Section 17A PC Act - Prior Approval For Investigation Not Necessary When Act Of Public Servant Is Ex-Facie Criminal : Kerala High Court

The Kerala High Court has ruled that for offences like falsification of accounts, breach of trust and misappropriation of funds or acts which are ex facie criminal, no prior approval as prescribed  under section 17A of Prevention of Corruption Act is required.

Justice Sunil Thomas while dismissing a batch of applications observed:

"...it has to be noted that scope of section 17A is specifically confined to "any recommendation made or decision taken by public servant" which alone falls within the protection under section 17A. Definitely, the case of offences like misappropriation of funds, fraud, falsification of accounts, criminal breach of trust, conspiracy, etc. cannot be covered by the protection under section 17A. Definitely, they do not involve any decision or recommendation at all."

The bench was deciding a few connected matters where the petitioners were accused of offences punishable under Sections 13(2) read with 13 (1)(d) of the Prevention of Corruption Act,1988. They had moved the Court challenging the prosecution proceedings launched against them. 

The primary question that arose in all these cases was whether section 17A of the Prevention of Corruption Act is an omnibus prerequisite, applicable to every investigation, enquiry or inquiry, i.e, whether previous approval from the competent authority need to be obtained for every enquiry, inquiry or investigation, into every offence committed by the public servant.

The specific contention of the accused was that section 17A was intended to prevent misuse of the provisions of the Prevention of Corruption Act by using it against honest officers and hence, a proceeding launched sans such statutory requirement was bad. 

To decide this issue, the Court initially put Section 197 of CrPC under the microscope.

The said CrPC provision dictates that no court shall take cognizance of an offence involving a public servant who was accused of an offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the concerned competent authority.

The Court noted that the question of whether this sanction under section 197 was a mandatory requirement preceding every action taken by the authority was the subject matter for consideration in a catena of decisions. 

In Baijnath Gupta & Ors v.State of Madhya Pradesh (AIR 1966 SC 220), the Apex Court had laid down the crucial test to determine whether a public servant, acts or purports to act in an official capacity by holding that, if challenged, he can reasonably claim that, what he did was, by virtue of his office.

This view was approved by several decisions that followed.

After elaborate scrutiny of several decisions, the Court extracted the consistent view that a clear division between those acts which constitute an offence and those acts, though done while discharging the official duties of the public servant, does not ipso facto constitute an act done or purported to be done in discharge of his official duties.

Therefore, it was concluded that if a criminal offence is committed by a public servant, which is unconnected with his duty, sanction under Section 197 was not required, since it undoubtedly does not form part of his official duty or purported to be done, in discharge of his official duty.

The Court thereafter considered the scope of Section 17 off PC Act in the back ground of the law laid down in that context, although it admitted that Section 197(1) Cr.P.C.and Section 17A of the P.C.Act operate in two different fields and in distinct situations, and have nothing in common.

However, it found that the consistent principle laid down in relation to any offence committed by a public servent while acting or purporting to act in discharge of his official duty can be profitably adverted to answer the legal issue involved in relation to section 17A of the PC Act.

"Extending the principle to S.17A of P.C.Act, it can be said that offences like misappropriation,falsification of accounts, cheating, criminal breach of trust, receiving bribes,etc.are beyond the scope of the provision."

To trace back the legislative intent of the provision, the Bench also analysed the background in which section 17A was introduced. 

Section 17A provides that previous approval is required in relation to enquiry, inquiry or investigation into any offence allegedly 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".

The Court noted that this was the most crucial part of the section, since it imposes a rider on the otherwise absolute power under section 17A that enquiry, inquiry or investigation into every act needed prior approval. 

"Prior approval under section 17A was required only where the alleged offence was relatable to "any recommendation made or decision taken by the public servant". This seems to be the heart and soul of the above section. It is clear that the Parliament has consciously used the above words. If the intention of the Parliament was to impose a pre condition that every enquiry, inquiry or investigation into every allegation of offence against a public servant required prior sanction, the words "where the alleged offence is relatable to any recommendation made or decision taken by the public servant" ought not have been there."

Definitely, offences like misappropriation of funds, fraud, falsification of accounts, criminal breach of trust, conspiracy, etc. cannot be covered by the protection under section 17A. Definitely, they do not involve any decision or recommendation at all.

"Such acts cannot be considered as one done in discharge of his official functions and duties as contemplated under section 17A. Hence, it cannot, by any stretch of the imagination be held that investigation into any of the offences as mentioned above also needs prior approval, under section 17A."

Finding this to be in pari materia with section 197 CrPC, the Court noted that if section 17A was interpreted as intending to cover every investigation, enquiry or inqury into any offence allegedly committed by a public servant, then it would have run counter to the spirit of all the above decisions.

To give further credence to this position, the Court relied on the decision of the Delhi High Court in Devendra Kumar v. CBI & others [W.P.(Criminal) No. 3247/2018].

Therefore, it was decided that any commission of offence or allegation of acts of public servants which is ex facie criminal or constitute an offence or even demanding illegal consideration or receiving of it either to routinely move the file or to keep the file pending, without any decision being taken therein, will not fall within the scope of section 17A.

Hence, prior approval under section 17A is not warranted in such cases.

Applying the above legal principles, the Court took the firm opinion that in the cases which involve allegation of falsification of accounts, breach of trust and misappropriation of funds or acts which are ex facie criminal, no prior approval under section 17A of Prevention of  Corruption Act is required. 

Accordingly, all the petitions were found to be without any merit and dismissed.

Case Title: Shankara Bhat v. State of Kerala & Ors

Click Here To Read The Order