Chandrababu Naidu Case : Why Supreme Court Judges Differed On Retrospective Application Of Section 17A Prevention Of Corruption Act?

In the petition filed by former Andhra Pradesh Chief Minister Chandrababu Naidu, the Supreme Court has delivered a split verdict on the retrospective application of Section 17A of the Prevention of Corruption Act, 1988 (PC Act) to offences which existed before the 2018 amendment, which inserted Section 17A. Justice Aniruddha Bose held that the mandate for previous approval under S. 17A would apply retrospectively. Justice Bela Trivedi disagreed. Section 17A was introduced by an amendment with effect from July 26, 2018, and the provision stipulates a mandatory requirement for a police officer to seek prior approval from the competent authority for conducting any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the Prevention of Corruption Act (PC Act).In the present case, the offences alleged against Naidu related to a period before the 2018 amendment. He sought to quash the investigation for the PC Act offences on the ground that it was launched without the prior approval under Section 17A.Point of commencement of enquiryThe first issue was what was the point of commencement of enquiry. The State contended that the enquiry started by a letter dated 05.06.2018 (i.e. before the 2018 amendment became operational on 26.07.2018) and hence Section 17A was inapplicable. However, Naidu contended that the enquiry started only after the registration of the FIR on 09.12.2021.As per letter dated 05.06.2018, the Director General of the Anti-Corruption Bureau ordered DSP, CIU, ACB, Vijayawada to conduct a Regular Enquiry into the complaints against the APSSDC, which were highlighted in an earlier letter dated 14.05.2018 addressed to the ACB by the Director General of GST Intelligence, Pune. On this aspect, Justice Bose while explaining the meaning of enquiry, inquiry or investigation, declined to hold that the letter dated 05.06.2018 initiated the enquiry. To this effect, Para 13 of the Bose J., judgment is meaningful: “In ordinary perception, “enquiry” by a police officer would imply positive exercise for searching certain details or particulars pertaining to allegations of commission of an offence by an accused person or a set of accused persons. “Inquiry” is defined in Section 2 (g) of the 1973 and implies inquiry conducted under the Code by a Magistrate or Court. Similarly, “investigation” in terms of Section 2 (h) of the same Code includes all the proceedings conducted thereunder for collection of evidence by a police officer or a person authorised by a Magistrate in that behalf. The nature of actions undertaken by the State after 05.06.2018 constitutes neither inquiry nor investigation, as no step under the 1973 Code was taken by the State prior to the year 2021. If that is the meaning attributed to this expression, the letter of 05.06.2018 or the earlier letter from taxing authority dated 14.05.2018 cannot be construed to be the commencing point of any enquiry. These were requests for starting an enquiry, which obviously did not commence prior to the aforesaid dates in the year 2021. Thus, on this point I cannot accept the finding of the High Court that a regular enquiry was already initiated on 05.06.2018.”"A request to conduct an enquiry by itself cannot be the starting point of the enquiry under the said provision to bypass the restriction postulated therein. Moreover, in the facts of this case, actual search for information had commenced in the year 2021," Justice Bose added.Justice Trivedi took a different view on this aspect by relying on the Standard Operating Procedures (SOPs) issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel& Training) dated 3rd September, 2021 for processing of cases under Section 17A, to hold that “Enquiry” means any action taken, for verifying as to whether the information received by the Police Officer pertains to the commission of an offence under the Act. Meaning thereby, the letter dated 05.06.2018 suggests that the enquiry was initiated from the date of the letter and not from the date of registration of FIR dated 09.12.2021. Whether a prior sanction is required to initiate the proceedings against public servant qua alleged offences committed before the coming into effect of Sec. 17A of PC Act?According to Justice Bose, going by the plain language of Section 17A, no enquiry, inquiry or investigation under the PC Act cannot be launched without the prior approval under Section 17A. Here, the investigation commenced after Section 17A became operational. Hence, the mandate of Section 17A has to be fulfilled. “Section 17A does not distinguish between alleged commission of offence prior to 26.07.2018 or post thereof. This provision stipulates the time when any enquiry, inquiry or investigation is commenced by a police officer,” Justice Bose said.It was pleaded by the State that no previous approval is required to initiate the proceedings against the Naidu for the...

Chandrababu Naidu Case : Why Supreme Court Judges Differed On Retrospective Application Of Section 17A Prevention Of Corruption Act?

Yash Mittal

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