'Is 17A PC Act Applicable To Offences Before 2018 Amendment?' : Supreme Court Posts Chandrababu Naidu's Plea To Quash FIR To October 9

Senior Advocate Harish Salve appearing for Naidu argued that the High Court wrongly interpreted Section 17A of the PC Act. He argued that Section 17A relates to acts done by a public servant in discharge of official functions. Section 17A was introduced by a 2018 amendment. "Learned HC judge says Sec 17A cannot be applied to offences committed before July 2018. That is simply not correct," he said. "This is pure procedure. You have to obtain sanction. It has nothing to do with the date of the offence, it has to do with the date of the inquiry. This is the protection we have brought in and the protection must kick in," he said.  

"Could this inquiry be held without the Governor's approval as per Section 17A?" Salve asked.

"According to you the date when the investigation starts is the relevant date." Justice Bose said. 

"Yes. This is done to prevent the abuse of process of law. I don't say so. The people who introduced the law says so." Salve responded. 

Senior Advocate Dr. Abhishek Manu Singhvi also appearing for Naidu referred to Justice KM Joseph's judgment in Yashwant Sinha & Ors. V. Central Bureau Of Investigation which held that Section 17A of the PC Act mandates prior approval for investigation. It was contended that the Apex Court has previously held that 17A is applicable with respect to offences committed prior to the 2018 amendment to the PC Act.  Sr. Adv. Siddharth Luthra also appearing for Naidu, submitted that in the Yashwant Sinha case, which relates to Rafale deal, the date of the alleged commission of offence was 2015-2016, which is prior to the 2018 amendment to the PC Act.

"As per remand report, the transactions spread from 2015- 2019. So at least for one year, there is an overlap (with 2018, when 17A was introduced). This is as per their remand report. So it is not a clean cut," Singhvi added. "If a benefit is given to the accused by the law, then it must be interpreted in a way to ensure that it is given," he said. 

Singhvi argued that the objective of the amendment was to give a filter of protection. "The judge notes this is a cabinet decision. So prima facie, it is in discharge of official duties," he stated. However, the Court made it clear that it does not intend to go into the merits of the matter at this stage, and that it is only considering the position of law. "We are not on merits. We are not interested in this question of official discharge," the Court said. 

"They are roping him in FIR after FIR. This is a clear case of regime revenge," Luthra added. 

"The question is whether it is applicable to offences under the Indian Penal Code or just the PC Act", Justice Bela Trivedi said at this point. Salve and Singhvi highlighted that Section 17A uses the words "any offence" and does not make any distinction between PC Act and IPC offences.

Senior Advocate Mukul Rohatgi appearing for the State of Andhra Pradesh argued that the question of Section 17A of the PC Act, does not arise in this case. "17A came in July 2018. Though the FIR is of 2021, the inquiry arose prior to the insertion of 17A," he argued. 

The bench asked if there are documents to show that the inquiry started before 2018. Rohatgi agreed to produce the relevant documents.

As the bench was adjourning the matter, Sr. Adv. Siddharth Luthra, appearing for Naidu, said, "The man is in custody, that is the difficulty. They are also seeking police custody. After 15 days, police custody can't be claimed. Tomorrow the bail is listed," he added while seeking a nearer date.

"List the matter next Monday. On that date, the caveator State shall file the entire compilation of documents which were there before the High Court," a bench of Justices Aniruddha Bose and Bela M Trivedi dictated in the order.

Last week, another bench comprising Justices Sanjiv Khanna and SVN Bhatti was scheduled to take up the matter, but the proceedings had to be adjourned after Justice Bhatti recused himself from hearing Naidu's plea. After Justice Bhatti’s recusal, the petition was mentioned before a bench led by Chief Justice DY Chandrachud for an urgent hearing. While agreeing to direct the hearing to be rescheduled for October 3, the chief justice declined Naidu’s request to restrain the trial court from dealing with the State’s application to interrogate him in police custody. Naidu is currently in judicial custody, although the state CID was granted two days of custody on September 23 and 24.

Background