This Section has become the source of confusion and multifaceted interpretations with regard to its applicability to pending actions in respect of offences committed prior to the incorporation of new offences under Amending Act 16 of 2018. My humble endeavour is to steer clear of any lingering doubt in this area. Some of the propositions of law are too well known that they continue to be immutable.
- The law as it existed at the time of commission of the offence would govern the rights and obligations of the parties. Section 42 (2) of NDAS Act, 1985 which directed that the information in writing should be given to the official superior forthwith was amended with effect from 02-10-2001 to say that the information need be given within 72 hours only. Where the trial was on 04-07-1998, (which was prior to the amendment) the S.C held that the un-amended Section 42(2) insisting on the giving of application forthwith, would apply.
(Vide Suckdev Singh v. State of Haryana (2013) 2 SCC 212 at pages 219 to 222)
(2) It is a cardinal principle of construction that every statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation.
(vide Keshavan Madhava Menon v. State of Bombay - AIR 1951 SC 128 at page 130; Janardhan Reddy and Others v. State - AIR 1951 SC 124 at page 127; Mahadeolal Kanodia v. Administrator General of West Bengal - AIR 1960 SC 936 at page 939; State of Bombay v. Vishnu Ram Chandra - AIR 1961 SC 307 at page 309; Arjan Singh and Another v. State of Punjab and Others -AIR 1970 SC 703 at page 705; New Theaters (Carnatic Talkies) Ltd, Coimbatore v. N. Vajrapani Naidu - AIR 1984 SC 1; Mithilesh Kumari v. Prem Bihari - AIR 1989 SC 1247 at page 1253; State of M.P. and Others v. Rameshwar Rathod - AIR 1990 SC 1849; Zile Singh v. State of Haryana and Others - AIR 2004 SC 5100 at page 5103; C. Gupta v. Glaxo-Smithkline Pharmaceuticals Ltd. - (2007) 7 SCC 171; Yadav J.S v. State of U.P and Another - (2011) 6 SCC 570 para 24; Monnet Ispat and Energy Ltd. v. Union of India and Others - (2012) 11 SCC 1 at page 90.
(3) The above proposition of law is based on the Latin maxim -
nova constitutio futuris formam imponere debet non praeteritis – (a new law ought to regulate what is to follow, not the past ; a new law ought to be prospective and not retrospective).
(vide Purbanchal Cables and Conductors Pvt. Ltd. (M/S) and Others v. Assam State Electricity Board and Another-(2012) 7 SCC 462; Monnet Ispat and Energy Ltd. v. Union of India and Others - (2012) 11 SCC 1).
(4) The rule that an Act of Parliament is not to be given retrospective effect apples only to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure of the admissibility of evidence or the effect which the courts give to the evidence (vide Blyth v. Blyth – (1966) 1 All ER 524 at page 535).
(5) In contrast to statutes dealing with substantive rights, statutes dealing with merely matters of procedure, are presumed to be retrospective unless such a construction is textually impermissible. (vide Delhi Cloth & General Mills Co. Ltd v. CIT, Delhi – AIR 1927 PC 242 ; Jose De Costa v. Bascora Sadashiva Sinai Narcorium – AIR 1975 SC 1843; Gurbachan Singh v. Satpal Singh – AIR 1990 SC 209; Hitendra Vishnu Thakur v. State of Maharashtra – AIR 1994 SC 2623 – para 25 (i). If the new Act affects matters of procedure only, then prima facie, it applies to all actions pending and future (vide A. G v. Vernazza – (1960) 3 All ER 97 at page 100; K. Eapen Chako v. Provident Investment Company (P) Ltd – AIR 1976 SC 2610 at page 2617).
(6) A statute which not only changes the procedure but also creates new rights and obligations shall be construed to be PROSPECTIVE unless otherwise provided either expressly or by necessary implication (vide Hitendra Vishnu Thakur v. State of Maharashtra – AIR 1994 SC 2623 at page 2641; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar – AIR 1999 SC 3609 at page 3614; Shyam Sunder v. Ram Kumar – AIR 2001 SC 2472 at page 2482).
