Section 17A of Prevention of Corruption Act Not Retrospective; Not Applicable To FIRs Before 2018 Amendment: Supreme Court

Section 17A of the Act came into force on 26th July 2018, and provides that there cannot be any enquiry, inquiry, investigation without prior approval of the appropriate authority.

Justice Indira Banerjee and Justice J.K. Maheshwari, while allowing the appeals, ruled,

"In his usual fairness, learned Senior Counsel appearing on behalf of the respondent does not seriously dispute the proposition of law that Section 17A does not have retrospective operation. Learned Senior Counsel, however, argues that the Court might have looked into the merits and, in particular, the fact that investigation had ultimately been closed. We need not go into that aspect since the High Court has quashed the proceedings only on the ground of permission not having been obtained under Section 17A of the PC Act."

Essentially, these appeals are filed against the final judgment dated 07.04.2020 passed by the Rajasthan High Court, allowing the respondent's plea and thereby quashing FIR registered against him under Section 13(1)(g) and 13(2) of the PC Act read with Sections 420, 467, 468, 471 and 120B of IPC. FIR was quashed on the ground that the Investigating Authorities had failed to obtain previous approval of the State Government under Section 17(A) of the PC Act before registering the said FIR against the accused persons.

Notably, the FIR was registered on 1 January 2018 before the said provision came into force. The main question involved in these appeals is whether Section 17A of the PC Act would apply to an investigation which had commenced before Section 17A was enacted/enforced.

The Supreme Court also ruled,

"Leave granted. The appeals are allowed and the impugned judgment and order is accordingly set aside in terms of the signed order. Pending application (s), if any, stand disposed of."

The court observed that it is settled principle of interpretation that the legislative intent in the enactment of a statute is to be gathered from the express words used in the statute, unless the plain words literally construed give rise to absurd results. The court further observed that it has to go by the plain words of the statute to construe the legislative intent. It could not possibly have been the intent of the legislature that all pending investigations upto July, 2018 should be rendered infructuous, added the court.

The court opined that It is a cardinal principle of construction that every statute is prospective, unless it is expressly or by necessary implication made to have retrospective operation and there is a presumption against retrospectivity. The court added that an express provision should ordinarily be made to make a statute retrospective,

Relying on Akram Ansari vs. Chief Election Officer (2008) 2 SCC 95, the court noted that presumption against retrospectivity may also be rebutted by necessary implication. The court observed that Akram Ansari was also relied on by Kerala High Court in K.R. Ramesh vs. Central Bureau of Investigation (2020) The court remarked that the device of a legal fiction can also be used to introduce retrospective operation. It added that it is generally considered that every statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made retrospective.

Further reliance was placed by the court on Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602, where it was held that a statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation unless otherwise provided either expressly or by necessary implication. The court pursued that both Section 17A and Section 19 do not contain any express provision to show that they are retrospective in nature, nor it is so discernable by implication. The court noted that aforesaid observation was also followed by the Karnataka High Court.

The court also relied on GJ Raja vs. Tejraj Surana (2019) 19 SCC 469, as submitted by Adv. Saurav Roy, counsel appearing on behalf of the appellant. In GJ Raja, it was held that a statute which affects substantive rights is presumed to be prospective in operation unless made retrospective and unless textually impossible a statute which merely affects procedure is presumed to be retrospective. It was added that, however, a statute which not only changes the procedure but also creates new rights or liabilities is to be construed to be prospective in operation, unless otherwise provided either expressly or by necessary implication.

It was noted by the court that in State of Telangana v. Managipet alias Mangipet Sarveshwar Reddy 2019 (19) SCC 87, this Court rejected the arguments that amended provisions of the PC Act would be applicable to an FIR, registered before the said amendment came into force and found that the High Court had rightly held that no grounds had made out for quashing the proceedings.

Case Title: State of Rajasthan v. Tejmal Choudhary

Case No.: CRIMINAL APPEAL NO. 1647 OF 2021

Citation : 2022 LiveLaw (SC) 158

Counsels for Petitioners: Mr. Sourav Roy, Adv. Mr. Kaushal Sharma, Adv. Mr. Prabudh Singh, Adv. Ms. Malavika Kala, Adv. Mr. Nishanth Patil, AOR

Corum: Justice Indira Banerjee and Justice J.K. Maheshwari

Counsels for Respondents: Mr. Vishwa Pal Singh, AOR Mr. Dinesh Kumar Mudgal, Adv. Mr. Vikas Gothwal, Adv. Ms. Kiran Bala Dewangan, Adv. Mr. Jhingan Ashwani Omprakash, Adv. Mr. Brijender Singh Dhull, Adv. Mr. Surjeet Singh, Adv. Mr. Y.P. Singh, Adv. Mr. Vipul Maheshwari, Adv. Dr. Amardeep Gaur, Adv., M/S. V. Maheshwari & Co., AOR Mr. Brijender Chahar, Sr. Adv. Mr. Ronak Karanpuria, AOR Mr. Sumit Sharma, Adv. Mr. Gobind Kumar, Adv. Mr. Gp. Capt. Karan Singh Bhati, AOR Ms. Chitrangada, Adv. Mr. Manvinder Singh, Adv. Ms. Gunjan Negi, Adv. Mr. Dashrath Singh, Adv. Mr. Aditya Chauhan, Adv.