Chandrababu Naidu's Case: Can Section 17A Be Interpreted In A Manner Defeating Purpose Of PC Act? Supreme Court Asks Harish Salve

While hearing former Andhra Pradesh Chief Minister Chandrababu Naidu's plea, the Supreme Court on Monday (October 9) asked if the Court can adopt an interpretation of Section 17A of the Prevention of Corruption Act 1988 which will defeat the objectives of the Act.

Section 17A, inserted after the 2018 amendment made to the PC Act in July 2018, mandates that prior sanction from the competent authority must be obtained before launching an investigation against a public servant. Naidu is challenging his arrest in connection with the skill development scam case on the ground that the Andhra Pradesh Crime Investigation Department (AP-CID) has not obtained the sanction of the Governor before adding him as the 37th accused in the case.

Senior Advocate Harish Salve, appearing for the Telugu Desom Party chief and the Opposition Leader of Andhra Pradesh, argued that Section 17A is inserted to curb the instances of "regime revenge".

The hearing last week revolved mainly around the applicability of Section 17A of the Prevention of Corruption Act, 1988, with the Justice Bose-led bench raising questions about whether the provision would apply to an offence predating the 2018 amendment that introduced it. The court also questioned whether Section 17A would be applicable when the FIR mentioned offences under both the Prevention of Corruption Act and the Indian Penal Code, 1860. A battery of lawyers - including senior advocates Harish Salve, Abhishek Manu Singhvi, and Sidharth Luthra - appearing for Naidu, argued that Section 17A should be applicable since the inquiry commenced after the 2018 amendment, regardless of the date of the offence. On the contrary, the State, represented by Senior Advocate Mukul Rohatgi, contended that the inquiry began before 2018. The hearing was finally adjourned with an instruction to the state government to provide the entire compilation of documents submitted to the high court.

Salve made the following arguments on behalf of the Petitioner before the Apex Court today: 

Enquiry Commenced In 2021 Therefore Section 17A of the PC Act Is Applicable To The Case

Salve argued that with regard to Section 17A of the PC Act, the amendment would apply retrospectively. He also sought to establish that the enquiry against Naidu commenced only in 2021 and hence Section 17A of the PC Act would be applicable to the case. He refuted the State's claim that the enquiry commenced before the 2018 amendment.

Salve referred to the remand order and pointed out that it records that the case was based on a preliminary enquiry in 2021. So, any inquiry or investigation launched against a public servant after the 2018 amendment will require sanction under Section 17A, regardless of the date of the offence.

He argued that the submission of the State that the inquiry started before the 2018 amendment (which introduced Sec 17A) is factually wrong.  "It was not the inquiry which led to this FIR. It appears some inquiry was done, which was folded up. Thereafter, a fresh enquiry was done".

He argued that S. 17A of the PC Act was introduced to prevent cases where a person is politically targeted after the change of a regime.

He also submitted that in the remand report, it was said that though there was an earlier complaint, nothing was done.  

Salve also told the Court that High Courts are divided on the question of the applicability of Section 17A . Some High Courts have taken the view that S.17A must follow the date of offence, some other High Courts have taken the view that S.17A must follow the date of the FIR, he submitted. He also referred to the recent judgment of the Supreme Court in Pankaj Bansal V Union of India to argue that if the arrest is illegal, then the subsequent remand order will not validate an illegal arrest.

Need Approval For Investigation Under Section 17A of the PC Act

Salve contended that prior to adding Naidu as an accused, the permission of the Governor ought to have been taken. 

"Even if you had 17A approval at inquiry stage, you need approval again for investigation" he said.

Salve argued that there is an Standard Operation Procedure published by Government of India on how S.17A of the PC Act is to be applied. "They have said that at every stage permission is to be taken" he said. There is a mandatory requirement for a police officer to seek prior approval for conducting any inquiry or investigation, he pointed out. "This is the Standard Operating Procedure. Of course, it is not binding on the Court. But it will help in understanding the interpretation," he said. 

Justice Trivedi remarked that while interpreting S.17A, the main objective of the Act which is the prevention of corruption, must be considered. "We can't adopt an interpretation which will frustrate the objective of the Act," she said. 

 "...S.17A strengthens the Act itself. On the one hand, It allows the public servant to act freely. And you have a person seeing if the investigation is done fairly. This Act has to be enforced vigorously. But with a check that the police officer must report to a higher official that I am prosecuting so and so," Salve responded. 

Complaint Has Nothing To Do With Naidu

Salve also argued that the contents of the complaint had nothing to do with the former Andhra CM. He submitted that complaint dated 7th September 2021 was against Siemens, Design Tech etc. alleging they swindled public money.

"There was a company called Design Tech. Design Tech obtained GST credits from a company called Skill Tech. The complaint relates to some GST credit which Design Tech took from Skill Tech", he said. 

State Produced Documents Before High Court After Judgement Was Reserved

Salve also said that after the judgment was reserved by the High Court of Andhra Pradesh on September 19, the State filed certain documents on September 20 to purportedly show that the inquiry in the matter commenced before the 2018 amendment to the PC Act.

"Mr.Salve, if your case is that some document was produced after the argument was over, you did not have any opportunity to counter the document. So the Court did not have the benefit of full submissions. So without entering into merits, should we send back.." Justice Trivedi asked Salve. 

However, Salve did not press for the matter to be sent back to the High Court since the High Court had taken the view that it is the date of the offence which matters for S. 17A to apply. "Sending back will not help me as the HC judge says date of offence matters for Sect 17A. So the judgment does not turn on the document. I was showing the document because the other side is now arguing that the enquiry started before 2018".

The matter has been posted for further arguments tomorrow (10.10.2023).