(7) Benefit of mollification of the rigour of the sentence under an existing penal statute can be retrospectively applied. (vide Ratton Lal v. State of Punjab AIR 1965 SC 444; State v. Gian Singh AIR 1999 SC 3450)
(8) Applicability to pending proceedings
Courts have leaned very strongly against applying a new law to pending proceedings unless the language is sufficiently clear.(vide United Provinces v. Atiga Begum AIR 1941 FC 16; K.S. Paripoornan v. State of Kerala AIR 1995 SC 1012; State of Punjab v. Bhajan Kaur AIR 2008 SC 2276 - para 18)
The mandate of Section 6 of General Clauses Act, 1897, is simply to leave unaffected the pending proceedings commenced under the repealed provisions unless a contrary intention is expressed. (vide Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal and Co. - (2001) 8 SCC 397).
My view regarding new Section 17-A
In the light of the judicial pronouncements referred to above, what is, therefore, to be examined is the Amending Act as a whole and not any particular Section thereof. If the purport of the amending statue as a whole is to create new liabilities, then just because a provision thereof provides for a condition precedent before commencing inquiry or investigation by the police, it cannot be argued that the statute as a whole deals with the procedure only so as to conclude that it has retrospective operation and applies to pending matters as well. First of all, no procedure regarding enquiry, inquiry or investigation by a police officer is dealt with by Amending Act 16 of 2018. All that the new Section 17A provides for is a pre-condition for the commencement of enquiry, inquiry or investigation and a time limit for complying with the said pre-condition. Moreover, the section applies only to an enquiry, inquiry or an investigation into an offence under the Act (as amended). Almost all the offences such as new Sections 7, 7A, 8, 9, 10 12, 13, 14 and 15 under Amending Act 16 of 2018, are new offences different from the existing offences. So, the Amending Act dealing with substantive rights cannot, by any standard, be taken as procedural in nature so as to be applied to pending matters involving the existing offences. Even on the face of new Section 17-A what it prohibits is an enquiry, inquiry or investigation by a police officer.
Supposing a complaint alleging corruption against a Minister or a former Minister or a public servant is lodged before an officer in charge of a Vigilance Police Station or a CBI Unit Office after 26-07-2018, the SHO has the following options under new Section 17 A :-
- If the allegations in the complaint make out a cognizable offence, then register an FIR. (But, after registering the FIR he cannot commence investigation without the previous approval of the appropriate authority under sub-section (1) of Section 17 A).
- If the allegations in the complaint do not make out a cognizable offence, he has to conduct a preliminary inquiry. (But he cannot conduct the inquiry without the previous approval of the appropriate authority under Section 17 A (1).
In either of the above cases, the previous approval is going to be a time-consuming process. The authority competent to grant previous approval may also decline to grant the approval in which case the complainant will be driven to the necessity of challenging the order of the authority who has declined to grant the approval. If ultimately he succeeds in getting a favourable order from the Court. The Court will not grant the approval but will only direct the authority to reconsider the question of approval. There again the complainant is bound to lose further time. This is the effect of introducing Section 17 A to the P.C. Act, 1988. This previous approval is a new insulation of protection extended to public servants over and above the protection by way of prosecution sanction after the culmination of investigation and before taking cognizance by the Court. The prosecution sanction also is a time-consuming process although the outer limit for the same has been stipulated by Judge-made law. There again, there is the possibility of the benign and benevolent Government refusing prosecution sanction. In that event also the complainant will be driven from pillar to post in his anxiety to secure prosecution sanction by moving the Court. Are these measures to expedite trial in corruption cases ? It may not be an exaggeration to say that this enactment, after the 2018 amendment, may pre-eminently be called the "Promotion of Corruption Act" rather than "the Prevention of Corruption Act". With the amendment and insertion of Section 17 A, far from expedition, what has been introduced is circumlocution which defeats the very purpose of the statute.
