajasthan in S.B. Civil Writ
Petition No. 17545/2021 decided on 19.01.2022, decision of this
Court in the case of Ranidan Singh vs. State of Rajasthan
S.B. Criminal Misc. (Pet.) No. 1219/2022 decided on 08.10.2024,
decision of this Court Jaipur Bench in the case of Surendra Singh
Rathore vs. State of Rajasthan S.B. Criminal Misc. (Pet.) No.
4366/2022 decided on 09.09.2022, and decision of this Court in
the case of Rakesh Sheshma vs. State of Rajasthan S.B.
Criminal Misc. Stay Petition No. 9423/2024 decided on
19.12.2024.
Per contra, learned Public Prosecutor and learned counsel for
the complainant argued that offence under Section 7 of the P.C. is
prima facie made out against the accused petitioner and acts done
by the petitioner cannot be said to be in discharge of official duty
and same would not be protected by the armor of Section 17A of
the Code. It is further argued that the point about sanction under
Section 17A need not be considered at the stage of framing of
charges. At this stage the Court should only see if a "prima facie"
case is made out or not. Moreover, before framing of charges,
prosecution sanction has been obtained against the petitioner,
therefore, no interference is called for in the impugned order
dated 12.09.2024 and the revision petition is liable to be
dismissed. Learned counsel for the petitioner placed reliance on
the decision of Hon'ble Apex Court in the case of Nara
chandrababu Naidu Vs. State of Andhra Pradesh & Anr
reported in 2024 1 SCR 549, decision of this Court in the case of
Rajesh Kumar vs. State of Rajasthan reported in 2022 0
Supreme (Raj.) 41, decision of Hon'ble Madhya Pradesh High
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Court in the case of Kavindra Kiyawat vs. State of Madhya
Pradesh reported in 2020 0 Supreme (MP) 587, decision of
Hon'ble Kerala High Court in the case of Shankara Bhat vs.
State of Kerala reported in 2021 Supreme (Online) (Ker)
17555.
I have heard learned counsel for the parties and perused the
impugned order.
In order to appreciate the controversy, it would be apt to
refer to Section 17A of the Prevention of Corruption Act which
reads as under:
"Section 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
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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."
At the outset, it may be noted that very objectives of the PC
Act are to prevent corruption, to promote transparency and
accountability in the public administration, to deter individuals
from engaging in corrupt practices by imposing strict penalties,
protects whistleblowers etc. by the prevention of Corruption
Amendment) Act, 2018, the PC Act 1988 was further amended,
and Section 17A was inserted. The scope of Section 17A of the
Prevention of Corruption Act is limited to protecting public
servants from investigations related to their official decisions and
recommendations. It does not provide blanket immunity for all
actions taken by public servants, particularly those that are
criminal in nature or unrelated to their official duties. The
requirement for prior approval serves to prevent frivolous
investigations while ensuring that genuine cases of corruption are
not obstructed. The Law Commission of India, in its 254th report,
indicated that Section 17A was designed to align with Section 197
of the Criminal Procedure Code, which also requires prior sanction
for prosecuting public servants. The intent was to prevent
harassment of public officials while ensuring accountability.
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Section 17A of the Prevention of Corruption Act deals with the
offence of corruption committed by public servants. The intention
of the Legislature was to protect the public servants in the bona-
fide discharge of their official functions or duties. It specifically
makes when act of a public servant is ex-facie criminal or
constitutes an offence, prior approval of the Government would
not be necessary. It extends the scope of corruption to encompass
to cases where offence is relatable to any recommendation made
or decision taken. It aims to strengthen anti-corruption laws by
ensuring accountability for corrupt actions. From the bare reading,
it is discernible that Section 17A has the following main three
facets; the accused is (a) a public servant, (b) the alleged offence
is relatable to any recommendation made or decision taken by
such public servant, (c) while acting or purporting or in connection
to act in the discharge of his official duty. In case these three
conditions are fulfilled, then the police is prevented from initiated
investigation of the offence unless the appropriate government
grants a sanction against the alleged accused.
In the present case, the contention of the petitioner is that
an offence committed by a public servant under the Prevention of
Corruption Act necessitates prior approval before any inquiry,
investigation, or proceeding against the public officer can be
validly initiated. This contention arises from the provisions of
Section 17A of the Prevention of Corruption Act, which stipulates
that without such prior approval, any subsequent actions taken
against a public officer may be rendered void. However, the
petitioner chose not to challenge the validity of FIR registered in
the year 2021, raising the issue of the absence of the requisite
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prior approval and has filed the present revision petition at this
juncture, when the case has progressed to the charge stage.
In the landmark case of Nara Chandrababu Naidu (Supra),
the Hon'ble Apex Court in categoric terms observed that when an
inquiry or investigation pertains to a public servant in connection
with an allegation of an offence under the Prevention of Corruption
Act--particularly after Section 17A became operational--it is
imperative to secure prior approval as mandated under
subsections (a), (b), or (c) of Section 17A to proceed legally.
