TMI Blog2024 (1) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... Guntur Prabhakar, Adv. Ms. Prerna Singh, Adv. Mr. Guntur Pramod Kumar, AOR Mr. Kumar Vaibhaw, Adv. Mr. Gautam Bhatia, Adv. Mr. Anmol Kheta, Adv. Mr. Ayush Kaushik, Adv. Ms. Rajni Gupta, Adv. Mr. Vishwajeet Singh, Adv. Mr. Ayush Shrivastava, Adv. Mr. Mohd. Ashaab, Adv. Ms. Somaya Gupta, Adv. Ms. Aditi, Adv. Mr. Satyam Sharma, Adv For the Respondent : Mr. Ranjit Kumar, Sr.Adv. Mr. Mahfooz Ahsan Nazki, AOR Mr. Santosh Krishnan, Adv. Mr. Polanki Gowtham, Adv. Mr. Kv Girish Chowdary, Adv. Ms. Rajeswari Mukherjee, Adv. Ms. Deepshikha Sansanwal, Adv. Mr. T Vijaya Bhaskar Reddy, Adv. Mr. Meeran Maqbool, Adv. Ms. Archita Nigam, Adv. Petitioner-in-person, AOR JUDGMENT ANIRUDDHA BOSE, J. Leave granted. 2. The appellant is aggrieved by initiation of a criminal proceeding against him and his detention in connection with the same by the respondent State through its CID. Allegations have been made against him for commission of offences under Sections 166, 167, 418, 420, 465, 468, 471, 409, 209 and 109 read with Sections 120B, 34 and 37 of the Indian Penal Code, 1860 and Section 12 and 13(2) read with Sections 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement with two corporate entities, Siemens Industry Software India Pvt. Ltd. ( SIEMENS in short) and Design Tech India Pvt. Ltd. (we shall refer to it henceforth as Design Tech ). The original object, in terms of a memorandum numbered as G.O.Ms. No. 4 dated 30.06.2015 issued by the Skill Development, Entrepreneurship Innovation (Skills) Department approving the said Agreement, was to set up six different clusters comprising of one Centre of Excellence and five Technical Skill Development Institutions and Skill Development Centres in Andhra Pradesh. The total project cost was conceived to be Rs.3281,05,13,448/with each of the six clusters costing Rs.546,84,18,908/. Government contribution was limited to 10 percent of the cost amounting to Rs.55,00,00,000/, with SIEMENS and Design Tech providing grantinaid of 90% i.e., Rs.491,84,18,908/. It is the State s case that requirement of contribution of the two corporate entities was ignored and the final memorandum of agreement only entailed outflow of Rs.330/crores from the State to Design Tech. A signed copy of this memorandum, which does not carry any date, has been made Annexure R15 to the counteraffidavit of the State (Volume I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad approved the same and as per his instruction, Memorandum of Association and Articles of Association of APSSDC were also approved. As per estimation, costs for six clusters, were projected as Rs.3319.68 crores but the private participants did not infuse any fund as per their original obligation. It is recorded in the impugned judgement that the Andhra Pradesh Cabinet headed by the appellant at the instance of the accused no.1 had approved sanction of a budget of Rs.370/crores towards 10% contribution of the government in the project and G.O.Ms. No.4 dated 30.06.2015 was issued to that effect. The main complaint against the appellant is that he had fast tracked the project and approved the cost estimation with criminal intent and by pursuing the government officials, he had ensured release of Rs.370/crores. The project was allotted to Design Tech and SIEMENS on nomination basis, without following any tender process. Misappropriation of government funds through corrupt and illegal methods has been alleged and abuse of official position has been attributed to the appellant. Summary of the allegations against the appellant is revealed from the Memorandum dated 08.09.2023, filed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 8. The High Court, interalia, held that the said provision cannot be applied to any offence committed prior to 26.07.2018. It has also been highlighted before us on behalf of the State that offences under Section 13 (1) (c) (d) were deleted from the said statute by the Prevention of Corruption (Amendment) Act, 26 of 2018. It was by the same Amendment Act, that Section 17A was incorporated in the said statute. On this basis, it is urged, that any protective measure, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he point as to whether enquiry had commenced by the letter of 05.06.2018. I have quoted the letter of 05.06.2018 in the preceding paragraph. This letter refers to an earlier letter dated 14.05.2018 addressed to the Andhra Pradesh AntiCorruption Bureau by the Director General of GST Intelligence, Pune submitting information regarding corruption and siphoning of Government funds pertaining to APSSDC. The letter dated 05.06.2018 essentially carries a request for enquiry. There is no indication in the materials produced before us as to whether any step was taken in pursuance of such request till the year 2021. The first suggestion of any active enquiry can be seen in a letter of 22.02.2021 originating from the Deputy Superintendent of Police, AntiCorruption Bureau of that State, which states that the bureau is investigating a regular enquiry pertaining to allegations of corruption, misappropriation of funds and procedural lapses in relation to collaboration of APSSDC/AP Government with Design Tech. It appears that there was a previous communication in this regard dated 09.02.2021. Even though reference is made to the letter of 05.06.2018 in this communication, there are no specific par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaken by the State after 05.06.1988 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. The restriction in Section 17A of the 1988 Act is on conducting an enquiry by a police officer without the prior approval of the authority specified therein. 