We will now examine whether Section 17 A applies even in cases where the Court were to order a preliminary inquiry or registration and investigation or further investigation of a case.
If a Criminal Court were to order investigation or further investigation under Section 156 (3) Cr.P.C or under Section 173 (8) Cr.P.C at the pre-cognizance or post-cognizance stage, I do not think that the interdict on the police officer under new Section 17-A can operate. (In this context, I have my own reservations on the judicial pronouncements which say that a Criminal Court cannot suo motu order further investigation under Section 173 (8) Cr.P.C after commencement of trial by framing the charge. To my knowledge, the verdict of the Supreme Court of India in Hemant Dhasmana v. CBI – (2001) 7 SCC 536 = AIR 2001 SC 2721 to the effect that when a Criminal Court orders further investigation under Section 173 (8) Cr.P.C, the Court is really triggering into motion the powers of the police under Section 173 (8) Cr.P.C, has not been dissented from or overruled so far. Hence, if the police can initiate further investigation under Section 173 (8) Cr.P.C either at the pre-cognizance stage or at the post-cognizance stage, there is no reason why the Court cannot suo motu trigger into motion the power of the police under Section 173 (8) Cr.P.C even at the post-cognizance stage or after the commencement of trial ex debito justiciae). Similarly, if the Court were to order the officer-in-charge of a police station ("SHO" for short) to conduct a preliminary inquiry and based on such inquiry to register or not to register a crime, it may be puerile to argue that the interdict under Section 17-A is attracted.
The new Section 17-A appears to be too vulnerable to withstand judicial scrutiny. After the decision of the Apex Court in Vineet Narain v. Union of India – (1998) 1 SCC 226 = AIR 1998 SC 889, it is not open to the Government or to anybody else to interfere with the freedom of the SHO in the matter of mandatory registration of a cognizable offence, commencement of investigation and finally arriving at the decision as to whether the accused should or should not be placed for trial. New Section 17-A does interfere with the above freedom of the SHO. If the said provision is sought to be justified as a measure of safety for the public servant, it is pertinent to note that there are sufficient safeguards such as preliminary inquiry (vide T. Sirajuddin v. State of Madras – AIR 1971 SC 520 – the scope of which has been misinterpreted in Lalita Kumari's case) at the pre-registration stage and then the protective insulation in the form of prosecution sanction under Section 19 of the P.C Act, 1988. New Section 17-A runs counter to the provisions of Cr.P.C which, in the absence of any special provision in the P.C Act, governs the procedure to be followed by the police. This Section appears to have been introduced by way of colourable exercise of power with a view to circumvent the binding verdict of the Constitution Bench of the Supreme Court of India in Subaramanyan Swamy (Dr) v. Director, CBI and Another – (2014) 8 SCC 682 = AIR 2014 SC 2014 – 5 Judges) wherein Section 6 (A) (1) of the Delhi Special Police Establishment Act, 1946 was struck down as violative of Article 14 of the Constitution of India. This is discernible from the "Statement of Objects and Reasons" given for the Amending Act. This new Section 17-A also inhibits the mandate of speedy trial guaranteed under Article 21 of the Constitution of India since the right to speedy trial is available even at the stage of investigation (vide Vakil Prasad Singh v. State of Bihar - (2009) 3 SCC 355; Dilawar v. State of Haryana – 2018 (2) KHC 868 (SC). If the media reports are to be believed, the Vigilance Department in the State of Kerala is filing reports in the High Court of Kerala to the effect that there is corruption in the discharge of duties by certain specified public functionaries, past and present, but unfortunately, the department is helpless in registering a crime and commencing investigation for want of prior approval by the Government. This is a sorry state of affairs and the High Court which is a Constitutional Court, cannot and should not abdicate its duty of examining the legality and vires of Section 17 A.
