S.17A Prevention Of Corruption Act | Lack Of Sanction Not Bar When Constitutional Court Orders Enquiry Against Public Servant: Kerala High Court

The Kerala High Court has reiterated that when a Constitutional Court passes an order to conduct enquiry or investigation into an offence under the Prevention of Corruption Act, Section 17A of the Act does not operate as a bar. The provision requires that before a police officer conducts an enquiry, inquiry or investigation into any offence alleged to have been committed by a public servant under the Act, when the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official function or duties, a prior approval of the concerned authority should be obtained.The case is related to the appointment of persons to the post of sweeper – cum – cleaner in the Cochin University of Science and Technology. The notification of the post was published in 2008. Due to the pendency of certain litigations before the High Court, the final rank list was published only in 2018. Based on this list, 97 people were appointed.Petitioners alleged malpractice and nepotism in the selection process. Their case is that before the interview, the ruling political party gave the selection committee a list of people who must be appointed. Petitioners alleged that candidates who got lower marks in the written exam but who were in the list were given maximum marks in the interview; Candidates who scored higher marks in the written exam but were not in the list were given lower marks in the interview.A syndicate meeting held on 27/12/2018 decided to publish the list of selected candidates on 28/12/2018. However, the petitioner alleged that the details in the ranked list were already leaked through the office bearers of the employees' association affiliated to the ruling political front. They further alleged that office bearers of the said employees' organization contacted the selected candidates to ensure their membership to their association much before the publication of the ranked list.The petitioners had filed a complaint before the Director of Vigilance seeking investigation into this. The Senior Advocate for the Government argued that the Vigilance could not go ahead with this complaint as there was no prior approval under Section 17A of the Act.The Court observed that prior approval under Section 17A is only required when the alleged offence is relatable to any recommendation made or decision taken by a public servant in discharge of his public duty. It referred to Shankara Bhat and Others v State of Kerala and Others which held that any offence, acts which on the face of it constitutes an offence or demand of illegal consideration cannot be treated as offence related to any recommendation made or decision taken by a public servant. The Court held that it cannot hold that the allegations are related to any recommendations made or decision taken by a public servant. Further, Court held that when a constitutional court gives direction to conduct inquiry, Section 17A would not operate as a bar. In this regard it referred to Venugopal V. and others v. State of Kerala (2021) where it was held,"The bar under Section 17A of the Act with regard to conducting enquiry/investigation operates against the police officer or the investigating agency concerned and it does not create any fetter on the power of a constitutional court to order preliminary enquiry or investigation into an offence under the Act. Once a constitutional court examines and satisfies itself about the necessity or desirability of an enquiry or investigation into an offence under the Act and passes an order to conduct enquiry or investigation, the police officer concerned is not obliged to obtain previous approval of the competent authority, as envisaged under Section 17A of the Act, to conduct such enquiry or investigation."The Director of Vigilance and Anti-Corruption Bureau was directed to conduct a preliminary enquiry within three months.Counsel for Petitioners: Advocates V. A. Navas, U. NidhinCounsel for Respondents: Advocates S. P. Aravindakshan Pillai, Rajesh A., Rekha S.Citation: 2024 LiveLaw (Ker) 342Case Title: Bindulal V. S. & Others v State of Kerala and OthersCase No.: WP(Crl.) 281/ 2024Click here to Read/Download Order

S.17A Prevention Of Corruption Act | Lack Of Sanction Not Bar When Constitutional Court Orders Enquiry Against Public Servant: Kerala High Court

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