Chandrababu Naidu Case : Why Supreme Court Judges Differed On Retrospective Application Of Section 17A Prevention Of Corruption Act?

In the petition filed by former Andhra Pradesh Chief Minister Chandrababu Naidu, the Supreme Court has delivered a split verdict on the retrospective application of Section 17A of the Prevention of Corruption Act, 1988 (PC Act) to offences which existed before the 2018 amendment, which inserted Section 17A.

Justice Aniruddha Bose held that the mandate for previous approval under S. 17A would apply retrospectively. Justice Bela Trivedi disagreed.

Section 17A was introduced by an amendment with effect from July 26, 2018, and the provision stipulates a mandatory requirement for a police officer to seek prior approval from the competent authority for conducting any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the Prevention of Corruption Act (PC Act).

In the present case, the offences alleged against Naidu related to a period before the 2018 amendment.  He sought to quash the investigation for the PC Act offences on the ground that it was launched without the prior approval under Section 17A.

Point of commencement of enquiry

The first issue was what was the point of commencement of enquiry. The State contended that the enquiry started by a letter dated 05.06.2018 (i.e. before the 2018 amendment became operational on 26.07.2018) and hence Section 17A was inapplicable. However, Naidu contended that the enquiry started only after the registration of the FIR on 09.12.2021.

As per letter dated 05.06.2018, the Director General of the Anti­-Corruption Bureau ordered DSP, CIU, ACB, Vijayawada to conduct a Regular Enquiry into the complaints against the APSSDC, which were highlighted in an earlier letter dated 14.05.2018 addressed to the ACB by the Director General of GST Intelligence, Pune.  

On this aspect, Justice Bose while explaining the meaning of enquiry, inquiry or investigation, declined to hold that the letter dated 05.06.2018 initiated the enquiry. To this effect, Para 13 of the Bose J., judgment is meaningful:

“In ordinary perception, “enquiry” by a police officer would imply positive exercise for searching certain details or particulars pertaining to allegations of commission of an offence by an accused person or a set of accused persons. “Inquiry” is defined in Section 2 (g) of the 1973 and implies inquiry conducted under the Code by a Magistrate or Court. Similarly, “investigation” in terms of Section 2 (h) of the same Code includes all the proceedings conducted thereunder for collection of evidence by a police officer or a person authorised by a Magistrate in that behalf. The nature of actions undertaken by the State after 05.06.2018 constitutes neither inquiry nor investigation, as no step under the 1973 Code was taken by the State prior to the year 2021. If that is the meaning attributed to this expression, the letter of 05.06.2018 or the earlier letter from taxing authority dated 14.05.2018 cannot be construed to be the commencing point of any enquiry. These were requests for starting an enquiry, which obviously did not commence prior to the aforesaid dates in the year 2021. Thus, on this point I cannot accept the finding of the High Court that a regular enquiry was already initiated on 05.06.2018.”

"A request to conduct an enquiry by itself cannot be the starting point of the enquiry under the said provision to bypass the restriction postulated therein. Moreover, in the facts of this case, actual search for information had commenced in the year 2021," Justice Bose added.

Justice Trivedi took a different view on this aspect by relying on the Standard Operating Procedures (SOPs) issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel& Training) dated 3rd September, 2021 for processing of cases under Section 17A, to hold that “Enquiry” means any action taken, for verifying as to whether the information received by the Police Officer pertains to the commission of an offence under the Act. Meaning thereby, the letter dated 05.06.2018 suggests that the enquiry was initiated from the date of the letter and not from the date of registration of FIR dated 09.12.2021.

Whether a prior sanction is required to initiate the proceedings against public servant qua alleged offences committed before the coming into effect of Sec. 17A of PC Act?

According to Justice Bose, going by the plain language of Section 17A, no enquiry, inquiry or investigation under the PC Act cannot be launched without the prior approval under Section 17A. Here, the investigation commenced after Section 17A became operational. Hence, the mandate of Section 17A has to be fulfilled.

