Nara Chandrababu Naidu vs The State Of Andhra Pradesh

2024 INSC 41 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO._______________OF 2024 (Arising out of Petition for Special Leave to Appeal (Criminal) No.12289 of 2023)

NARA CHANDRABABU NAIDU …APPELLANT(S)

VERSUS

THE STATE OF ANDHRA PRADESH & ANR. …RESPONDENT(S)

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 Signature Not Verified Digitally signed by GEETA AHUJA Date: 2024.01.16 20:16:41 IST Reason: been made against him for commission of offences under

1 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. The said offences are

alleged to have been committed between the years 2015 and

2019, during which period he was the Chief Minister of the State

of Andhra Pradesh. Initially, a First Information Report dated

09.12.2021 was lodged with CID Police Station, Andhra Pradesh,

Mangalagiri implicating twenty­six persons as accused. On that

basis, CR No. 29/2021 was registered. The appellant was not

included in the array of accused persons in that F.I.R. The

offences primarily relate to siphoning of public funds and I shall

refer broadly to the allegations forming the basis of the F.I.R. in

the succeeding paragraphs of this judgment. The list of accused

persons was subsequently expanded and the appellant was also

arraigned as an accused by an “Accused Adding Memo” dated

08.09.2021 lodged before the Special Judge, SPE & ACB cases

(hereinafter referred to as “the Special Judge”). The appellant was

implicated as accused no.37, whereas another individual,

Kinjarapu Atchannaidu was made the 38th accused. The latter is

a former minister of Andhra Pradesh and appears to be a

2 member of the legislative assembly of that State at present. The

appellant was arrested on 09.09.2023 and was produced before

the Special Judge on 10.09.2023. He was remanded to judicial

custody by the Special Judge. The appellant applied before the

High Court on 12.09.2023 for quashing the F.I.R. in Crime No.

29 of 2021 implicating him, invoking the jurisdiction of the Court

under Section 482 of the Code of Criminal Procedure, 1973 (1973

Code). The legality of the remand order dated 10.09.2023 was

also challenged in the same petition before the High Court. The

appellant’s plea was rejected and his petition was dismissed on

22.09.2023 by a learned Single Judge. The present appeal is

against this judgment of dismissal of the said petition.

3. The primarily allegation against the appellant is facilitating

diversion of public money in the approximate range of

Rs.370/­ crores, which was to be used for setting up of six

clusters of skill development centres in Andhra Pradesh. For this

purpose, Andhra Pradesh State Skill Development Corporation

(hereinafter referred to as “APSSDC”) was established through a

memorandum numbered as G.O.Ms. No.47 dated 10.09.2014

(referred to as 13.12.2014 in the order of the Special Judge dated

3 10.09.2023) issued by the Higher Education (EC A2) Department.

APSSDC entered into an 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

4 made Annexure R­15 to the counter­affidavit of the State (Volume

IV at page 206).

4. Submission on the part of the State is that in course of an

investigation by the Additional Director General, GST Intelligence

at Pune, while examining claims of availing CENVAT credit by

Design Tech and one Skillar Enterprises India Pvt. Ltd. (“Skillar”),

a financial scam was unearthed involving both SIEMENS and

Design Tech. This was in relation to funds pertaining to the

project of setting up skill development centres. The complaint of

the taxing body was that SIEMENS and Design Tech had

subcontracted substantial part of their work to Skillar despite

there being no provision of any sub­contract in the Agreement.

Design Tech had claimed that Skillar provided training software

development including various sub­modules designed for high

end software for advance manufacturing of CAD/CAM. As per

Design Tech, royalty and subscription were paid to Skillar, as

they developed the software and Skillar had directly supplied the

same to the Skill Development Centres in Andhra Pradesh. As

recorded in the judgment under appeal, when the tax authorities

confronted Skillar, they took a stand that no technical work was

5 sub­contracted and the training software development modules,

which were provided, were technical materials. According to

Skillar royalty and subscription were wrongly mentioned in the

invoices. It appears that an in­depth scrutiny by the tax

authorities showed that the concerned software including various

sub­modules purported to have been supplied by Skillar to

Design Tech was purchased by Skillar from different companies.

It is also the State’s stand that these companies were

shell/defunct companies and they had issued invoices without

providing any services and that they were used as vehicles for

diverting funds. The APSSDC had conducted a forensic audit in

the year 2020 and the audit found flaws and irregularities in the

systems and in utilisation of funds between the financial years

2014­2015 and 2018­2019.

5. As per the investigating authorities a sum of

Rs.370/­ crores from the government funds of the APSSDC has

been siphoned off. Case of the State against the appellant is that

he was the mastermind, who had unilaterally appointed G.

Subbarao and K Lakshminarayana (accused nos. 1 and 2) as MD

and CEO, and Director for the Skill Development Corporation

6 without getting approval from the Andhra Pradesh Cabinet. It

was the appellant who had 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 behalf of the

7 prosecution, for adding the appellant as an accused. These

allegations, inter­alia, are to the following effect: ­

“….A­37 by abusing his (A­37) official position, fraudulently committed criminal breach of trust with a common intention, caused wrongful loss to the Government exchequer by allowing accused and others 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 APSSDC­Siemens project.”

6. On behalf of the appellant, the main argument, which was

also made before the High Court, revolves around non­

compliance of Section 17A of the Prevention of Corruption Act,

1988 in implicating the appellant under Sections 12, 13(2) read

with 13(1) (c) and (d) of the 1988 Act and proceeding against him

inter­alia, under the aforesaid provisions. The arguments on

behalf of the appellants have been mainly advanced by

Mr. Harish N. Salve and Mr. Siddharth Luthra, learned Senior

Advocates. Mr. Mukul Rohatgi with Mr. Ranjit Kumar, both

learned Senior Counsel have primarily argued on behalf of the

State. It is also the appellant’s case that once fault is found with

implicating the appellant under the aforesaid provisions of the

1988 Act, the entire proceeding qua the appellant before the

Special Judge would also collapse because in such a case the

8 Special Judge under the PC Act would have had acted beyond his

jurisdiction and the remand order would become non­est.

7. Section 17A was introduced to the 1988 Act with effect

from 26.07.2018. The said provision reads: ­

“17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.—No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval—

(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;

(b) in the case of a person who is or was employed, at the time when the offence was 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

9 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, which is conceived in the Amendment

Act could not extend to offences committed when such protective

measure for obtaining prior approval was not a part of the

statutory scheme. The High Court primarily decided the case on

the premise that the aforesaid provision cannot be given

retrospective effect.

9. The other limb of argument of the State, which was also

sustained by the High Court is that a regular inquiry was already

ordered on 05.06.2018 regarding the allegations of corruption

against the officials of APSSDC. This was ordered by the Director

General of Anti­Corruption Bureau, Andhra Pradesh. A redacted

version of this letter dated 05.06.2018 has been annexed in 10 Volume V of the compilation of documents submitted by the

State (at page 2 thereof). This compilation of documents (pages 2

to 7A of the said volume) suggests that Anti­Corruption Bureau

had been asking for information in that regard. I quote below the

redacted version of the said letter:­

“ Office of the Director General Anti­Corruption Bureau, Andhra Pradesh, Vijayawada Rc No.10/RE­CIU/2018 Dated:5­6­2018 MEMORANDUM Sub:­ Public Servants­Industries Department­Allegations of corruption against the officials of A.P. State Skill Development Corporation, Vijayawada­Regular Enquiry­ ordered­Reg.