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, as I have already indicated, and lack of action on this count has been attributed by the State to the appellant and the other accused persons themselves. We are not g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence. Thus, a judicial authority, in such a context has the advantage of coming to some form of opinion as to whether the offending acts can be said to have been committed in discharge of his official duty or not. In the case of Dr. S.M. Mansoori(Dead) Through Legal Representatives vsSurekha Parmar and Others [(2023) 6 SCC 156], the complaint related to offences punishable under Sections 498A and 506 read with Section 34 of IPC as well as Sections 3 and 4 of the Dowry Prohibition Act, 1961. The police personnel had entered the house of the appellant therein without any previous sanction and the charges framed against the accused were quashed by the High Court on the ground that prior sanction under Section 197 of 1973 Code was not taken. In that context, it was held by a Coordinate Bench of this Court that looking at the nature of allegations in the complaint, at that stage it was impossible to conclude that the acts alleged to have been done by the accused were committed by her while in discharge of official duty. The High Court judgment was set aside and it was opined by the Coordinate Bench in the facts of that case, that a final view on that issue would be taken only after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case. xxx xxx xxx 23. Where a power is conferred or a duty imposed by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution. If in the exercise of the power or the performance of the official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance. This accords with common sense and does not seem contrary to any pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prima facie not relatable to discharge of official duty by the accused, here the appellant s actions relate to making recommendations or taking decisions and these decisions and recommendations otherwise, prima face, relate to discharge of official functions. In the case of State of Telangana vsManagipet alias Mangipet Sarveshwar Reddy [(2019) 19 SCC 87] the accused questioned the authorisation of the investigating officer in terms of Section 17 of the 1988 Act. This Court held : 36. The High Court has rightly held that no ground is made out for quashing of the proceedings for the reason that the investigating agency intentionally waited till the retirement of the accused officer. The question as to whether a sanction is necessary to prosecute the accused officer, a retired public servant, is a question which can be examined during the course of the trial as held by this Court in K. Kalimuthu [K. Kalimuthu v. State, (2005) 4 SCC 512 : 2005 SCC (Cri) 1291] . In fact, in a recent judgment in Vinod Kumar Garg v. State (NCT of Delhi) [Vinod Kumar Garg v. State (NCT of Delhi), (2020) 2 SCC 88 : (2020) 1 SCC (Cri) 545 : (2020) 1 SCC (L S) 146] , this Court has held that if an inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment, a Coordinate Bench has held that the Section 17A of the 1988 Act is substantive in nature and is therefore applicable prospectively. The same view has been taken by different High Courts but as I have an authority of this Court on this point, I do not consider it necessary to refer to all these High Court Judgements. 20. In the case of Tejmal Choudhary (supra) the FIR was registered on 01012018 and the accused public servant sought quashing of the FIR on the ground of introduction of Section 17A in the 1988 Act. In para 10 of this judgment, the Coordinate Bench observed that: 10. In State of Telangana v. Managipet alias Mangipet Sarveshwar Reddy reported (2019) 19 SCC 87, this Court rejected the arguments that amended provisions of the PC Act would be applicable to an FIR, registered before the said amendment came into force and found that the High Court had rightly held that no grounds had made out for quashing the proceedings. In the present case, original FIR was registered on 09.12.2021 and the appellant was implicated in the aforesaid offences on 08.09.2023. There is no evidence of any substantive enquiry, inquiry, or investigation made against him prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant. The said section, however, as I have already narrated, had become operational when the enquiry started. Thus, proceeding on the basis that the said provision is prospective in its operation, the material point of time for determining its prospectivity would be the starting point of enquiry or inquiry and investigation. 