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The Karnataka High Court on Tuesday (September 29) decided to examine the applicability of Section 17A of the Prevention of Corruption Act, 1988, to offences allegedly committed before the provision was introduced in 2018, as well as the consequences of a prolonged delay by the State Government in granting approval to investigate a public servant.

The single judge bench of Justice V Srishananda was hearing a writ petition filed by N. Thejas Kumar, a KAS officer and former Tahsildar of Bengaluru East, challenging a 2023 Government Order granting “previous approval” under Section 17A to the Lokayukta Police to investigate him in connection with a khata order passed by him in 2017.

A complaint concerning the khata order was filed before the Anti-Corruption Bureau (ACB) on August 29, 2018, and approval to investigate was sought thereafter. However, the State Government granted approval only on January 4, 2023, more than four years after the request. No FIR has been registered against the petitioner so far.

Section 17A, which was introduced with effect from July 26, 2018, requires previous approval before a police officer conducts any enquiry or investigation into an offence allegedly committed by a public servant in the discharge of official functions or duties. Its second proviso states that the competent authority shall convey its decision on a request for approval within three months, extendable by one month if reasons for the extension are recorded in writing.

The case raises the question whether Section 17A would apply where the alleged offence was committed before the 2018 amendment but the complaint, enquiry and request for approval were made after the provision came into force.

The Court is also examining the consequences, if any, of the State failing to adhere to the statutory timeline for deciding a request for approval.

Advocate Angad Kamath, appearing for the petitioner, argued that Section 17A applies to the case as the complaint and request for approval were made after the provision came into force.

The petitioner contended that the State could not now take a contrary position on the applicability of Section 17A, particularly after granting approval only after a delay of more than four years.

Reliance was placed on the Supreme Court's split verdict in Nara Chandrababu Naidu v. State of Andhra Pradesh, where the question of the applicability of Section 17A to offences committed before its introduction was considered. The petitioner relied on the view taken by Justice Aniruddha Bose that the relevant date for determining the applicability of Section 17A is the date on which the enquiry commences, rather than the date of the alleged offence.

The petitioner also relied on the Supreme Court's decision in Vijay Rajmohan v. State, concerning the statutory timeline for grant of sanction for prosecution under Section 19 of the Prevention of Corruption Act.

It was argued that although the Supreme Court held that breach of the statutory timeline does not automatically result in quashing of the proceedings, the authority remains accountable for the delay and the aggrieved person can approach the High Court under its writ jurisdiction.

The petitioner further sought to distinguish Section 17A from Section 19, pointing out that Section 17A provides that the competent authority “shall convey” its decision within three months, extendable by one month for reasons recorded in writing.

Appearing for the State and the complainant, counsel argued that the alleged offence took place in 2017 and therefore the law applicable at the time of the alleged offence would govern the matter.

It was also submitted that the question of applicability of Section 17A required deeper examination at this stage and that the delay in granting approval, by itself, could not result in quashing of the proceedings, relying on the Supreme Court's decision in Vijay Rajmohan.

During the hearing, the Court also considered the petitioner's argument that the date on which approval or enquiry is initiated could determine which procedural law applies.

The Court orally observed:

“According to you, the date on which you consider applicability of 17A is the date on which approval is sought. For example, if the conduct which is complained of is of July 2024 but the FIR is after July 2024, the BNSS would apply... [or else CrPC would have applied].”

Since the State and the complainant sought time to file their statement of objections/additional statement of objections, the Court directed that the matter be listed again on October 30 at 2.30 p.m.

The interim order earlier granted in favour of the petitioner would meanwhile continue.

Case Title: Thejas Kumar v. State of Karnataka

Case No:W P No 748/2023

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Case Title :  Thejas Kumar v. State of KarnatakaCase Number :  W P No 748/2023