Ref: 1) Letter of Sri <OMITTED> Pune, dt. 14­5­2018.

2) CBI Letter No.122 2017 (CE­117/2017) CBI/Pune/3865, dated 2­10­2017 *** The letter of <OMITTED> Pune and letter of CBI, Pune are enclosed herewith. You are instructed to conduct a Regular Enquiry into the contents letter of petition and submit a RE report within the stipulated time. You are also directed to submit Plan of Action duly approved by the LA­cum­Special PP, ACB, HO, Vijayawada.

­Sd/­ For Director General, Anti­Corruption Bureau, A.P., Vijayawada

To:

Sri Narra Venkateswara Rao, DSP, CIU, ACB, Vijayawada.”

11

10. The High Court has accepted the argument of the State that

a regular enquiry was ordered on 05.06.2018 regarding the

allegations of corruption against the officials of APSSDC by the

DG Anti­Corruption Bureau AP before Section 17A of the 1988

Act came into operation i.e. on 25.07.2018. As a corollary, the

requirement of previous approval as contemplated in the

aforesaid provision would not be applicable in the case of the

appellant.

11. First, I shall examine the 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

12 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 particulars of such enquiry

or the date on which such enquiry was started. There are

subsequent letters dated 22.02.2021, 30.03.2021, 23.06.2021

and 18.08.2021, all referring to the letter of 05.06.2018. But as

it has been already observed earlier, there are no specific

particulars regarding when and in what form the enquiry has

started. There obviously was a time gap between the date of issue

of the letter of 05.06.20218 and actual date on which the enquiry

was commenced. The State has justified this delay in its counter

affidavit. It has been stated that instead of acting on the letter of

the taxing authorities dated 14.05.2018, which in turn has been

referred to in the communication of 05.06.2018, the note file

pertaining to the project was removed by the appellant from the

secretariate in collaboration with other accused persons and this

13 was done to temper with evidence and to ensure that the offences

were not brought to light. This act of removal of file may

constitute a or an independent offence. But if otherwise no

enquiry was started because of such alleged wrong, this time gap

cannot be treated to have caused the date of issue of the letter of

05.06.2018 to be starting point of an enquiry, in the nature

contemplated in Section 17A of the 1988 Act.

12. Section 17A thereof postulates prior approval from the

appointing authority in relation to any enquiry, inquiry, or

investigation under the 1988 Act. While the expression “inquiry”

has been defined in the 1973 code, there is no specific definition

of the word “enquiry”. The Concise Oxford English Law

Dictionary, Revised Tenth Edition, defines the said expression as

“an act of asking for an information”. It entails commencement of

an active search to ascertain the truth or falsity of an alleged

wrongful act.

13. 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 persons or a set of accused persons. “Inquiry” is defined

14 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

05.06.1988 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

15 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 going into the truth of such allegations.

But if such allegations are assumed to be correct, the same shall

only support the appellant’s case that no enquiry was initiated

before incorporation of Section 17A in the statute book. Further,

in the F.I.R. or the preliminary enquiry report dated 09.12.2021,

there was no reference to the communication of 05.06.2018. I,

accordingly, hold that before Section 17A of the 1988 Act had

become operational, no enquiry, inquiry or investigation had

commenced as against the appellant in relation to the subject

crime.

14. Mr. Salve has also relied on a Standard Operating Procedure

(hereinafter referred to as “SOP”) for processing cases under

Section 17A of the 1988 Act. This has been issued under Memo

no.428/07/2021­AVD.IV(B) dated 03.09.2021 by the Department

of Personnel and Training of the Government of India. This

memo in detail records how the aforesaid provisions shall apply.

Clause 4.2 thereof stipulates: ­

16 “Enquiry for the purposes of these SOPs, means any action taken, for verifying as to whether the information pertains to commission of offence under the Act.”

15. As there is no authoritative guideline defining what

constitutes an enquiry, I find it safe to rely on the explanation

given in the aforesaid clause of the SOP. This explanation also

contemplates any action taken for verifying as to whether the

information pertains to commission of offences under the Act or

not. Again, the memo of 05.06.2018, if tested standalone, cannot

be construed to imply taking any action.

16. The High Court citing the judgments of this Court in the

cases of Shambhoo Nath Misra ­vs­ State of U.P. & Others

[(1997) 5 SCC 326] and State of Uttar Pradesh ­vs­ Paras Nath

Singh [(2009) 6 SCC 372], has held that the protection of

sanction sought by the accused persons therein cannot be

applied because when a public servant is alleged to have

committed the offence of fabrication of records or

misappropriation of public funds, it cannot be said that he acted

in discharge of his official duty. Obviously, it cannot be said that

such misdemeanour on the part of a public servant can be

equated to his official duties. But these judgments were delivered

17 while interpreting the provisions of Section 197 of 1973 Code.

The requirement of previous sanction contemplated in Section

197 of the 1973 Code comes at the stage of taking cognizance of

an offence. 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 ­vs­ Surekha 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

18 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 the evidence was recorded.

17. So far as the provision of Section 197 of the 1973 Code is

concerned, the requirement for deciding the question on

obtaining sanction is at the stage of taking cognizance. Thus,

some element of application of mind is necessary while examining

that issue. In the case of Matajog Dobey ­vs­ H. C. Bhari (AIR

1956 SC 44), there was use of force when a tax raiding party was

resisted from conducting a search. This gave rise to two

complaints, which were sent to two magistrates for judicial

enquiry. Summonses were issued against the income tax officials

and the accompanying policemen over use of force. Matajog

Dobey (supra), the resistor, contended that use of such force was

not in discharge of official duty. Objection was raised against the

issuance of summons on the ground of lack of sanction as

contemplated in Section 197 of the Criminal Procedure Code,

which was prevalent at that point of time (1950). Negating such a

contention, a Constitution Bench of this Court observed:­

19 “20. Is the need for sanction to be considered as soon as the complaint is lodged and on the allegations therein contained? At first sight, it seems as though there is some support for this view in Hori Ram case and also in Sarjoo Prasad v. King­Emperor. Sulaiman, J. says that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution. Varadachariar, J. also states that the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceeding. But a careful perusal of the later parts of their judgments shows that they did not intend to lay down any such proposition. Sulaiman, J. refers (at P­179) to the prosecution case as disclosed by the complaint or the police report and he winds up the discussion in these words:“Of course, if the case as put forward fails or the defence establishes that the act purported to be done is in execution of duty, the proceedings will have to be dropped and the complaint dismissed on that ground”. The other learned Judge also states at p. 185, “At this stage we have only to see whether the case alleged against the appellant or sought to be proved against him relates to acts done or purporting to be done by him in the execution of his duty”. It must be so. The question may arise at any 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 commonsense

20 and does not seem contrary to any principle of law. The true position is neatly stated thus in Broom's Legal Maxims, 10th Edn. at p. 312:“ It is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command.”