Meaning of the words "where the alleged offence is relatable to any recommendation made or decision taken by the public servant in discharge of his official functions or duties" in new Section 17-A
I am really at a loss to understand the meaning of the above words occurring in new Section 17-A. The Section does not say whether the recommendation or decision should be in writing. So, the recommendation or decision can be oral as well. One cannot conceive of an offence by a public servant without conveying his decision (oral or written) to the bribe-giver or to the abettor about his willingness to take bribe or without making known his intention to influence another public servant for the exercise of public duty. Likewise, if a public servant were to illicitly enrich himself, then without taking a decision in that behalf and conveying his inclination to the potential bribe-giver, it may not be possible to say that the offence of unlawful enrichment under Section 13 (1) (b) is not relatable to any decision taken by him so as to exclude the operation of new Section 17-A. The demand or acceptance of undue advantage by a public servant after performance or non-performance of the public duty falling under new Sections 7(b) and 7(c), the abetment by a public servant punishable under Section 12 of an offence punishable under new Section 7-A, the abetment by a public servant under Section 12 of an offence punishable under new Section 8, an abetment by a public servant under Section 12 of an offence punishable under new Sections 9 and 10, the obtaining of undue advantage by a public servant under new Section 11, an offence punishable under new Section 13 (1)(a) are all relatable to any recommendation made or decision taken, orally or in writing by the public servant in the discharge of his official functions. Similarly, an oral or written recommendation by a public servant can be the cause for the receipt of an undue advantage by a public servant. Shrewd public servants always make it a point to ensure that there is nothing in writing by them either by way of notings in the file or otherwise, giving room for anybody to catch them. Probably, an offence falling under new Section 7(a) before the actual acceptance of undue advantage and an offence punishable under new Section 13(1)(b) and all offences committed by a public servant in his private capacity may not attract new Section 17-A. All other offences may attract new Section 17-A necessitating the previous approval of the Government or the other authority mentioned in the Section. No attempt also has been made to specify the offences covered by new Section 17-A. In my humble view, the above words do not have the character of excluding any particular class or category of offences from the applicability of new Section 17-A. In the absence of an intelligible differentia discernible from those words, a conclusion that arbitrariness and unreasonable classification are writ large in the above wording of new Section 17-A, is irresistible. There is also the possibility of abusing the provision if the public servant were to indulge in a collusive affair with any of his confidants. There can be a collusive private complaint against a public servant alleging the commission of some of the amended offences requiring approval by the appropriate authority under Section 17 A and the complainant may take leave for obtaining the previous approval of the authority and thereafter disappear.
To sum up -
- subject to the vulnerability of new Section 17-A to be struck down as a provision impeding speedy trial,
- subject to the vulnerability of new Section 17-A to be struck down as a measure to resurrect Section 6-A (1) of Delhi Special Police Establishment Act, 1946 in a different form without any intelligible differentia with a view to get over the binding verdict of the Constitution Bench in AIR 2014 SC 2014,
- subject to the vulnerability of new Section 17-A to be struck down as a provision which is ex facie discriminatory and devoid of sufficient guidelines,
- subject to the vulnerability of new Section 17-A to be struck down as a provision capable of misuse as indicated above,
new Section 17-A–
- is applicable only to Investigation, inquiry, enquiry etc. by a police officer in respect of the new offences under P.C Act, 1988, other than the offences punishable under new Sections 7(a) and 13(1)(b) and in trap cases.
- is applicable only to investigation, inquiry or enquiry by a police officer without any order of Court.
- is applicable only to prosecutions for offences other than new Sections 7(a) and 13 (1)(b) under the P.C Act, 1988 as amended and in trap cases, but is not applicable to pending investigations, inquiries, prosecutions and trial in respect of old offences.
- is not applicable to investigation, inquiry or enquiry by a police officer in compliance of an order of Court.
Justice V Ramkumar is a Former Judge at the High Court of Kerala.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]