Sufficient Prior Approval Obtained Before Investigating Accused Officers In Palarivattom Flyover Scam: Anti-Corruption Bureau To Kerala High Court

The Vigilance and Anti-Corruption Bureau (VACB) has opposed the petition filed by former Secretary to Kerala PWD, TO Sooraj, seeking to quash the FIR registered against him in the Palarivattom Flyover Scam case. The agency asserted that it has obtained the requisite prior approval under Prevention of Corruption Act, for investigating accused officers. 

The Single Bench of Justice Narayana Pisharadi reserved orders in the matter after an elaborate hearing today.

The petitioner TO Sooraj was the Secretary of Public Works Department from 12th October 2012 to 22nd November 2014. He contended that there was no prior approval taken by the agency, as contemplated under Section 17A of the Prevention of Corruption Act, before proceeding with an investigation against him. Apart from this, it was argued that a prior approval, in this case, had to be signed by the Governor, which was not done by the respondents.

The VACB submitted that the Government directed it to conduct a detailed enquiry as per communication dated 6th May 2019. However, upon anticipating that there are chances of misinterpretation of the same not being a valid approval under section 17A, the Government upon the request of VACB issued a communication dated 26th August 2019, amending the earlier communication to the effect that the approval is granted u/s 17.

Hence, VACB argued that approval was granted by the Government to conduct enquiry/investigation into the offence alleged to have been committed by the officers/employees of KITCO and RBDCK who are public servants. Therefore, it is not at all necessary that separate approvals mentioning their name are to be given in respect of each public servant which is not contemplated under section 17.  

"S.17A is to provide screening mechanism to filter out frivolous or motivated investigation that could be initiated against senior officers to protect them from harassment and to enable them to take a decision without fear. The protection available under section 17A cannot be interpreted to mean that a public servant committing an offence under the Act is not liable to be proceeded with," a statement filed by the agency states.

Additionally, it is not the intention and real meaning of Section 17A to get approval for conducting enquiry/investigation against a public servant whose involvement in the crime is revealed during the course of an enquiry/investigation undertaken with previous approval. The investigating agency is well within its power to conduct enquiry/investigation against any person who is found to have involvement in the crime during the course of an enquiry/investigation conducted with previous approval.

Moreover, it was argued that when a cognizable and criminal offence is attracted against the public servants, the investigating agency has to act as per the provision of the Cr.PC and to prevent the loss of valuable evidence. For that, the investigating agency has to act as per the decision in Lalitha Kumari v. Govt. of UP.

Other contentions in VACB's statement

In its statement, the VACB has also accused the petitioner of purchasing 17 cents of land on 1st October 2014 for 1.4 crores for his son subsequent to the release of 8.25 crore as mobilisation advance without any interest to the contracting company. 

It was also alleged that the illegalities committed by the petitioner in connection with the construction of the Palarivattom flyover and the payments of the large sum of unaccounted money were suspicious. 

VACB also alleged that the petitioner had violated the Rules of business by issuing an administrative sanction order for 72.6 crores for the flyover construction. Thereby it was alleged that he had abused his official position as a public servant and indulged in several corrupt activities, consequently causing financial loss to the government. 

Case Title: TO Sooraj v. State of Kerala & Anr.