The scope of operation of Section 17A of the 1988 Act is,

however, different from that of Section 197 of the Code. The

requirement of taking sanction under Section 19 of the 1988 Act

also is at the same stage. Unlike Section 197 of 1973 Code (which

is near identically phrased as the same section in the earlier

version of the Code), Section17A of the 1988 Act imposes

restriction on police officer at the enquiry stage itself, from

proceeding against a public servant in relation to any offence

alleged to have been committed by him, relatable to any

recommendation made or decision taken by such public

servant (emphasis added), without previous approval of the

authorities stipulated in the said Section. We do not think the

cases arising out of Section 197 of the 1973 Code would give

proper guidance for interpreting the provision of Section 17A of

the 1988 Act because, in the cases under Section 197, the

decision on requirement for sanction is to be taken at the stage of

taking cognizance. Thus, there is in­built scope of application of

21 judicial mind to assess, at least prima­facie, if an alleged act falls

within discharge of official duty or not. Under the provisions of

Section 17A of the 1988 Act, there is no scope of judicial

application of mind in determining if the flaw in making

recommendation or taking decision is interwoven with discharge

of official duty or function or not. Moreover, the qualified

embargo therein is on a police officer. On the point as to

assessing whether the offending act is in discharge of official duty

or not, having regard to the nature of duties of a police officer, he

is less equipped to assess that factor, which involves some form

of judicial application of mind. No material has been placed

before us to demonstrate that the concerned police officer had

undertaken any exercise for prima facie forming his opinion as to

whether the offence alleged against the appellant was relatable to

any recommendation made or decision taken by the appellant in

discharge of his official duty. Unlike in the case of Dr. S.M.

Mansoori (supra), in which the offences involved, by their very

nature, were 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 22 official functions. In the case of State of Telangana ­vs­

Managipet 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 investigation was not conducted by a police officer of the requisite rank and status required under Section 17 of the Act, such lapse would be an irregularity, however unless such irregularity results in causing prejudice, conviction will not be vitiated or be bad in law. Therefore, the lack of sanction was rightly found not to be a ground for quashing of the proceedings.”

18. I shall test later in this judgment as to whether the remand

proceeding before the Special Judge was mere irregularity or

fatal, but before that I have to answer the question as to whether

the protection of Section 17A is applicable in the case of the

appellant.

23

19. Large part of Mr. Salve’s arguments was devoted to the

proposition that the content of Section 17A of the 1988 Act was

procedural in nature and relying on the judgments of this court

in the cases of (i) Anant Gopal Sheorey ­vs­ State of Bombay

[AIR 1958 SC 915]; (ii) Rattan Lal ­vs­ State of Punjab [AIR

1965 SC 444]; and (iii) CBI ­vs­ R.R. Kishore [2023 INSC 817],

he has argued that the said provision is retroactive and not

retrospective. His submission is that the amended provision

applies at the starting point of enquiry, inquiry, or investigation,

even though the offence may relate back to a period when the

requirement of obtaining previous sanction was not necessary for

starting these processes. I have already referred to Section 19 of

the 1988 Act which requires the Court to satisfy itself whether

such sanction stated therein has been taken at the stage of

taking cognizance. So far as acts of a public servant in making

recommendation or taking decision in discharge of official duties

are concerned, an entry point check, prior in time has been

contemplated for the investigating agencies. Thus, the

requirement of taking prior approval would arise at that stage,

being the beginning or commencing of enquiry, inquiry, or

24 investigation. In my view a plain reading of the said Section

leads to such an interpretation. 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.

Mr. Rohtagi drew my attention to the judgment of this Court in

the case of State of Rajasthan ­vs­ Tejmal Choudhary [2021

SCC Online SC 3477] to refute Mr. Salve’s submissions on this

point. In this judgment, 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

25 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 to coming into

operation of the Section 17A of the 1988 Act. Hence, the case at

hand is distinguishable from the ratio laid down in the judgment

of this Court of in the case of Tejmal Choudhary (supra).

21. The Amendment Act by which Section 17A of the 1988 Act

was brought into the said statute also deleted the provisions of

sub­clauses (c) and (d) of Section 13 (1) thereof. At the time the

memorandum of adding the appellant as accused was issued, the

said Amendment Act had become operational, but at the time of

alleged commission of offence, aforesaid two sub­clauses were

part of the statute book. Thus, per se, the appellant could be

held liable for commission of offences stipulated in the said

provisions, though their subsequent deletion might have some

impact on the ultimate outcome of the case. We are not

26 concerned with that aspect of the controversy at this stage. It

has been asserted by Mr. Rohtagi, however, that since at the time

of commission of offence, the protective shield of Section 17A was

not in force, the appellant could not claim the benefits thereof. I,

however, do not accept this argument. It has been already

observed by me that the point of time Section 17A of 1988 Act

would become applicable is the starting point of enquiry, inquiry,

or investigation and not the time of commission of the alleged

offence. In the event any of the three acts on the part of the

prosecution is triggered off post 26.07.2018, the mandate of

Section 17A would be applicable. The wording of Section 17A

restricts the power of a police officer to conduct any of the three

acts into any offence by a public servant “under this act”. Thus,

if the process of enquiry commences at a time attracting specific

provisions of the 1988 Act which stand deleted by the

Amendment Act of 2018, the restrictive protection in form of

Section 17A ought to be granted. The phrase “under this act”, on

such construction ought to include offences which were in the

statue book at the time the subject­offences are alleged to have

been committed. Mr. Rohatgi, however, wants me to construe this

expression, i.e. “under this Act” to mean the 1988 Act, as it

27 existed on and from the date the provisions of Section 17A was

introduced. As the said section did not exist at the time of alleged

commission of the offences, his submission is that the said

provision could not apply in the case of the appellant. 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

28 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 retrospective operation to the said

phrase, detaching it from rest of the provisions of Section 17A of

the Act and remove the protective shield in a situation where an

enquiry has started after introduction of the said provision but

relates to an offence committed prior to its introduction in 2018.

The said phrase ought to be relatable to the date of starting of the

enquiry, inquiry or investigation and not to the time or date of

commission of offence.

23. Otherwise, if I apply an interpretation of the expression

“under this Act” to mean the statute as it exists at the time the

enactment is invoked, the same phrase is invoked, the same

might result in divesting the Special Judge of his power to

proceed against the appellant, as at the time the appellant’s case

was brought to the Special Judge, the aforesaid two sub­sections

stood deleted from Section 13 (1) of the 1988 Act.

I am making this observation because the Special Judge’s

jurisdiction is derived from Sections 3 and 4 of the 1988 Act.

These provisions read:­

29 “3. Power to appoint special Judges.—(1) The Central Government or the State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely:—

(a) any offence punishable under this Act; and

(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).

(2) A person shall not be qualified for appointment as a special Judge under this Act unless he is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure, 1973 (2 of 1974).

4. Cases triable by special Judges.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified in sub­section (1) of section 3 shall be tried by special Judges only.

(2) Every offence specified in sub­section (1) of section 3 shall be tried by the special Judge for the area within which it was committed, or, as the case may be, by the special Judge appointed for the case, or where there are more special Judges than one for such area, by such one of them as may be specified in this 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 day­to­

30 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 also have to be read to mean as “the Act”

prevailing at the point of time the appellant’s case is brought to

the Special Judge. This would result in shrinking the jurisdiction

of the Special Judge to try offences which have been repealed by

the Amendment Act of 2018. I am unable to agree with

Mr. Rohatgi on this point. It is an established principle of

statutory interpretation that if a particular phrase is employed in

different parts of an enactment, Courts ought to proceed with an

understanding that the legislature intended to assign the same

meaning to that expression used in different provisions thereof,

31 unless of course, a contrary intention appears from the statute

itself. Here I find no such contrary intention.

25. Now I shall examine the legality of a proceeding which is

started without complying with the requirement of previous

approval under Section 17A of the 1988 Act. In the case of

Yashwant Sinha and Others ­vs­ Central Bureau of

Investigation through its Director and Another [(2020) 2 SCC

338], a Bench of this Court comprising of three Hon’ble Judges,

while dealing with power of review had also examined this

question. The Bench was unanimous in rejecting the review plea.

