Only Police Can Do Preliminary Inquiry U/S 17A PC Act, Not Governor: State To Karnataka High Court In CM Siddaramaiah's Plea Against Sanction

While hearing Chief Minister Siddaramaiah's plea against the Governor's sanction to prosecute him, the state government on Monday (September 9) told the Karnataka High Court that the preliminary inquiry under Section 17A of Prevention of Corruption Act could have been conducted by the police only and not the Governor. 

A single judge bench of Justice M Nagaprasanna was hearing the CM's plea seeking quashing of an order issued by Governor Thaawar Chand Gehlot granting sanction to prosecute the former in the alleged multi-crore scam relating to Mysore Urban Development Authority (MUDA).

On August 19, the high court directed the trial court to defer all proceedings against Siddaramaiah, based on the governor's sanction, till the next date of hearing before the high court.

During the hearing on September 2, one of the complainant's had argued that Governor's sanction order against CM Siddaramaiah may not be looked at as adversarial but for ensuring purity in public administration. On August 31, the office of the Governor had submitted that the sanction granted to prosecute Siddaramaiah was done after "elaborate application of mind", adding that the sanction order had considered everything. The matter was kept on Monday for submissions by the advocate general appearing for the state government. 

Appearing for the state government, advocate general Shashi Kiran Shetty on Monday argued that this was a case where private persons had sought approval under section 17A of the Prevention of Corruption (PC) Act. 

For context, Section 17A and Section 19 being referred to in the matter are under the Prevention of Corruption Act. Section 17A pertains to Enquiry/Inquiry/investigation of offences relatable to recommendations made or decisions taken by public servants in the discharge of official functions or duties. Section 19 of the Act is on the necessity of "previous sanction" for the prosecution of a public servant.

Shetty said that the condition precedent for 17A approval is that a preliminary inquiry be done by the investigating officer. To this the high court orally said, "Are you suggesting, prior to sanction by 17A approval there should be an inquiry. If yes then you are equating the order to an FIR". 

Meanwhile Shetty said that for a "Pre-17A approval" an inquiry is "required". 

The High Court however orally said that there is no requirement for a "prior inquiry before 17A approval". At this stage Shetty said that there is an "abnormal delay" in the case and the "de-notification" as per the other side (complainants and the Governor's office) is of 1998. 

"Private Person cannot be put on higher pedestal than a police officer milord. Preliminary inquiry is to be done. In this case inquiry has not be done milords. Here is a case where complaint was given to police officer and sufficient time was not given and then they jump the gun and apply for approval under Section 17A. Governor does not do a preliminary inquiry; in this case he has done preliminary inquiry.Formation of opinion is to be done only by police officer. The competent authority does not do preliminary inquiry it could have asked the IO to give the information and ought not to have acted as investigating officer," Shetty emphasized. 

He further submitted that the "allegation of complaint" ought to have been returned by the Governor and the information should have been sought from the investigating officer in terms of Section 17A and Standard Operating Procedure issued by the Central Government.

"He ought (Governor) not have entertained the application itself. What is crucial is that offence under PC Act should be relatable to decision and office held," Shetty said. 

At this stage, the high court orally asked, "According to you petitioner (Siddaramaiah) has not done anything that is relatable to a decision taken or recommendation made?"

Shetty meanwhile replied, "No that is the legal position in order to invoked Sect 17A it is a condition precedent. For entertaining application preliminary inquiry is required".

Submitting that inquiry was to be done only by the police, the advocate general said, "Trigger happy complaints are filed day in and day out, against various public servants to competent authority, nature of inquiry ought to have been done...hearing the complainant/accused, such a thing will defeat the purpose of Sec 17A. Thus inquiry is to be conducted by police only".

He said that it is upon the competent authority to grant approval or not, considering the preliminary inquiry of the Investigating Officer. 

At this stage the high court orally asked, "If inquiry is done then competent authority gives approval for what then?...Your blowing hot and cold. You said prior to approval under Sec 17A there should be an inquiry or some report". 