 “Section 17A does not distinguish between alleged commission of offence prior to 26.07.2018 or post thereof. This provision stipulates the time when any enquiry, inquiry or investigation is commenced by a police officer,” Justice Bose said.

It was pleaded by the State that no previous approval is required to initiate the proceedings against the Naidu for the offence committed under the PC Act because S. 17A wasn't came into force when the alleged offences was committed by Naidu. However, while refuting such claim of the state, Bose J. has given a retroactive application to S. 17A by holding that the point of time Section 17A of 1988 Act would become applicable is the starting point of enquiry, inquiry, or investigation and not the time of commission of the alleged offence.

Justice Bose also noted that the deletion of certain offences from the PC Act by the 2018 amendment was immaterial as Naidu was being proceeded against for the offences which existed in the statute book pre-2018.

He added :

"The wording of Section 17A restricts the power of a police officer to conduct any of the three acts into any offence by a public servant “under this act”. Thus, if the process of enquiry commences at a time attracting specific provisions of the 1988 Act which stand deleted by the Amendment Act of 2018, the restrictive protection in form of Section 17A ought to be granted. The phrase “under this act”, on such construction ought to include offences which were in the statue book at the time the subject­ offences are alleged to have been committed."

Thus, it was noted by Bose J., that the steps taken against Naidu under the 1988 Act ought to be invalidated as the same did not commence with prior approval as laid down under Section 17A of the 1988 Act, as S. 17A has already came into force when the FIR against Naidu was first registered on 09.12.21.

However, adopting a different view Trivedi J., noted that that prior approval in terms of Sec. 17A is not required to initiate the proceedings under the Act against Naidu. According to her, Section 17A is required to be treated as a substantive and not merely a procedural in nature. If S. 17A of the Act is being made applicable retrospectively or retroactively, then it would frustrate the purpose of the Act to penalize the dishonest and corrupt public servant. Therefore, it is required to be presumed that the intention of the legislature was to make Section 17A applicable only to the new offences as amended by Amendment Act, 2018 and not to the offences which existed prior to the coming into force of the Amendment Act 2018.

“It cannot be the object of Section 17A to give benefit to the dishonest and corrupt public servants. If any enquiry or inquiry or investigation carried out by a police officer in respect of the offence committed by a public servant is held to be non est or infructuous by making Section 17A retrospectively or retroactively applicable, the same would not only frustrate the object of the PC Act but also would be counter-productive.”, observed Trivedi J.

Further Trivedi J., explained that how the construction of a statute needs to be construed.

“The cardinal principle of construction is that every statute would have prospective operation, unless it is expressly or by necessary implication made to have a retrospective operation. There could not be a presumption against the retrospectivity. In the instant case, the Amendment Act, 2018, by which Section 17A was inserted, was specifically made applicable with effect from 26.07.2018 by the Central Government vide the Notification of the even date. Hence, the intention of the Legislature was also to make the amendments applicable prospectively from a particular date and not retrospectively or retroactively.”, explained Trivedi J.

According to Trivedi J., the alleged offence(s) committed by Naidu are before the commencement of S.17A of the Act, thus the requirement of previous approval to prosecute Naidu under S. 17A doesn't arise.

“Having considered the different contours of Section 17A, I am of the opinion that Section 17A would be applicable to the offences under the PC Act as amended by the Amendment Act, 2018, and not to the offences existing prior to the said amendment. Even otherwise, absence of an approval as contemplated in Section 17A for conducting enquiry, inquiry or investigation of the offences alleged to have been committed by a public servant in purported exercise of his official functions or duties, would neither vitiate the proceedings nor would be a ground to quash the proceedings or the FIR registered against such public servant.”, noted Trivedi J.

Case Details

Nara Chandrababu Naidu v. State of Andhra Pradesh & Anr. | Special Leave Petition (Criminal) No. 12289 of 2023

Citation : 2024 LiveLaw (SC) 41

Click here to read the judgment