In a concurring judgment one of the Hon’ble Judges, (K. M.

Joseh, J.) held:­

“116. In the year 2018, the Prevention of Corruption (Amendment) Act, 2018 (hereinafter referred to as “the 2018 Act”, for short) was brought into force on 26­7­2018. Thereunder, Section 17­A, a new section was inserted, which reads as follows:

“17­A. Enquiry or inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.—(1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval —

32

(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;

(b) in the case of a person who is or was employed, at the time when the offence was 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.” (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 is involved in this case, it is clause (c), which is applicable.

Unless, therefore, there is previous approval, there could be neither inquiry or enquiry or investigation. It is in this context apposite to notice that the complaint, which has been filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018, moved before the first respondent CBI, is done after Section 17­A was inserted. The complaint is dated 4­10­2018. Para 5 sets out the relief which is sought in the complaint which is to register an FIR under various

33 provisions. Paras 6 and 7 of the complaint are relevant in the context of Section 17­A, which read as follows:

“6. We are also aware that recently, Section 17­ A of the Act has been brought in by way of an amendment to introduce the requirement of prior permission of the Government for investigation or inquiry under the Prevention of Corruption Act.

7. We are also aware that this will place you in the peculiar situation, of having to ask the accused himself, for permission to investigate a case against him. We realise that your hands are tied in this matter, but we request you to at least take the first step, of seeking permission of the Government under Section 17­A of the Prevention of Corruption Act for investigating this offence and under which, “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)

118. Therefore, the petitioners have filed the complaint fully knowing that Section 17­A constituted a bar to any inquiry or enquiry or investigation unless there was previous approval. In fact, a request is made to at least take the first step of seeking permission under Section 17­ A of the 2018 Act. Writ Petition (Criminal) No. 298 of 2018 was filed on 24­10­2018 and the complaint is based on non­registration of the FIR. There is no challenge to Section 17­A. Under the law, as it stood, both on the date of filing the petition and even as of today, Section 17­A continues to be on the statute book and it constitutes a bar to any inquiry or enquiry or investigation. The petitioners themselves, in the complaint, request to seek approval in terms of Section 17­A but when it comes to the relief sought in the writ petition, there was no relief claimed in this behalf.”

The same view has been reflected in the case of Tejmal

Choudhary (supra).

34

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 ­vs­ State 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 in the main opinion (of majority

of the judges) only to have the status of a binding precedent. The

concurring view is just as much part of the main opinion (of

35 majority of the judges) and will be a binding precedent, composite

with the majority view. The position of law would be different if

the majority view had expressed, either directly or by implication,

a contrary view. That is not the case so far as the judgment in

the case of Yashwant Sinha (supra) is concerned. Hence this

principle of law contained in the concurring judgment would

constitute precedent even though it was expressed in a

concurring judgment of a learned Single Judge which the

majority members of the Bench have not differed. Thus, the steps

taken against the appellant under the 1988 Act ought to be

invalidated as the same did not commence with prior approval as

laid down under Section 17A of the 1988 Act.

27. The cases of Neeharika Infrastructure Pvt. Ltd. vs. State

of Maharashtra [AIR 2021 SC 315] and State ­vs­ M. Maridoss

[(2023) 4 SCC 338] were cited by the respondents to contend that

investigation ought not be scuttled at a nascent stage and it was

also highlighted that the petition for quashing of an FIR was

made within five days from the date the appellant was arraigned

as an accused. It is a fact that the appellant had approached the

quashing Court with extraordinary speed but that factor by itself

36 would not render his action untenable, ousting him from the

judicial forum to have the proceeding against him invalidated. In

the cases of R.P. Kapur ­vs­ State of Punjab [AIR 1960 SC 866]

and State of Haryana ­vs­ Bhajan Lal [(1992) Supp. (1) SCC

335], it has been held that prosecution undertaken in violation of

a legal bar would be a valid ground for quashment of the

proceeding. Further, in the case of Mahmood Ali & others ­vs­

State of UP [2023 INSC 684] a Coordinate Bench of this Court

has observed :­

“13.…. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation.….”

28. Now I shall address the issue as to whether striking down

the set of offences under the 1988 Act from the FIR would render

the remand 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

37 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), which is

the provisions prescribing punishment. I am not satisfied, at this

stage, that the 1988 Act offences are so dominant in the set of

allegations against the appellant that once I consider the

allegations against the appellant de hors the alleged offences

38 under 1988 Act, the allegations of commission of the IPC offences

would automatically collapse. At this stage, in my opinion, the

alleged commission of IPC offences are not mere ancillary to the

1988 Act offences, as has been argued by Mr. Salve and Mr.

Luthra and if commission of offences by the appellant under the

IPC provisions is proved, could form the basis of conviction

independent of the offences under the 1988 Act. Thus, the ratio

of the judgement of this Court in the case of Ebha Arjun Jadeja

and others ­vs­ State of Gujarat [(2019) 9 SCC 789], to which I

was a party, would not aid the appellant. In this judgment, it was

held:­

“18. In the case in hand, the only information recorded which constitutes an offence is the recovery of the arms.

The police officials must have known that the area is a notified area under the TADA Act and, therefore, carrying such arms in a notified area is itself an offence under the TADA Act. It is true that this may be an offence under the Arms Act also but the basic material for constituting an offence both under the Arms Act and the TADA Act is identical i.e. recovery of prohibited arms in a notified area under the TADA Act. The evidence to convict the accused for crimes under the Arms Act and the TADA Act is also the same. There are no other offences of rape, murder, etc. in this case. Therefore, as far as the present case is concerned, non­compliance with Section 20­A(1) of the TADA Act is fatal and we have no other option but to discharge the appellants insofar as the offence under the

39 TADA Act is concerned. We make it clear that they can be proceeded against under the provisions of the Arms Act.”

As would be evident from quoted portion of the judgment in

the case of Ebha Arjun Jadeja (supra), the Coordinate Bench

had permitted proceeding against the appellant therein under the

provisions of the Arms Act though basic material for constituting

the offences was both under the Arms Act and the TADA.

31. In the case of State through Central Bureau of

Investigation, New Delhi ­vs­ Jitender Kumar Singh [(2014) 11

SCC 724] certain persons who were not public servants 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 14­9­ 2001 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 18­2­2005. The Special Judge also could not frame any charge against non­public servants. As already indicated, under sub­section (3) of Section 4, the Special Judge could

40 try non­PC 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. The trying of any case under the PC Act against a public servant or a non­public servant, as already indicated, is a sine qua non for exercising powers under sub­section (3) of Section 4 of the PC Act. In the instant case, since no PC offence has been committed by any of the non­public servants and no charges have been framed against the public servant, while he was alive, the Special Judge had no occasion to try any case against any of them under the PC Act, since no charge has been framed prior to the death of the public servant. The jurisdictional fact, as already discussed above, does not exist so far as this appeal is concerned, so as to exercise jurisdiction by the Special Judge to deal with non­PC offences.

47. Consequently, we find no error in the view taken by the Special Judge, CBI, Greater Mumbai in forwarding the case papers of Special Case No. 88 of 2001 in the Court of the Chief Metropolitan Magistrate for trying the case in accordance with law. Consequently, the order passed by the High Court is set aside. The competent court to which Special Case No. 88 of 2001 is forwarded, is directed to dispose of the same within a period of six months. Criminal Appeal No. 161 of 2011 is allowed accordingly.”

