| Headnote |
Issue for Consideration Interpretation of s. 17A, Prevention of Corruption Act, 1988 incorporated by the Prevention of Corruption (Amendment) Act, 26 of 2018 and its applicability to the facts of the present case.:Prevention of Corruption Act, 1988 – s.17A inserted by the Prevention of Corruption (Amendment) Act, 26 of 2018 – Operation – Allegations against the appellant for commission of offences u/ss. 166, 167, 418, 420, 465, 468, 471, 409, 209 and 109 r/w ss. 120-B, 34, 37, IPC and ss.12, 13(2) r/w ss.13(1) (c) and (d), 1988 Act allegedly committed between 2015 and 2019 when he was the Chief Minister of the State of Andhra Pradesh – FIR was registered in 2021 initially against 26 accused, the appellant was later added as accused– Appellant sought quashing of the FIR and the order of remand passed by the Special Court – Dismissed by High Court – Plea of the appellant inter alia that the absence of prior approval as mandated by s.17A vitiated the conduct of enquiry or inquiry or investigation: Held: Per Aniruddha Bose, J. 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 s.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 s.17A shall have to be obtained – In absence of such previous approval, the action initiated under the 1988 Act shall be illegal – In the present case, original FIR was registered on 09.12.2021 and the appellant was implicated on 08.09.2023 – There is no evidence of any substantive enquiry, inquiry, or investigation made against him prior to coming into operation of s.17A – Appellant cannot be proceeded against for offences under the 1988 Act as no previous approval of the appropriate authority was obtained – Per Bela M. Trivedi, J. s.17A having been introduced as a part of larger legislative scheme, and the other offences under the PC Act having been redefined or newly inserted by way of Amendment Act, 2018, is required to be treated as substantive and not merely procedural in nature – Such a substantive amendment could not be made applicable retrospectively to the offences like ss.13(1)(c) and 13(1)(d) which have been deleted under the Amendment Act, 2018 – Intention of the legislature was to make s.17A applicable only to the new offences as amended by Amendment Act, 2018 and not to the offences which existed prior to the coming into force of the Amendment Act 2018 – In the instant case, the offences u/s.13(1)(c) and (d) were in force when the same were allegedly committed by the appellant – Deletion of the said provisions and the substitution of the new offence u/s.13 by the Amendment Act, 2018 would not affect the right of the investigating agency to investigate nor would vitiate or invalidate any proceedings initiated against the appellant – In view of difference of opinion, matter referred to the Hon’ble the Chief Justice of India for constitution of a Larger Bench. [Paras 12, 13, 20, 34 and 15, 21, 27]. Prevention of Corruption Act, 1988 – Penal Code, 1860 – Code of Criminal Procedure, 1973 – s.223 – Allegations of commission of offences against the appellant under different provisions of IPC and 1988 Act – Appellant was added as accused by filing the Accused Adding Memo – By the Amendment Act 2018, several provisions, particularly the offences described under ss.7, 8, 9, 10 and 13 in the 1988 Act were substituted with the new provisions; and several new provisions like s.17A were inserted – Appellant filed petition seeking quashing of the FIR and the consequential order of remand passed by the Special Court, dismissed by High Court – Appellant argued that if the initial action was not in consonance with law, all subsequent and consequential proceedings would fall and once offences under the PC Act were effaced from existence, the custody of the appellant pursuant to the orders passed by the Special Court was without any sanction of law:Held: Per Aniruddha Bose, J. The offences against the appellant relate to the same or similar set of transactions in relation to which the Special Judge was proceeding with the case initiated by the F.I.R. dated 09.12.2021 against the other accused persons – Sub clause (a) of the s.223, so far as charging and trying of an accused is concerned, could apply in the present case, as the non-obstante clause with which s.4, 1988 Act is couched, would not oust the principles contained in s.223 – Remand order not interfered with as 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 s.17A would not have rendered the entire order of remand non-est – Appellant could be proceeded against before the Special Judge for allegations of commission of offences under the IPC for which also he has been implicated – Per Bela M. Trivedi, J. Appellant having been implicated for the other offences under IPC also, the Special Court was completely within its jurisdiction to pass the remand order in view of the powers conferred upon it u/ss. 4, 5 of the 1988 Act – No jurisdictional error committed by the Special Court in passing the order of remand – Impugned judgment and order passed by the High Court also does not suffer from any illegality, not interfered with. [Paras 30, 33, 34 and 29]. |