22. The question as to whether the phrase under this Act used in Section 17A of the 1988 Act, would mean to be the Act , as it existed at the time of alleged commission of offence or the Act as it stood post amendment when the enquiry commenced would also have to be answered by this Court. While dealing with the issue of necessity for obtaining prior approval, I have already held that the appellant could be implicated under Section 13 (1)(c) and (d), as at the time of alleged commission of the offences, these provisions were alive. Once certain offences are deleted from an enactment, they do not vanish totally unless the lawmakers say so. They move to the back pages and can be revived if they were committed before being enacted out of the legislation. But I cannot give a restrictive interpretation to the expression under this Act to give an isolated r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf by the Central Government. (3) When trying any case, a special Judge may also try any offence, other than an offence specified in section 3, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the trial of an offence shall be held, as far as practicable, on day to day basis and an endeavour shall be made to ensure that the said trial is concluded within a period of two years : Provided that where the trial is not concluded within the said period, the special Judge shall record the reasons for not having done so: Provided further that the said period may be extended by such further period, for reasons to be recorded in writing but not exceeding six months at a time; so, however, that the said period together with such extended period shall not exceed ordinarily four years in aggregate. 24. Now if I accept the meaning Mr. Rohtagi wants us to give to the said expression as employed in Section 17A of the 1988 Act, the same expression i.e. under this Act as contained in Section 3 (1) (a) would als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office, at the time 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. (emphasis supplied) 117. In terms of Section 17A, no police officer is permitted to conduct any enquiry or inquiry or conduct investigation into any offence done by a public servant where the offence alleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his office at the time when the offence was alleged to have been committed. In respect of the public servant, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med in this behalf. The same view has been reflected in the case of Tejmal Choudhary (supra). 26. One point which has been urged in relation to this authority is that this was not a contention raised by the parties in the judgment of Yashwant Sinha (supra) and was not dealt with by the majority opinion. Hence, according to the respondents a concurring opinion could not be a binding authority on a point which has not been dealt with by the majority of the Hon ble Judges in the Bench. Mr. Rohatgi relied on a decision in the case of Rameshbhai Dabhai Naika vsState of Gurajat and Others [(2012) 3 SCC 400] on this point. The ratio of this decision would not apply in the context of the judgment delivered in the case of Yashwant Sinha (supra), as in the latter authority the majority view does not reflect any discord over the concurring view. In my opinion, however, position of law laid down in a concurring judgment ought to be treated as part of the main judgment and that opinion would form a binding authority. I should not distinguish between the main judgment and the concurring view and isolate the reasoning contained in the concurring opinion and hold the reasoning contained i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd order passed by the Special Judge appointed in terms of Section 3 of the aforesaid statute illegal and nonest. For the purpose of testing this legal issue, which was raised on behalf of the appellant, it would be necessary to refer to the provisions of Sections 3 and 4 of the 1988 Act which have been reproduced above. 29. The question of lack of prior approval under the 1988 Act was raised before the Special Judge at the time of remand but this argument was rejected on the ground that time for commission of the alleged offences related to a period prior to 26.07.2018. I have in the earlier part of this judgment discussed this question and held the point in favour of the appellant. 30. There are allegations of commission of offences against the appellant under different provisions of the 1860 Code. I have been taken through the memorandum for adding the appellant as accused and also the order of the remand Court. The IPC offences also relate to the same or similar set of transactions, for which the aforesaid provisions of the 1988 Act were applied. The substantive offences alleged against the appellant are Section 12 and Sections 13(1) (c) and (d) read with Section 13(2), w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvants were being tried with a public servant in relation to offences outside the purview of the 1988 Act. The public servant however was implicated in offences under the aforesaid statute. It has been held and observed in this judgment: 46. We may now examine Criminal Appeal No. 161 of 2011, where the FIR was registered on 271996 and the chargesheet was filed before the Special Judge on 1492001 for the offences under Sections 120B, 420 IPC read with Sections 13(2) and 13(1) of the PC Act. Accused 9 and 10 died even before the chargesheet was sent to the Special Judge. The charge against the sole public servant under the PC Act could also not be framed since he died on 18-2-2005. The Special Judge also could not frame any charge against non-public servants. As already indicated, under subsection (3) of Section 4, the Special Judge could try non-PC offences only when trying any case relating to PC offences. In the instant case, no PC offence has been committed by any of the nonpublic servants so as to fall under Section 3(1) of the PC Act. Consequently, there was no occasion for the Special Judge to try any case relating to the offences under the PC Act against