Citing this authority along with the judgement of this court

in the cases of (i) Chiranjilal Goenka ­vs­ Jasjit Singh &

Others [(1993) 2 SCC 507], (ii) State of Tamil Nadu ­vs­

Paramasiva Pandian [(2002) 1 SCC 15], (iii) State of Punjab ­vs­

41 Davinder Pal Singh Bhullar [(2011) 14 SCC 427] and (iv)

Kaushik Chaterjee ­vs­ State of Haryana [(2020) 10 SCC 92] it

was argued that the defect of jurisdiction strikes at the very

power or authority of the Court and hence the Special Judge

could not have passed the remand order and hence the entire

proceeding against the appellant before the Special Judge ought

to fail. On the same point, certain other authorities were also

referred to but we do not consider it necessary to individually cite

those authorities and deal with them separately.

32. So far as the present case is concerned, the principle of law

laid down in the authorities referred to in the preceding

paragraph would not apply. In Section 4(3) of the 1988 Act it has

been stipulated that 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 be charged with under the 1973

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

42 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 co­accused persons have been

implicated in offences under the 1988 Act. A similar line of

reasoning was followed in the case of A. Sreenivasa Reddy ­vs­

Rakesh 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) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;

(c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;

(d) persons accused of different offences committed in the course of the same transaction;

(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and

43 persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first­named persons, or of abetment of or attempting to commit any such last named offence;

(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;

(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:

Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the [Magistrate or Court of Session] may, if such persons by an application in writing, so desire, and [if he or it is satisfied] that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.”

33. Sub clause (a) of the aforesaid provision of the 1973 Code,

so far as charging and trying of an accused is concerned, could

apply in the present case, as the non­obstante clause with which

Section 4 of the 1988 Act is couched, would not oust the

principles contained in Section 223 of the 1973 Code. There is

no incompatibility in applying the aforesaid principle considering

44 the content of sub­section 3 of Section 4 of 1988 Act. In the case

of Vivek Gupta ­vs­ Central Bureau Investigation and Another

[(2003) 8 SCC 628] decided by a Coordinate Bench of this Court,

it has been held:­

“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 co­accused is charged, but which is not an offence specified in Section 3 of the Act, can be tried with the co­accused 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 co­accused may be tried by the Special Judge in the same trial.

15. This is because the co­accused of the appellant who have been also charged of offences specified in Section 3 of the Act must be tried by the Special Judge, who in view of the provisions of sub­section (3) of Section 4 and Section 220 of the Code may also try them of the charge under Section 120­B read with Section 420 IPC. All the three accused, including the appellant, have been charged of the offence under Section 120­B read with Section 420 IPC. If the Special Judge has jurisdiction to try the co­accused for the offence under Section 120­B read with Section 420 IPC, the provisions of Section 223 are attracted. Therefore, it follows that the appellant who is also charged of having committed the same offence in the course of the same transaction may also be tried with them. Otherwise it appears rather incongruous that some of the conspirators charged of having committed the same offence may be

45 tried by the Special Judge while the remaining conspirators who are also charged of the same offence will be tried by another court, because they are not charged of any offence specified in Section 3 of the Act.”

34. A question has also been raised by the appellant as to

whether the Special Judge could have passed the remand order

in the event the remand was asked for only in respect of alleged

commission of the IPC offences. We are apprised in course of

hearing that the appellant has been enlarged on bail. Hence, this

question need not be addressed by me in this judgment. I,

accordingly, dispose of this appeal with the following directions:­

(i) 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 Section 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

sub­section (a) or (b) or (c) of Section 17A of the 1988 Act

shall have to be obtained. In absence of such previous

approval, the action initiated under the 1988 Act shall be

held illegal.

46

(ii) The appellant cannot be proceeded against for offences

under the Prevention of Corruption Act, 1988 as no previous

approval of the appropriate authority has been obtained. This

opinion of this Court, however, shall not foreclose the option

of the concerned authority in seeking approval in terms of

the aforesaid provision. In this case, liberty is preserved for

the State 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.

47

35. The appeal stands partly allowed, in the above terms.

36. All connected applications stand disposed of.

……………………….. J.

(ANIRUDDHA BOSE)

NEW DELHI;

16th January, 2024

48 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

(@SPECIAL LEAVE PETITION (Crl.) No. 12289 OF 2023

NARA CHANDRABABU NAIDU …APPELLANT(S)

VERSUS

THE STATE OF ANDHRA PRADESH & ANR. …RESPONDENT(S)

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.

49 FACTUAL MATRIX:

3. Bereft of unnecessary details, the bare minimum facts required to

decide the present Appeal are that the appellant, who is sought to

be added as the accused No. 37 vide the “Accused Adding

Memo” dated 08.09.2023, in the FIR No. 29/2021 registered at

the P.S. CID P.S., AP, Amarvathi, Mangalalagiri, on 09.12.2021,

was the Chief Minister of Andhra Pradesh between 2014-2019.

The said FIR No.29/2021 was initially registered against 26

accused on the basis of the report of the Chairman APSSDC

dated 07.09.2021 and the preliminary enquiry report dated

09.12.2021, for the offences under Sections 166, 167, 418, 420,

465, 468, 471, 409, 201, 109 read with 120-B IPC and Section

13(2) read with Section 13(1)(c) and 13(1)(d) of the PC Act, in

connection with the alleged swindling of funds by the then Special

Secretary and other officers of the Government and by the

Directors, Project team members and other officers of M/s

Siemens and M/s DesignTech and their shell/defunct allies, by

creating bogus invoices and thereby siphoning of funds of the

government.

4. As per the case of the respondent state, the office of Director

General, Anti-corruption Bureau, A.P, Vijayawada, vide the

memorandum dated 05.06.2018 had directed the DSP, CIU, ACB,

50 Vijayawada to conduct a Regular Inquiry into the letter/complaint

dated 14.05.2018 received by it in respect of the allegations of

corruption made against the officials of the A.P. State Skill

Development Corporation Vijayawada. Based on the report of the

complainant Sri Konduru Ajay Reddy, Chairman, APSSDC; and

the PE Report of Sri N. Surendra, Dy. S.P. EOW-II, CID, A.P.

Mangalagiri, the case being FIR No. 29/2021 was registered on

09.12.2021.

5. It was stated in the “Accused Adding Memo” dated 08.09.2023

filed in CR No. 29/2021 against the appellant (A-37) inter alia

that– “As per the investigation so far done, prima facie

established that A36 committed the offence through a

prior conspiracy led by A-37 along with A-1 A-2 and

others. A-38 colluded with A-37, on 16.2.2015, as a

minister in the AP cabinet led by A-37, approved the cost

estimation of Siemens project received through A-1,

without getting any assessment, verification, proper DPR

and evaluation. The accused A-38 while holding office

as public servant as a Minister holding departments i.e

SDEI & APSSDC, conspired, colluded with A-37, A-2, A-

6 to A-10 and with criminal intention, released the Govt

51 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)

52 and (d) of Prevention of Corruption Act, 1988 against Sri

Nara Chandra Babu Naidu (A- 37), formerly Chief

Minister of Andhra Pradesh and against Sri K.

Atchannaidu, the then Minister for Labour &

Employment, Factories, Youth & Sports, Skill

Development and Entrepreneurship, Govt. of A.P were

added as accused no. 37 and A-38 respectively to this

case.”

