S. 17A PC Act | Preliminary Enquiry Against Unknown Offenders Not Strictly Barred: Delhi High Court
In a significant development, the Delhi High Court observed that although there's no bar to initiating preliminary enquiry against unknown public officials under the Prevention of Corruption (Amendment) Act, 2018 no case could be registered against such unknown officials unless previous sanction is obtained from the competent authority.
“The preliminary enquiry against unknown persons may not be strictly barred under Section 17A of PC (Amendment) Act, 2018, if the offenders are unknown, but at the same time the same cannot be used as a garb by the Investigating Agency to bypass the provision for seeking prior approval under Section 17A of the PC (Amendment) Act, 2018.”, the court said.
It is worthwhile to mention that under Section 17A of the PC Act, there can neither be any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant in the discharge of his official functions or duties, without previous approval of the Competent Authority.
The objective behind Section 17A of the PC (Amendment) Act, 2018 is to provide a protective shield preventing arbitrary 'enquiry or inquiry or investigation' against public servants, who may be wary of taking bona fide decisions under existing provisions of the PC Act, 1988, which impedes the functioning of the Government. The purpose is to protect honest officials and not hurdle the curbing of corruption.
However, the Court said that it may be permissible to hold a preliminary enquiry against the unknown officials without the previous sanction of the competent authority.
The bench comprising Justice Anoop Kumar Mendiratta heard a case where the suo moto enquiry was initiated by the Central Bureau of Investigation (CBI) against the petitioner/NHAI officer based on the entry made in computer record that related to receipt of some amount from the contractors for smooth functioning by the petitioner during the discharge of official functions, though there was no complaint in this regard.
Based on the enquiry, a case was registered against the Petitioner under Section 120B read with Section 477A IPC & Section 13(2) read with Section 13(1)(b) of the PC Act, 1988.
Interestingly, although the alleged dates of the incident were before the 2018 Amendment, but the case was filed after 2018 Amendment. Further, the pre-requisite of obtaining prior sanction from the competent authority under Section 17A was not satisfied as the competent authority refused to grant sanction to prosecute the petitioner citing the absence of credible material to permit prosecution of the petitioner.
“The refusal of prior approval by the Competent Authority under Section 17A is akin to consideration of sanction by the Competent Authority under Section 19 of PC Act, 1988 and is binding on the Investigating Agency unless some new incriminating evidence comes on record, since the Competent Authority is in the best position to factually assess and consider, if there has been any irregularity/illegality, giving an opportunity to the concerned public servant for an uncalled for conduct.”, the Court observed.
“The enquiry has been initiated suo moto on the basis of an entry made in computer record as revealed in enquiry conducted by the Authorities under Income Tax Act... The proceedings against the petitioner appear to be simply a fishing or roving enquiry by the Investigating Agency. It needs to be underscored that Section 17A of the PC (Amendment) Act, 2018 as well as Section 197 Cr.P.C., though conceptually acting in different fields, provide a safeguard to the innocent public servants and discourages frivolous and vexatious prosecution.”, the Court added.
Given the aforesaid, the Court held that the proceedings against the petitioner merely on the basis of a computerized entry, in the absence of any supporting evidence is a mere abuse of the process of the Court.
“The registration of RC and proceedings initiated qua the petitioner along with proceedings emanating therefrom, are accordingly quashed.”, the Court held.
Appearance:
For Petitioner: Mr. N. Hariharan, Sr. Advocate with Mr. Saurabh Rajpal, Mr. Siddhant Singh, Mr. Vinay Kumar Singh, Mr. Sharian Mukherjee, Ms. Rekha Angara and Mr. Aman Akhtar, Advocates.
For Respondent: Mr. Anupam S. Sharma, SPP with Mr. Prakarsh Airan, Ms. Harpreet Kalsi, Mr. Abhishek Batra, Mr. Ripudaman Sharma, Mr. Vashisht Rao and Mr. Syamantak Modgill, Advocates.
Case Title: LAMBODAR PRASAD PADHY Vs. CENTRAL BUREAU OF INVESTIGATION, W.P.(CRL) 3270/2023