the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 Code, at the same trial. In the case of Jitender Kumar Singh (supra), the public servant against whom allegations of commission of offences under the 1988 Act were brought, had died before framing of charge and other accused persons were not public servants. They were not charged with any offence under the 1988 Act. It was in this context the aforesaid judgment was delivered. It has been submitted before us on behalf of the State that other co-accused persons have been implicated in offences under the 1988 Act. A similar line of reasoning was followed in the case of A. Sreenivasa Reddy vsRakesh Sharma and Another [2023 INSC 682]. I have earlier observed that the offences against the appellant relate to the same or similar set of transactions in relation to which the Special Judge is proceeding with the case initiated by the F.I.R. dated 09.12.2021 against the other accused persons. In this context, I shall refer to Section 223 of the 1973 Code, which stipulates : 223. What persons may be charged jointly. The following persons may be charged and tried together, namely: (a) persons accused of the same offence committed in the course of the same transaction; (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. The only narrow question which remains to be answered is whether any other person who is also charged of the same offence with which the co-accused is charged, but which is not an offence specified in Section 3 of the Act, can be tried with the co-accused at the same trial by the Special Judge. We are of the view that since subsection (3) of Section 4 of the Act authorizes a Special Judge to try any offence other than an offence specified in Section 3 of the Act to which the provisions of Section 220 apply, there is no reason why the provisions of Section 223 of the Code should not apply to such a case. Section 223 in clear terms provides that persons accused of the same offence committed in the course of the same transaction, or persons accused of different offences committed in the course of the same transaction may be charged and tried together. Applying the provisions of Sections 3 and 4 of the Act and Sections 220 and 223 of the Code of Criminal Procedure, it must be held that the appellant and his co-accused may be tried by the Special Judge in the same trial. 15. This is because the co-accused of the appellant who have been also charged of offences specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 nonest. (iv) The appellant, however, could be proceeded against before the Special Judge for allegations of commission of offences under the Indian Penal Code, 1860 for which also he has been implicated. 35. The appeal stands partly allowed, in the above terms. 36. All connected applications stand disposed of. JUDGMENT BELA M. TRIVEDI, J. 1. Leave granted. 2. The entire controversy in the instant Appeal centres around the interpretation of Section 17A of the Prevention of Corruption Act, 1988 (hereinafter referred to as the PC Act ), and its applicability to the facts of the present case. Having had the benefit of going through the draft opinion of my esteemed Brother Justice Aniruddha Bose, I deem it appropriate to pen down my views on the issues involved in the Appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A- 6 to A-10 and with criminal intention, released the Govt funds through the accused without verifying the contribution of Technology partners, allowed other accused to do fraudulent and illegal acts, committed misappropriation of Government funds to the tune of around Rs.279 Crores which were entrusted to them or under their control by corrupt and illegal methods. A-37 A-38 through A-1, allowed other accused to divert APSSDC funds by using fake invoices as genuine one for purpose of cheating through the shell, defunct companies without providing materials/services to the APSSDC-Siemens project by the M/s DesignTech, by conspiring, colluding and intentionally co-operating in the commission offence with several acts of by the concerned Directors of companies and private persons. A-38 as a Minister holding a concerned department i.e SDE I APSSDC did not review the project and caused the wrongful loss to the Govt. and wrongful gain to himself and others. Therefore, a prima-facie case was established for the offences U/s 120(B), 418, 420, 465, 468, 471, 409, 201, 109 r/w 34 37 IPC Section 12, 13(2) r/w 13(1) (c) and (d) of Prevention of Corruption Act, 1988 against Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Special Court. (ii) Section 17A of the PC Act which was introduced with effect from 26.07.2018, interdicts . any enquiry or inquiry or investigation into an offence alleged to have been committed by a public servant , without the previous approval of functionaries specified in Clauses (a), (b) or (c), as the case may be, the only exception being where a public servant is apprehended red handed . (iii) Section 17A constitutes a complete legal bar to the very initiation of any enquiry, inquiry or investigation as was noted by this Court in Yashwant Sinha Ors. Vs. Central Bureau of Investigation (2020) 2 SCC 338 . (iv) Section 17A relates to the procedure by which an enquiry, inquiry or investigation into an offence is to be conducted. It is a procedural provision, which does not impair any right of the investigating agencies. In this regard reliance is placed on Anant Gopal Sheorey vs. State of Bombay AIR 1958 SC 915 and on Rattan Lal Alias