6. The appellant was arrested on 09.09.2023 and was produced

before the Special Court for SPE and ACB cases Vijayawada,

A.P. The Special Court on 10.09.2023, passed the order

remanding the appellant (accused no.37) to the judicial custody

till 22.09.2023 under Section 167 Cr.PC by holding inter alia that

the material on record prima facie showed that accused no. 37

had in pursuance of criminal conspiracy, while holding his office

as a public servant, colluded with the other accused and

committed misappropriation of government funds to the tune of

Rs.279 crores by corrupt and illegal methods, causing huge loss

to the Government exchequer. It was also observed that there

was a prima facie material to show the nexus of accused no.37

with the other accused no. 1, 2, 6 and 38 and the other

53 representatives of shell companies, and also sufficient material

eliciting the role of A-37 in the approval of the Skill Development

Project and its activities, attracting the offences under IPC and

PC Act.

7. The appellant thereafter filed a petition being Criminal Petition no.

6942/2023 in the High Court under Section 482 of Cr.PC seeking

to quash the FIR being no.29/2021 qua him and the

consequential order of remand dated 10.09.2023 passed by the

Special Court. The said Criminal Petition came to be dismissed

by the High Court vide the impugned order dated 22.09.2023

which is under challenge before this Court by way of the present

Appeal.

SUBMISSIONS

8. During the course of lengthy arguments made by a battery of

lawyers led by learned Senior Advocate Mr. Harish N. Salve

appearing for the appellant, broadly following submissions were

made:

(i) The absence of a prior approval as mandated by Section 17A

of the PC Act, vitiated the conduct of enquiry or inquiry or

investigation; the initiation and continuation of investigation in

FIR No. 29 of 2021 dated 09.12.2021, including the various

investigative steps of adding of the appellant as Accused No.

37 and arresting the appellant on 08.09.2023; and the

54 remand of the appellant into the custody pursuant to the

orders passed 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 Investigation1.

(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 2 and on Rattan

Lal Alias Ram Rattan Vs. State of Punjab3.

(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 operation is not

1 (2020) 2 SCC 338 2 AIR 1958 SC 915 3 AIR 1965 SC 444

55 retrospective - it is sometimes referred to as being

retroactive.

(vi) Section 17A is retroactive in the sense that it would apply in

future in relation to all enquires, inquires or investigations

being conducted, even though such enquiries, inquires or

investigations may be in respect of offences which may have

allegedly been committed prior to coming into force of Section

17A.

(vii) Section 17A (c) uses the phrase “at the time when the offence

was alleged to have been committed”. Meaning thereby it

suggest that the provision is intended to apply to offences

committed in the past without any limitation.

(viii) The question whether a prosecution can be initiated after a

substantive offence is deleted is not being raised in the

present case - the appellant’s case will be that in such

matters, if the law does not consider an act to be an offence

anymore, initiating a prosecution after the offence is deleted

violates Article 21. However, that will arise in the Trial and the

issue is not being raised at this stage.

(ix) The conclusion of the High Court that the provision cannot be

applied in the case of any offence committed prior to

26.07.2018 is erroneous, as in the instant case the alleged

offences have taken place till 2019, as for the case of the

prosecution.

56

(x) The SOP issued in relation to Section 17A contemplates a

step-by-step approval requirement as per the notification

issued in this behalf.

(xi) The alleged offences in the present case relate to the

recommendations made/decisions taken by the appellant in

discharge of his official functions or duties. The focus of the

provision under Section 17A is the person who has committed

the offence and not merely the offence. The private acts of a

person, not in his or her capacity as a public servant are not

protected by this provision, however, if the offences are

based on the allegations in connection with recommendations

or decisions taken in discharge of his official functions or

duties, section 17A would apply. The allegations levelled

against the appellant have a clear nexus to his post of Chief

Minister.

(xii) Section 17A uses the phrase “any offence”. Hence the

requirement of obtaining prior approval under Section 17A is

applicable to all offences, and not just offences under the PC

Act. In any event, even if the prior approval under Section

17A applies only to allegations 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.

57

(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 & Others4.

(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

Punjab5 and State of Haryana Vs. Bhajan Lal6.

9. Learned Senior Advocate Mr. Mukul Rohtagi for the Respondent –

State of Andhra Pradesh made following submissions: -

(i) None of the facets contained in Section 17A would be

applicable to the facts of the present case in as much as

4 (2011) 14 SCC 770 5 AIR 1960 SC 866 6 1992 (Suppl.) SCC 335

58 Section 17A of the PC Act came into force with effect from

26.07.2018, whereas the Regular Enquiry was initiated in

respect of the alleged scam against the appellant and

others by ACB vide the letter dated 05.06.2018, on the

basis of the complaint received from within the DGSTI on

14.05.2018. When the Enquiry began, Section 17A was not

in existence and therefore cannot be made applicable to the

present case.

(ii) On 11.07.2021, the State issued a memo at the request of

the M.D. of APSSDC entrusting a detailed investigation into

the very alleged scam. As long as the enquiry into the

offence. i.e. facts constituting the offence by the ACB and

the CID enquiry are one and the same i.e. about the

siphoning of funds from APSSDC during the period 2015-

2018. Therefore, the date of initiation of Enquiry into the

said offence for the purpose of deciding the applicability of

Section 17A of the PC Act is the date on which the Enquiry

was first initiated into that particular offence, i.e. 05.06.2018

in the instant case.

(iii) The word “Enquiry” is neither defined in the Code of

Criminal Procedure nor in the PC Act. As per the Standard

Operating Procedure issued by the Government of India

however describes “enquiry” as – “enquiry for the purposes

59 of the SOPs means any action taken, for verifying as to

whether the information pertains to commission of an

offence under the Act.” Hence, the date of initiation of

Enquiry is only offence specific and not investigation agency

specific or complaint/ complainant specific, and does not

change by the mere change of investigating agency.

(iv) The Enquiry, which was initiated by the ACB on 05.06.2018

i.e. much prior to the incorporation of Section 17A into the

PC Act, was later entrusted to the AP CID. All the decisions

that formed part of the offences were taken much prior to

the amendment of the PC Act i.e. between 2015 and 2017.

Therefore, no approval as contemplated under Section 17A

would be required.

(v) The offences allegedly committed by the appellant were not

in discharge of his official functions or duties. Even as 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

60 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,7

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 retrospectively as held in G.J. Raja vs.

Tejraj Surana 8.

(viii) Under the 2018 amendment, other than introducing

Section 17A, other sections like Section 13 (1)(c) and 13(1)

(d) i.e. the offences for which the appellant is charged, were

specifically repealed and the offences were redefined.

Section 17A can have no application to the offences as they

existed prior to the 2018 amendment.

(ix) Even if Section 17A of the PC Act were to be applicable to

the present case, the IPC offences would survive and

7 2021 SCC Online SC 3477 8 (2019) 9 SCC 469

61 therefore also the FIR qua the appellant cannot be

quashed. The question of competence of a particular court

to try the offences would arise only after the investigation is

complete and a chargesheet is filed.

(x) When one of the co-accused has been charged under the

offences under both the PC Act and the IPC, while the other

co-accused have only been charged under the IPC, the

Special Court would have jurisdiction to try both the

accused persons in view of Sections 3, 4 and 5 of the PC

Act. In the instant case 38 persons including multiple public

servants have been arrayed as the accused in Crime No.

29 of 2021 before the AP CID Police Station, and therefore

the Special Court under the PC Act has the jurisdiction to try

all the accused involved in the case.

