Yediyurappa Case | S.17A PC Act Sanction Not Needed If Court Has Ordered Investigation Under S.156(3), Says Supreme Court During Hearing

While hearing the cases concerning former Karnataka Chief Minister BS Yediyurappa, the Supreme Court on Friday (February 28) pondered on the application of the 2018 amendment to the Prevention of Corruption Act, which inserted a provision mandating prior sanction even for investigation.

The Court orally remarked that once a Court has passed an order for investigation under Section 156(3) CrPC, the need for prior sanction under Section 17A of the PC Act will not arise. The Court asked whether, after an order for investigation is passed by the Court, can the investigating officer defer the investigation, saying that sanction from the Government was required?.

A bench of Justices JB Pardiwala and Manoj Misra is currently hearing five cases, arising from different factual backgrounds, registered against former Minister B. S. Yediyurappa under the Prevention of Corruption Act, 1988.

A common issue arises in these matters which is whether prior sanction was required to take cognisance against the former Chief Minister, and whether the position of law post the 2018 amendment makes any difference.

Senior Advocate Siddharth Luthra, for Yediyurappa, briefly outlined the background. First, a private complaint against the former CM, when he was still holding office, was quashed for the lack of sanction. Second, since the first complaint was quashed, the second complaint was not maintainable considering that the allegations were the same. He added that the first order had attained the finality and it was never challenged. Further, the second complaint was also not maintainable because the former CM was no more a public servant.

He said: "You now make a false averment. In the first complaint, you describe me as the former Chief Minister. Say, I was holding office. In the second complaint you go and file a complaint alleging that at that time, I ceased to hold the office...He reiterates the same [as of the first complaint] except this time, the Special Judge catches him and the High Court reverses it. Special judge says, this is what you said in the first round, the averments were no different...You make the first averment, you were not a Chief Minister then and you are not a Chief Minister now. You lost and you are trying to overcome the earlier High Court judgment by filing a fresh complaint, I will not allow you to do it."

Here, the second complaint was dismissed by the Trial Court in 2016. However, the Karnataka High Court in 2021 set aside the Trial Court's order and revived the second complaint.

Luthra added that the High Court erred in not just restoring the complaint but also acting ignorant of the change in position of law after 2018. Post-2018, after a public servant has demitted the office, prior sanction is required under the PC Act.

On this, Justice Pardiwala asked: "It all started with a private complaint and there was an order of Section 156(3) CrPC. Your first argument was this order of Section 156(3) itself amounts to taking cognisance. Therefore, without sanction, this order could not have been passed...Order under Section 156(3), as we have known since 1960, is an interlocutory order. But a chargesheet came to be filed so, at least at that point of time sanction is required or not?...Why are we discussing this issue? The chargesheet is gone, so he should not go on the premise that the investigation is bad. He should go on the premise that on the date the cognisance was taken on the chargesheet, there was no sanction. The problem is, the date on which the cognisance was taken, they were not holding the public office." 

On sanction, Justice Pardiwala said: "Complaint based on the ground of sanction, ordinarily the Court would say obtain the sanction.Therefore, if you are able to obtain the sanction, you can proceed further and therefore, the second complaint may be maintainable. This is on technical point and not on merits."

Luthra answered that there are now a plethora of judgments which say one cannot obviate the sanction and wait until the public servant demits the office.

Justice Pardiwala stated that since the complaint was restored, we are again back to the stage of Section 156(3). He said: "Now, when the chargesheet will be filed, that will come to take cognisance. At that stage, whether Section 19(1)(a) will be set in or not?" [Section 19 of the Prevention Act talks about the need for prior sanction]

Luthra answered that now, the threshold of Section 17A needs to be met.  

Justice Pardiwala asked: "Is it your argument that Section 17A will come into play even after an order is passed by a competent court?...Our understanding is, that Section 17A will not come into play when there is an order passed by a competent Court for investigation under Section 156(3)CrPC...Order of the Magistrate will be kept aside for the time being and the IO will say, I will first seek approval of the State Government and only then the investigation?"

Whether Section 17A has a retrospective effect is an issue pending before a three-judge bench.

Senior Advocate Vikas Kumar, representing one of the Respondents, here referred to the recent judgment of the two-judge bench of the Supreme Court dismissing Union Minister MP HD Kumaraswamy's plea seeking quashing of the alleged corruption cases against him. He stated that both judges have opined on consensus that Section 17A will not apply retrospectively.  

The arguments will continue on another day.

Case Details: B.S YEDDIYURAPPA v. A ALAM PASHA AND ORS., SLP(Crl) No. 520/2021 and others