Sanction To Investigate Public Servant: When The Act Is Ex-facie Criminal, Approval Under Section 17A of PC Act Not Necessary, Rules Delhi HC

Delhi High Court has recently ruled that when the act of a public servant is ex-facie criminal or constitutes an offence, prior approval of the Government as mandated under Section 17A of Prevention of Corruption Act would not be necessary.

Justice Najmi Waziri was hearing petitions filed by CBI Officers Rakesh Asthana And Devender Kumar for quashing the FIR registered by CBI against them.

They were accused of taking Rs. 3 crores in bribe from businessman Sathish Babu Sana to sabotage a money laundering investigation against meat exporter Moin Qureshi.

The petitioner Rakesh Asthana has impugned the registration of the 2018 FIR primarily, on two grounds: (i) that it is in breach of Section 17A of PC Act, which requires prior sanction/ permission from the Government of India before registration of the FIR and (ii) that it is actuated by malice of then CBI Director Alok Verma against the petitioner.

Additional Solicitor General submitted on behalf of the CBI that permission under section 17A of Prevention of Corruption Act, 1988 would not be at all warranted because the allegations in the complaint, on the basis of which the FIR has been registered after due process, cannot be said to be in discharge of the official functions or duties of the officers against whom allegations have been made.

The complainant clearly mentioned that the illegal gratifications were demanded from him or otherwise he was promised that he would be let off in RC 2017, if he were to pay an amount of Rs.5 crores to the middlemen, Manoj and Somesh and the monies would travel up the hierarchal order to senior officials in the CBI. He has mentioned the names of the petitioners. It is argued that, therefore, any advisory issued by the Central Vigilance Commission (CVC) under section 8 of the Central Vigilance Commission Act, 2003 (CVC Act) apropos section 17A of the Act would not be applicable to this case. He, further, contends that because of the nature of the allegations against the public servants, no permission would be required from the competent authority under section 17A of the Act.

Counsel for respondent No.3 reiterates the basic argument on behalf of the CBI: i.e. no sanction would be required in cases where the conduct of the public servant is not in the discharge of official duties. He refers to the dicta of the Supreme Court in Subramanian Swamy vs. CBI, (2014) 8 SCC 682, which has struck down section 6A of the Delhi Special Police Establishment Act, 1946 (DSPE), which is pari materia with section 17A of the PC Act. It is stated that the constitutionality of section 17A of the Act too has been challenged and notice has been issued by the Supreme Court on 26.11.2018.

After considering the arguments the bench held that taking the statement of the complainant on face value an element of coercion and threat can be gleaned.

The complainant refers to communication through telephone calls, Whatsapp messages and transaction of monies through persons both outside as well as inside the country, to substantiate his allegation that monies have been extorted from him through threat, on the promise that he will ultimately be let off only when he gives the monies. The web of these conversations, electronic messages and transfer of monies seek to cover or involve the public servants in the alleged transaction. Whether the petitioners are at all complicit, as alleged, would be revealed only in further investigation. However, the alleged promise to the complainant to ultimately giving him relief in RC 2017 and/or investigating officer ceasing to call him for further investigations, cannot be said to be in the discharge of official functions or duties of the public servant (Investigating Officer) and other persons mentioned in the FIR.

Section 17A mandates that 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 of the appropriate Government.

But as per the first proviso to Section 17A , 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.

Explaining the scope of Section 17A Justice Najmi Waziri observed that the bar to enquiry or inquiry or investigation under Section 17A of the PC Act is apropos such alleged offence as may be relatable to any recommendation made or decision taken by a public servant in discharge of his official functions or duties.

"In the present case there is no recommendation or decision on record by a public servant in the discharge of his official functions. It was only the discharge of official functions that could have become the subject matter for seeking approval of the employer i.e. the Central Government. The proviso to Section 17A stipulates: "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". This Proviso clearly refers to cases where the charge is of accepting or attempting to accept undue personal advantage for himself or for any other person".

Explaining further it is held that the purpose of Section 17A can be read to be only to provide protection to officers/public servants who discharge their official functions and/or duties with diligence, fairly, in an unbiased manner and to the best of their ability and judgment, without any motive for their personal advantage or favour. A public servant cannot be possibly left to be under the constant apprehension that bonafide decisions taken by him/her would be open to enquiry or inquiry or investigation, on the whimsical complaint of a stranger.

Section 17A as it reads and the legislative intent in its enactment can only be to protect public servants in the bonafide discharge of official functions or duties. However, when the act of a public servant is ex-facie criminal or constitutes an offence, prior approval of the Government would not be necessary.

Finally it is conclude that The complainant -Sana has alleged coercion, threat and extortion of money, albeit for an offence under Section 7 of the PC Act as well, but such acts by a public servant cannot be said to be in the discharge of his official function or duties. Therefore, in the present case, the approval under Section 17A of the Act would not be necessary. 

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