S.17A Prevention Of Corruption Act | Private Complaint Against Public Servant Should Also Be Accompanied By Prior Sanction: Karnataka High Court

The Karnataka High Court has held that private complaints filed without prior approval (sanction) from competent authorities under Section 17A of the Prevention of Corruption Act, against public servants should not be entertained by the Magistrate/Sessions Judge.

A single judge bench of Justice M Nagaprasanna said,

“This Court has come across several cases where private complaints are preferred by the complainants where, they do not approach the Investigating Agency like the Karnataka Lokayukta, but choose an alternate route of knocking at the doors of the Magistrate or the Sessions Judge. At that stage, what the Magistrate/Sessions Judge would do, is refer the matter under Section 156 (3) for investigation. Once the matter is referred for investigation, the Police / Lokayukta would have no choice but to register a crime. What happens in this process is the protective filter for vexatious, frivolous or malicious prosecution against the public servants created by the Parliament by the amendment in the year 2018 bringing in Section 17A to the Act is rendered illusory.”

Following which the court issued directions for Sessions Judges/ Special Court for entertaining complaints against public servants alleging offences punishable under Prevention of Corruption Act, 1988 (even if it is an amalgam):

(i) The complaint should narrate that the complainant has made his efforts to register a crime before the Karnataka Lokayukta and no action is taken by the police on the complaint. Mere statement in the complaint would not suffice but documentary evidence to demonstrate such fact should be appended to the private complaint.

(ii) The private complaint should also append prior approval granted by the competent authority to register a private complaint, akin to a prior approval for an FIR to be registered by the Investigating Agency as obtaining under Section 17A of the Act. This would become a prerequisite to the concerned Court to refer the matter for investigation under Section 156(3) of the Cr.P.C.

(iii) The aforesaid direction (ii) would be applicable only if the offences alleged would be the ones punishable under the Prevention of Corruption Act or the allegation would be an amalgam of offences both under the Prevention of Corruption Act and the Indian Penal Code. This direction at (ii) will not be applicable if the alleged offences are only of the Indian Penal Code.

The bench said “These directions become necessary in the light of the fact that once the matter is referred for investigation the Police will have no choice but to register the crime. Therefore, such approval being appended to the private complaint is sine qua non for maintainability of the complaint.”

It added “The private complaint shall also be accompanied by an affidavit of the complainant, not a verifying affidavit, but an affidavit as obtained under the Oaths Act, 1969. It is only then the learned Sessions Judge can entertain a private complaint against public servants.”

The directions were given while quashing a District Court order referring the complaint made by RTI activist Syed Malik Pasha against a public servant for offences under Sections 403, 409, 120-B of the IPC and Sections 13(1)(d) and 13(2) of the PC Act, for investigation.

Pasha had not registered a complaint before the jurisdictional police of the wing of the then Anti Corruption Bureau, but registered a private complaint against several officers and four suppliers, including the petitioner.

The bench on going through the records held “The case at hand forms a classic illustration of misuse and abuse of law by the 2nd respondent/complainant. If the 2nd respondent had preferred a complaint before the Karnataka Lokayukta, the complaint would have been forwarded to the competent authority seeking permission under Section 17A to register a crime and crime would have been then registered only after prior approval from the competent authority.”

It added “Invoking Section 200 of the Cr.P.C., the complainants or complainant in the case at hand are seeking to circumvent the rigor of Section 17A of the Act. If this practice is permitted, it would only open gates for frivolous and vexatious litigation by the complainants.”

Case Title: Dr Ashok V And The State By Hon’ble Lokayukta of Karnataka Case No: CRIMINAL PETITION No.531 OF 2022

Citation: 2023 LiveLaw (Kar) 282

Date of Order: 04-07-2023

Appearance: Senior Advocate Sandesh J Chouta a/w Advocate Devaraju for Petitioner.

Special PP B.B.PATIL, FOR R-1

Click Here To Read/Download Order