(xi) In case of two possible constructions of a provision in the

PC Act, it is the duty of the Court to interpret it in the

manner which roots out corruption, as opposed to creating

a road block in the fight against corruption.

(xii) Section 17A of the PC Act is substantially similar to Section

197 of the Cr.P.C., and this Court has interpretively

narrowed down the circumstances in which sanction under

Section 197 of Cr.P.C. needs to be obtained, by holding that

official duties, when discharged for collateral or other

62 benefits, would fall outside the scope of the term “official

duties”.

(xiii) The judgment in case of Yaswant Sinha vs. CBI (supra),

relied upon by the appellant was not a binding precedent,

as the portion thereof relied upon was a discordant note in

Hon’ble Justice Joseph’s judgment, which was in variance

with the main judgment.

(xiv)The appellant was added as an accused by filing the

“Accused Adding Memo” on 07.09.2023 and the petition for

quashing the FIR was filed by the appellant merely 5 days

later, on 12.09.2023. There was a clear attempt on the part

of the 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

63 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 (hereinafter referred to as

the Amendment Act, 2018), the PC Act 1988 was further

amended, to fill in the gaps in the description and coverage of the

offence of bribery so as to bring it in line with the current

international practices and also to meet more effectively the

country’s obligations under the United Nations Convention

Against Corruption. The Central Government in exercise of the

powers conferred by sub section (2) of Section (1) of the

Amendment Act, 2018, had vide the Notification dated 26.07.2018

appointed the 26th July 2018 as the date on which the provisions

of the said Amendment shall come into force. Accordingly, the

said provisions of the Amendment Act, 2018 came into force on

26.07.2018.

64

11. By the Amendment Act 2018, several provisions more particularly

the offences described under Section 7, 8, 9, 10 and 13 in the PC

Act, 1988 were substituted with the new provisions; and several

new provisions like Section 7A, 17A, 18A, 29A etc. were inserted.

Certain provisions pertaining to the punishments of the offences

under the Act were also amended. The newly added Section 17A

being relevant for this Appeal, is reproduced as under: -

“17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.—

No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval—

(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;

(b) in the case of a person who is or was employed, at the time when the offence was 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

65 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 necessary9. The purport and object of the Act must be given its

full effect10. 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 makes the Act workable must

necessarily be the controlling view. Even penal Statutes are

governed not only by their literal language, but also by the object

sought to be achieved by Parliament 11. Even if the words

occurring in the Statute are plain and unambiguous, they have to

be interpreted in a manner which would fit in the context of the

9 S. Gopal Reddy Vs. State of A.P.; 1996 (4) SCC 596. 10 Indian Handicrafts Emporium & Ors. Vs. Union of India & Ors.; 2003 (7) SCC

589. 11 Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs. Central Bureau of Investigation; 2018 (16) SCC 299.

66

other provisions of the Statutes and bring about the real intention

of the legislature12.

13. Although not specifically mentioned in the Statement of Objects

and Reasons of the Amendment Act, 2018, the object of inserting

Section 17A in the PC Act, which is in pari materia with the

provisions contained in Section 6A of the Delhi Special Police

Establishment Act 1946, is to protect the honest public servants

from the harassment by way of inquiry or investigation in respect

of the decisions taken or acts done in bonafide performance of

their official functions or duties. Whereas Section 19 bars the

courts from taking the cognizance of an offence punishable under

the PC Act, alleged to have been committed by public servants

except with the prior sanction of the concerned authorities

mentioned therein, Section 17A bars the police officer from

conducting any enquiry or inquiry or investigation of offences

relatable to recommendations made or decision taken by public

servant in discharge of official functions or duties, without the

previous approval of the concerned authorities mentioned therein.

From the bare reading, it is discernible that Section 17A has the

following main four facets.

(I) Enquiry or inquiry or investigation of offences under the PC

Act.

12 R.M.D. Chamarbaugwalla & Anr. Vs. Union of India & Anr; AIR 1957 SC 628. 67

(ii) Alleged offences should be relatable to the recommendation

made or decision taken by a public servant.

(iii) Such recommendation made or decision taken by a public

servant should be in discharge of official functions or duties

and

(iv) Previous approval of the authorities mentioned therein.

14. Though the word ‘Enquiry’ as contained in Section 17A has

neither been defined in the PC Act nor in the CrPC, as per the

Standard Operating Procedures (SOPs) issued by the Ministry of

Personnel, Public Grievances and Pensions (Department of

Personnel& Training) dated 3 rd September, 2021 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

68 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. Section 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, Section 17A is required to be treated as

a substantive and not merely a procedural in nature. Such a

substantive amendment could not be made applicable

retrospectively to the offences like Section 13(1)(c) and 13(1)(d),

which have been deleted under the Amendment Act, 2018.

16. The submission of ld. Senior Advocate Mr. Salve that since

Section 17A constitutes a legal bar to the very initiation of enquiry,

inquiry or investigation into the offence alleged to have been

committed by a public servant, without the previous approval of

the functionaries specified in the said provision, such a provision

is procedural in nature, and therefore the mandate of Section 17A

should be made retroactively applicable i.e. even to the pending

69 enquiry, inquiry or investigation, if not made applicable

retrospectively, also can not be accepted. The cardinal principle

of construction is that every statute would have prospective

operation, unless it is expressly or by necessary implication made

to have a retrospective operation. There could not be a

presumption against the retrospectivity. In the instant case, the

Amendment Act, 2018, by which Section 17A was inserted, was

specifically made applicable with effect from 26.07.2018 by the

Central Government vide the Notification of the even date. Hence,

the intention of the Legislature was also to make the amendments

applicable prospectively from a particular date and not

retrospectively or retroactively. In Vineeta Sharma vs. Rakesh

Sharma and Others13, a three-judge bench has very aptly

distinguished the effect of retrospective statute, retroactive statute

and prospective statute, and has observed as under: -

“61. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backwards and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended Section 6, since the 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.

13 2020 (9) SCC 1

70

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 on 23-1-1973; and therefore there would be no justification to giving it retrospective operation.

The vested right to contest which was created on the alienation having taken place and which had been litigated in the court, argues Mr Sachar, could not be taken away. In other words, the vested right to contest in appeal was not affected by the Amendment Act.

However, to appreciate this argument we have to analyse and distinguish between the two rights involved, namely, the right to contest and the right to appeal against the lower court's decision. Of these two rights, while the right to contest is a customary right, the right to appeal is always a creature of statute. The change of the forum for appeal by enactment may not affect the right of appeal itself. In the instant case we are concerned with the right to contest and not with the right to appeal as such. There is also no dispute as to the propositions of law regarding vested rights being not taken away by an enactment which is ex facie or by implication not retrospective. But merely because an Act envisages a past act or event in the sweep of its operation, it may not

71 necessarily be said to be retrospective.

Retrospective, according to Black's Law Dictionary, means looking backward;

contemplating what is past; having reference to a statute or things existing before the Act in question. Retrospective law, according to the same dictionary, means a law which looks backwards or contemplates the past; one which is made to affect acts or facts occurring, or rights occurring, before it came into force. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. Retroactive statute means a statute which creates a new obligation on transactions or considerations already past or destroys or impairs vested rights.”

17. Thus, whereas the prospective statute operates from the date of

its enactments conferring new rights, the retrospective statute

operates backwards and takes away or impairs vested rights

acquired under the existing laws. A retroactive statute is one that

does not operate retrospectively, however depending upon the

status and nature of the events or transactions, the operation of

the statute is extended or given effect from the 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 Others14, it was held by this Court that a

14 (1994) 4 SCC 602

72 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

Surana15.