Shetty meanwhile submitted that this what the Supreme Court in Lalita Kumari has said. He further added that there was "no application of mind" and no preliminary inquiry in the present matter. 

"Complaint was given on 18 and 25 July, next date prior approval is sought. Police was not given opportunity to investigate," Shetty submitted. 

The court however orally said, "If your submissions is accepted, then what investigation will happen after grant of approval under Section 17A. By the impugned order what is done that inquiry should happen". 

Meanwhile Shetty said that Governor is the competent authority not a police officer to conduct preliminary inquiry.

At this stage the high court orally said, "If crime is registered before the police, or Lokayukta under PCR Act or IPC prior approval is sought by IO. He starts investigation by registering FIR. This is a private complaint, if matter is referred for investigation no choice but reg crime. Then what happens to Sec 17A approval?".

To this Shetty said that the Governor is only approving authority and "not the investigating authority". 

"Whatever is to be done preliminary or otherwise for that Sec 17A approval is required. According to you, preliminary inquiry has been conducted by the competent authority," the high court orally asked Shetty who said "yes". 

Shetty further said, "Complaint is given to police, but he does not even wait 24-hours and approaches the Governor. He (complainant) is heard personally by the Governor. This procedure is not contemplated in eyes of law. The Competent authority ought to have seen prior to entertaining application seeking approval under Sec 17A, crucial aspect of compliance of 154 CrPC (FIR), etc had to be done".

On the issue of Governor relying on aid and advice of cabinet, Shetty said, "Coming to aid and advice of the Cabinet, the question is about the discretion of the Governor and how he is to exercise it. Discretion is not absolute, which he can exercise, as it has been decided in judgments of the Supreme Court". He thereafter referred to the Supreme Court's decision in the case of Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly.

"The reasoning that impugned order says it is my discretion, the reasoning has to be in the order itself and not in the file of the Governor," Shetty said while concluding his submissions. 

Appearing for the petitioner Chief Minister, senior advocate Abhishek Manu Singhvi said that he will make his rejoinder submissions on Thursday, September 12.

Meanwhile senior counsel Lakshmy Iyengar, appearing for respondent no. 4 complainant Snehamayi Krishna began her submissions regarding the "role" of Chief Minister in the matter.

She said, "If Check period is gone into then all this falls in place. Ultimately we are only looking at when are the periods in which the petitioner held a certain post and that is the time when all of this took place. It is only between 1996 to 1999 he was the Deputy CM and that period is the de-notification period. Subsequently 1999-2004 petitioner was not in power since he had lost the elections. That is the lull period. During 2004, to 2007 the convergence phase starts. Subsequently 2008 to 2013 transfer takes place...between 2013 to 2018, when petitioner is CM the compensation is sought...2018 to 2022 the petitioner was an MLA. It is not about which political party in power. He held a position of power". 

For context, the check period under the PC Act would refer to the time period in which the assets of the person accused under the act is measured.

Iyengar further submitted, "every single act that has taken place has been done on behalf of petitioner...Subsequently in 2023 when all of this is unfolding at that time petitioner says. 'take my 14 sites and give me 50 crore'...from then onwards the role is established". 

The high court orally asked how was the concept of check period relevant to this case. To this Iyengar said that "Money is not attributable, but acts are directly attributable.To say that i was not in power when all 14 sites were allotted, he was definitely in power. When he was not elected there was a lull period when he was in power there was activity". 

Extending the operation of the interim order, the high court listed the matter for hearing on September 12 at 12 noon. 

Background

The petition challenged the order issued by the Governor on August 17 granting approval for investigation as per Section 17A of the Prevention of Corruption Act and sanction for prosecution as per Section 218 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

The CM's plea claimed that the sanction order was issued without due application of mind, in violation of statutory mandates, and contrary to constitutional principles, including the advice of the Council of Ministers, which is binding under Article 163 of the Constitution of India.

It was claimed that the impugned order of sanction is tainted with malafides and is part of a concerted effort to destabilize the duly elected government of Karnataka for political reasons.

Case title: Siddaramaiah AND State of Karnataka & Others.