Ram Rattan Vs. State of Punjab AIR 1965 SC 444 . (v) No person has a vested right in the remedies and the methods of procedure in trials for crime. A law that draws upon antecedent facts in its prospective ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gations of offences under the PC Act, the continuation of investigation under IPC offences cannot be countenanced as the basic material for constituting both kinds of offences is the same. (xiii) It is trite law that if the initial action is not in consonance with law, all subsequent and consequential proceedings would fall. In the present case, once offences under the PC Act are effaced from existence, the custody of the appellant pursuant to the orders passed by the Special Court from time to time was without any sanction of law, as the Special Court in that case had no powers to remand persons accused of offences under the IPC alone. The jurisdictional fact for the exercise of jurisdiction by the Special Court is the existence of an offence under the PC Act, and once such jurisdictional fact ceases to exist, the orders of Special Court are required to be treated as without any sanction of law and non-est. In this regard, reliance is placed on State of Punjab vs. Davinder Pal Singh Bhullar Others (2011) 14 SCC 770 . (xiv)A legal bar to a prosecution is a valid ground for quashing the proceedings as held by this Court in R.P. Kapur vs. State of Punjab AIR 1960 SC 866 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the appellants case, he was neither the Minister In-Charge of the concerned Project, nor had he had anything to do with the concerned corporation (APSSDC). (vi) In the instant case, the alleged offences have been registered not only under the PC Act but also under various offences of Indian Penal Code (IPC) like Sections 409, 166, 167, 418, 420, 465, 468, 471, 201 and 109 read with Section 120(B) of IPC. Committing criminal breach of trust/misappropriation of funds could never be construed to fall under the discharge of official duties. In any case the question whether an act is within one s official capacity or not can only be decided in the course of trial. (vii) As held in State of Rajasthan vs. Tejmal Choudhary, 2021 SCC Online SC 3477 Section 17A of PC Act is a Substantive Provision and is therefore applicable only prospectively. Section 17A envisages a substantive right against non-prosecution of innocent acts in course of official duty; and not an obstacle/ hurdle in the investigation process of the prosecution, especially when the sanction is denied. Section 17A creates new rights, disabilities and obligations and therefore it ought not to be applied retrospe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant therefore to scuttle the investigation at the preliminary stage qua him. When there are adequate grounds to initiate a criminal investigation, the same cannot be scuttled more particularly when the other central agencies are also investigating the same scam alleged against the appellant. ANALYSIS : 10. At the outset, it may be noted that the PC Act 1988 sets the framework for prosecuting individuals involved in corrupt activities and provides measures to prevent corruption in various spheres of the society. By emphasizing accountability, transparency and strict legal consequences, the PC Act stands to combat corruption and to foster and uphold the culture of ethical conduct. The very objectives of the 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. It also provides for the investigation and prosecution of corruption cases, outlining the procedure for gathering evidence, conducting trials and ensuring a fair and expeditious legal process. By the Prevention of Corruption (Amendment) Act 2018 (he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. Since the main issue involved in the present Appeal is in respect of the interpretation of the newly inserted provision Section 17A, let us regurgitate the basic principles of Statutory interpretation as propounded by this Court from time to time. It is well known rule of interpretation of statutes that the courts must look to the object which the Statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary S. Gopal Reddy Vs. State of A.P.; 1996 (4) SCC 596 . The purport and object of the Act must be given its full effect Indian Handicrafts Emporium Ors. Vs. Union of India Ors.; 2003 (7) SCC 589 . The text and the context of the entire Act must be looked into while interpreting any of the expressions used in the Statue. If two views are possible, the view which most accords the object of the Act, and which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for processing of cases under Section 17A, 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 (Para 4.2 of the said SOPs). The meaning of the words inquiry and investigation for the purposes of Section 17A could be imported from the definitions contained in Section 2(g) Section 2(h) respectively of Cr.PC, the same being made applicable subject to certain modifications in view of Section 22 of the PC Act. 15. As stated earlier, the provisions pertaining to the offences under the PC Act particularly the offences under Section 7, 8, 9, 10 and 13, have been substantially amended, and the new offence under Section 7(A), has been inserted by the Amendment Act 16/2018. Such substitution in place of existing provisions and such insertion of new provisions in the PC Act, have created new set of rights and liabilities under the Act. Section 17A having been newly inserted simultaneously with such amendments in the provisions pertaining to the offences, in my opinion, Section 17A could be made applicable only to the said amended/ newly inserted offences under the PC Act. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he right is given by birth, that is, an antecedent event, and the provisions operate concerning claiming rights on and from the date of the Amendment Act. 62. The concept of retrospective and retroactive statute was stated by this Court in Darshan Singh v. Ram Pal Singh [Darshan Singh v. Ram Pal Singh, 1992 Supp (1) SCC 191] , thus: (SCC pp. 211-13, paras 35-37) 35. Mr Sachar relies on Gokal Chand v. Parvin Kumari [Gokal Chand v. Parvin Kumari, (1952) 1 SCC 713 : AIR 1952 SC 231] , Garikapati Veeraya v. N. Subbiah Choudhry [Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540] , Jose Da Costa v. Bascora Sadasiva Sinai Narcornim [Jose Da Costa v. Bascora Sadasiva Sinai Narcornim, (1976) 2 SCC 917] , Govind Das v. CIT [Govind Das v. CIT, (1976) 1 SCC 906 : 1976 SCC (Tax) 133] , Henshall v. Porter [Henshall v. Porter, (1923) 2 KB 193] , United Provinces v. Atiqa Begum [United Provinces v. Atiqa Begum, 1940 SCC OnLine FC 11 : AIR 1941 FC 16] , in support of his submission that the Amendment Act was not made retrospective by the legislature either expressly or by necessary implication as the Act itself expressly provided that it shall be deemed to have come into force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date prior to its enactment. So far as the Amendment Act, 2018 is concerned, it has been made applicable specifically from the date of its notification i.e. 26.07.2018. 18. In Hitendra Vishnu Thakur and Others vs. State of Maharashtra and Others (1994) 4 SCC 602 , it was held by this Court that a statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation unless otherwise provided either expressly or by necessary implication. The ratio of the said judgment in Hitendra Vishnu Thakur was also followed in G.J. Raja vs. Tejraj Surana (2019) 19 SCC 469 . 19. In State of Telangana vs. Managipet @ Mangipet Sarveshwar Reddy (2019) 19 SCC 87 , this Court rejected the arguments that the amended provisions of the PC Act would be applicable to an FIR registered before the said amendment came into force. 20. In a very recent decision in the case of State of Rajasthan vs. Tejmal Choudhary (2021) SCC OnLine SC 3477 , this Court set-aside the interim order passed by the High Court which had quashed the proceedings only on the ground that the approval was not obtained under Section 17A of the PC Act, by o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or retroactively applicable, the same would not only frustrate the object of the PC Act but also would be counter-productive. It is axiomatic that no proceeding could stand vitiated or could become infructuous on account of the subsequent amendment in the Act. The well-known and well accepted rule of interpretation of statute is that the courts should take into consideration the other provisions of the Act also while interpreting a particular provision, and should avoid such interpretation as would lead to an anomalous situation or to frustration of the object of the Act. 23. As held in Subramanian Swamy vs. Manmohan Singh and Another (2012) 3 SCC 64 , in case of two possible constructions of a provision in the PC Act, it would be the duty of the court to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it. In Subramanian Swamy vs. Director, Central Bureau of Investigation and Another (2014) 8 SCC 682 , the Constitution Bench had observed while dealing with Section 19 of the P.C. Act that the protection against malicious prosecution which is extended in public interest, cannot become a shield to protect corrupt officials. 24. The judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that though the old provision of Section 13 has been substituted by the new provision, and though Section 13(1)(c) and 13(1)(d) are no more offences under the amended provision of Section 13, the right of the investigating agency which had accrued to investigate the crime which took place prior to the amended provision of Section 13, continues in view of Clauses c and e of Section 6 of the General Clauses Act. According to him, unless a different intention appears in the Amendment Act 2018, the right of the investigating agency to investigate the offences under Section 13(1)(c) and 13(1) (d) could not be said to have been affected by the Amendment Act 2018. I find substance in the said submission of Mr. Rohtagi, in view of the observations made by this Court in M.C. Gupta vs. Central Bureau of Investigation, Dehradun (2012) 8 SCC 669 , which clinches the issue. 14. Viewed from this angle, clauses (c) and (e) of Section 6 of the GC Act become relevant for the present case. Sub-clause (c) says that if any Central Act repeals any enactment, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instituted against the accused. In the instant case also the offences under Section 13(1)(c) and 13(1)(d) were in force when the same were allegedly committed by the appellant. Hence, the deletion of the said provisions and the substitution of the new offence under Section 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. 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. 29. In the instant case, the Appellant having been implicated for the other offences under IPC also, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