19. In State of Telangana vs. Managipet @ Mangipet Sarveshwar

Reddy16, 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 Choudhary17, 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 observing inter alia that the

legislative intent in the enactment of a statute is to be gathered

from the express words used in the statute, unless the plain

words literally construed give rise to absurd results. It has been

further observed therein that this Court has to go by the plain

words of the statute to construe the legislative intent, and that it

could not possibly have been the intent of the legislature that all

15 (2019) 19 SCC 469 16 (2019) 19 SCC 87 17 (2021) SCC OnLine SC 3477

73 pending investigations up to July 2018 should be rendered

infructuous.

21. Apart from the afore-stated legal position, it is also required to be

noted that while passing the Amendment Act 2018 by which the

then existing offences under the PC Act were deleted and

redefined, and by which some new offences were inserted, the

Legislature had simultaneously introduced Section 17A. It was

also stated in the Amendment Act that the same shall come into

force from the date as may be notified by the Central

Government. Therefore, it is required to be presumed that the

intention of the legislature was to make Section 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. Any other interpretation may

lead to an anomalous situation resulting into absurdity in as much

as there could not be prior approval of the authorities as

contemplated under Section 17A for the offences which have

been deleted by the Amendment Act, 2018. If the submission of

Mr. Salve that Section 17A is retroactive in operation is accepted,

then all the pending proceedings of enquiry, inquiry and

investigation as on 26.7.2018, carried out in respect of the

74 offences which existed prior to the amendment would become

infructuous, frustrating the very object of the Act.

22. As stated earlier, the very object of the PC Act is to combat the

corruption, and the object of Section 17A is to protect the honest

and innocent public servants from undergoing the harassment by

the police for the recommendations made or decisions taken in

discharge of official functions or duties. It cannot be the object of

Section 17A to give benefit to the dishonest and corrupt public

servants. If any enquiry or inquiry or investigation carried out by a

police officer in respect of the offence committed by a public

servant is held to be non est or infructuous by making Section

17A retrospectively 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.

75

23. As held in Subramanian Swamy vs. Manmohan Singh and

Another18, 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 19, 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 judgment in case of Yashwant Sinha and Others vs.

Central Bureau of Investigation (supra), relied upon by Mr.

Salve also would not be of any help to the appellant. Mr. Salve

has relied upon the observations made by Hon’ble Justice Joseph

in his concurring judgment, which according to Mr. Rohtagi was a

discordant note in variance with the main judgment of two judges.

Be that as it may, what has been observed by Justice Joseph is

that Section 17A constitutes a bar of any enquiry, inquiry or

investigation without the previous approval of the concerned

authority. The said observation nowhere states that Section 17A

shall operate retrospectively or retroactively.

18 (2012) 3 SCC 64 19 (2014) 8 SCC 682 76

25. Even otherwise, absence of approval before conducting any

enquiry or inquiry or investigation into an offence alleged to have

been committed by a public servant, as contemplated in Section

17A could never be the ground for quashing the FIR registered

against the public servant or the proceedings conducted against

him, more particularly when he is also charged for the other

offences under the IPC in respect of the same set of allegations.

As stated earlier, there are other important facets contained in

Section 17A, like whether the alleged offence is relatable to the

recommendation made or decision taken by the public servant or

not, and whether such recommendation or decision was made or

taken in discharge of his official functions or duties or not etc.

Such facets could be examined only when the evidence is led

during the course of trial. The alleged acts which prima facie

constitute the offences, though done under the purported exercise

of official function or duty, could not fall within the purview of

Section 17A. The Protection sought to be granted to a public

servant under Section 17A could not be extended to his acts

which prima facie were not in discharge of his official functions or

duties. Any other interpretation would certainly tantamount to

scuttling the investigation at a very nascent stage. Such could

neither be the intention of the legislature nor could such provision

77 be interpreted in the manner which would be counter productive

or frustrating the very object of the PC Act.

26. In response to the court’s query as to how an FIR could have

been registered in 2021 for the offences under Section 13(1)(c)

and 13(1)(d) which have already been deleted by the Amendment

Act 2018, Mr. Rohtagi 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 20, which clinches

the issue.

“14. Viewed from this angle, clauses (c) and (e) of Section 6 of the GC Act become relevant for the

20 (2012) 8 SCC 669

78 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 repealed. In this case, the right which had accrued to the investigating agency to investigate the crime which took place prior to the coming into force of the new Act and which was covered by the 1947 Act remained, unaffected by reason of clause (c) of Section 6. Clause

(e) says that the repeal shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment and Section 6 further states that any such investigation, legal proceeding or remedy may be instituted, continued or enforced and such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed. Therefore, the right of CBI to investigate the crime, institute proceedings and prosecute the appellants is saved and not affected by the repeal of the 1947 Act. That is to say, the right to investigate and the corresponding liability incurred are saved. Section 6 of the GC Act qualifies the effect of repeal stated in sub-clauses (a) to

(e) by the words “unless a different intention appears”. Different intention must appear in the repealing Act (see Bansidhar [(1989) 2 SCC 557] ). If the repealing Act discloses a different intention, the repeal shall not result in situations stated in sub-clauses (a) to (e). No different intention is disclosed in the provisions of the new Act to hold that the repeal of the 1947 Act affects the right of the investigating agency to investigate offences which are covered by the 1947 Act or that it prevents the investigating agency from proceeding with the investigation and prosecuting the accused for offences under the 1947 Act. In our opinion, therefore, the repeal of the 1947 Act does not vitiate or invalidate the criminal case instituted against the appellants and the consequent conviction of the appellants for offences under the provisions of the 1947 Act.”

27. In view of the afore-stated legal position, unless a different

intention is disclosed in the new Act or repealing Act, a repeal of

an Act would not affect the right of the investigating agency to

investigate the offences which were covered under the repealed

79 Act. If the offences were committed when the repealed Act was in

force, then the repeal of such Act would neither affect the right of

the investigating agency to investigate the offence nor would

vitiate or invalidate any proceedings 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 Special Court was completely

80 within its jurisdiction to pass the remand order in view of the

powers conferred upon it under Section 4 and 5 of the PC Act.

There was no jurisdictional error committed by the Special Court

in passing the impugned order of remand. The impugned

judgment and order passed by the High Court also does not

suffer from any illegality or infirmity which would warrant

interference of this Court.

30. In that view of the matter, the appeal being devoid of merits is

dismissed.

…………………………. J.

[BELA M. TRIVEDI]

NEW DELHI;

JANUARY, 16th 2024.

81 IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO._______________OF 2024 (Arising out of Petition for Special Leave to Appeal (Criminal) No.12289 of 2023)

NARA CHANDRABABU NAIDU … APPELLANT(S) VERSUS THE STATE OF ANDHRA PRADESH & ANR. … RESPONDENT(S)

ORDER

As we have expressed opinions taking different views on the interpretation of Section 17A of the Prevention of Corruption Act, 1988 as also its applicability to the appellant in the subject-case, we refer the matter to the Hon’ble the Chief Justice of India. The Registry to place the papers before the Hon’ble the Chief Justice of India so that appropriate decision can be taken for the constitution of a Larger Bench in this case for adjudication on the point on which contrary opinions have been expressed by us.

……………………….. J.

(ANIRUDDHA BOSE)

……………………….. J.

(BELA M. TRIVEDI) NEW DELHI;

16TH JANUARY, 2024.

82