However, it was clarified that the absence of such approval, while
rendering the action initiated under the 1988 Act potentially
illegal, would not nullify the entirety of the proceedings, including
remand orders. The relevant paragraph of the judgment is
reproduced hereinbelow:-
"A question has also been raised by the appellant as to
whether the Special Judge could have passed the remand
order in the event the remand was asked for only in
respect of alleged commission of the IPC offences. We are
apprised in course of hearing that the appellant has been
enlarged on bail. Hence, this question need not be
addressed by me in this judgment. I, accordingly, dispose
of this appeal with the following directions:-
(i) If an enquiry, inquiry or investigation is intended in
respect of a public servant on the allegation of commission
of offence under the 1988 Act after Section 17A thereof
becomes operational, which is relatable to any
recommendation made or decision taken, at least prima
facie, in discharge of his official duty, previous approval of
the authority postulated in sub-section (a) or (b) or (c) of
Section 17A of the 1988 Act shall have to be obtained. In
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absence of such previous approval, the action initiated
under the 1988 Act shall be held illegal.
(ii) The appellant cannot be proceeded against for offences
under the Prevention of Corruption Act, 1988 as no
previous approval of the appropriate authority has been
obtained. This opinion of this Court, however, shall not
foreclose the option of the concerned authority in seeking
approval in terms of the aforesaid provision. In this case,
liberty is preserved for the State to apply for such approval
as contained in the said provision.
(iii) I decline to interfere with the remand order dated
10.09.2023 as I am of the view that the Special Judge had
the jurisdiction to pass such order even if the offences
under the 1988 Act could not be invoked at that stage.
Lack of approval in terms of Section 17A would not have
rendered the entire order of remand non-est.
...........
28. Having considered the different contours of Section
17A, I am of the opinion that Section 17A would be
applicable to the offences under the PC Act as amended by
the Amendment Act, 2018, and not to the offences existing
prior to the said amendment. Even otherwise, absence of
an approval as contemplated in Section 17A for conducting
enquiry, inquiry or investigation of the offences alleged to
have been committed by a public servant in purported
exercise of his official functions or duties, would neither
vitiate the proceedings nor would be a ground to quash the
proceedings or the FIR registered against such public
servant."
So far as the cases referred to by the counsel for the
petitioner are concerned, in the case of Yashwant Sinha and
Ors. (Supra), the Hon'ble Apex Court observed that the
petitioners, had filed a complaint that Section 17A constituted a
bar to any inquiry or enquiry or investigation unless there was
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previous approval, however, when it came to the relief sought in
the writ petition, no relief was claimed in this regard, which is not
relevant to the present case. In Himanshu Yadav (Supra), a
coordinate bench of this Court, while quashing the impugned
order, observed that Section 17A of the Prevention of Corruption
Act, 1988, would create a significant obstacle for the investigating
officer, impeding further proceedings. The case referred to by the
counsel for the petitioner concerns a situation where the petitioner
challenged the prosecution sanction at the investigation stage.
However, in the present matter, the petitioner is challenging the
order of framing charge on the basis of bar to an inquiry, enquiry
or investigation unless there was previous approval under Section
17A of the Act of 1988. So far as the cases of Ranidan Singh
(Supra), Surendra Singh Rathore (Supra), and Rakesh
Sheshma (Supra) are concerned, the petitioners contested the
FIR at the investigation stage by way of filing misc petition under
Section 482 Cr.P.C. In contrast, the petitioner has filed the present
revision petition challenging the order of framing charge, thus
distinguishing it from the aforementioned precedents.
Furthermore, recently, the Hon'ble Supreme Court in Nara
Chandrababu Naidu (Supra) has categorically held that the lack
of approval under Section 17A does not render the entire order of
remand non-est, which further distinguishes this case from the
petitioner's argument.
In light of the judicial observation, this court recognizes that
the oversight regarding the acquisition of approval under Section
17A of the Act does not necessarily invalidate the entire order but
may allow for corrective measures. Notably, it has been articulated
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that sanction can be sought at the stage of charge under Section
19 of PC Act, thus providing a procedural remedy at a later stage
of the judicial process. This approach not only aligns with legal
precedent but also preserves the integrity of procedural
safeguards intended to protect public servants while ensuring that
due legal process is followed. In the present case, as observed in
the chargesheet, the prosecution sanction has been duly obtained
for proceeding against the petitioner and therefore, the impugned
order dated 12.09.2024 cannot be said to be illegal or perverse.
Accordingly, the present revision petition having no force is
hereby dismissed. Stay petition is also dismissed.
(MANOJ KUMAR GARG),J
236-BJSH/-
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