Chandrababu Naidu Victim Of 'Regime Revenge', FIR Needs Prior Sanction As Per Sec 17A PC Act : Harish Salve To AP High Court

The Andhra Pradesh High Court today reserved judgment in the quashing plea filed by former state Chief Minister and Telugu Desam Party leader N Chandrababu Naidu in connection with the multi-crore corruption in Andhra Pradesh skill development program scam case. Naidu has also sought cancellation of his judicial remand.

The matter was heard by a Bench of Justice K. Sreenivas Reddy.

Senior Advocates Harish Salve and Siddharth Luthra appearing for Naidu submitted that sanction to prosecute Naidu under the Prevention of Corruption was not obtained. It was also submitted that no case is made out against Naidu since the project in question was up and running and it could not be said that public money was misappropriated.

State on the other hand argued that no sanction was required in the case since inquiry was initiated in 2018, prior to passing of the Amendment Act which made provision for sanction. Moreover, it is alleged that Naidu, when he was in power, was aware that the project cost was inflated and yet he proceeded with it in partnership with a private entity Siemens, thereby causing loss to public exchequer.

However, petitioner argued that Central agencies had approved the valuation of the project. "If a reading of the FIR shows that no allegation was shown, the might of the State cannot be used to put somebody down,” it was submitted.

Naidu was arrested on September 9 at Nandyal in Andhra Pradesh by the State police’s crime investigation department (CID). Earlier, Anti-Corruption Bureau (ACB) Court had found a prime facie case against the former CM under the charges of cheating, criminal breach of trust, forgery and corruption and sent him to 14 days of judicial custody. His application for house remand was also rejected. However, Andhra Pradesh High Court, on September 13, directed the Special ACB Court judge to not insist on seeking a counter from Naidu.

Arguments Advanced By Petitioner

Naidu has pleaded that the trial court’s order sending him to remand was passed without taking into account the fact that the CID had failed to obtain prior approval from the Governor in accordance with Section 17A of the Prevention of Corruption Act (Act). The provision bars a police officer from conducting any enquiry or investigation into any offence alleged to have been committed by a public servant, 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 sanction.

At the outset Senior Advocate Harish Salve, appearing for Naidu, challenged the legality of the FIR on the ground that no permission under Section 17A of the PC Act was obtained. “Our contention is that this FIR is completely illegal. The judgements relied on by the Advocate General is wrongly interpreted... They have filed the complaint fully knowing about the provisions of Section 17A of the Act. They haven't taken the first step necessary to file the FIR,” he argued.

Salve also pointed that one doesn't have to currently be a public servant to attract Section 17A. The provision states "in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government", he pointed.

Pressing upon the need for sanction, Salve stated:

“This happens all the time. The law as on the date on which the action is taken is to be considered. We submit, as far as CM is concerned, Governor needs to give permission. The reason why this provision was inserted is precisely to combat the Regime Revenge Litigation”

Detailing the facts of the case, Salve submitted there was a project to establish technical skill developing centers, on the premises that 90% would be paid by private industries, and 10% by State. He averred that that State had only limited liability and majority was being brought by the private companies.

Salve claimed that 40 Skill Development Institutes were set up and 2 lakh 13 thousand students were trained in these centres. He submitted that resources of the State were utilised and the instant proceedings were only a political agenda in face of upcoming General elections. Salve said the allegations against Naidu were “hopelessly drummed up".

"They (State) are never saying that service was not rendered. They say sub-contractors did not deliver, and hence State's money is wasted. That's not for us to go into, it starts on the wrong foot."

Thus Salve urged the Court to exercise its discretionary power under Section 482 CrPC to quash the proceedings against Naidu. He cited the case of Arnab Manoranjan Goswami v. The State of Maharashtra & Ors. wherein the Apex Court observed, “High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of state power.”

Salve submitted prima facie case is not made out for judicial custody. "What is the glaring need for custody? He was cooperative. There is no doubt."

Senior Advocate Siddharth Luthra, supporting the submissions made by Salve, submitted, "My learned friends want to do away with Section 17A provision. It's a case of procedural law. And it is settled. FIR registered prior to 2018 amendment, would not be considered (for sanction). However, this FIR is not like that. It (17A) will apply to every FIR post amendment."

Luthra, for bolstering his arguments, cited the case of Kinjarapu Atchannaidu, v. The State Of Andhra Pradesh, CRL.P.No. 2479 of 2020, wherein it was held that the nature and import of Section 17-A of the Act reflect that it is procedural in nature but has ultimate effect on the prosecution.

During the afternoon session, State's counsel Mithun Rastogi made submission. The bench reserved judgment on the petition after a day long hearing of the arguments of the both side. Live updates posted from the hearing can be followed here. 

(Story compiled by Gyanvi Khanna).