No Prior Approval U/S 17A Prevention Of Corruption Act For Laying 'Trap' Against Public Servant Demanding Illegal Gratification: Rajasthan HC

The Jodhpur bench of the Rajasthan High Court has said that no prior approval is required under Section 17A of the Prevention of Corruption (PC) Act to "trap" a public servant who allegedly demands gratification.In doing so, the high court further said that the provision is only triggered if there is allegation of an offence committed under the PC Act. A single judge bench of Justice Rajendra Prakash Soni in its order further said that such approval was needed only at the stage of investigation or enquiry and not for laying a trap.It said, "There is no dispute in the fact that demanding gratification is not an official duty or function of a public servant. Rather, it is an offence and the provision of Section 17A of the Act provides for approval of enquiry or investigation of such offence, if the demand for gratification was made in the context of any of his official functions. Section 17A of the Act is triggered only if there is an allegation of offence mentioned under the P.C. Act. Here, it is important to note that if a public servant demands gratification, then no approval is required under Section 17A to trap him. If the trap proceeding is successful or unsuccessful, then the crime of accepting or attempting to accept gratification is said to have been committed by him, only thereafter, question of inquiry or investigation of that crime and approval for it arises. Thus, what is restricted by the provision is the process of enquiry or inquiry or investigation into the offences without previous approval of the Government". BackgroundThe Court was hearing two quashing petitions moved by the then Circle Inspector (CI) and the then Assistant Sub-inspector (ASI) of the concerned police station booked under the Act. An FIR was registered against some people in relation cheating in a competitive exam. For conducting investigation in relation to this FIR, the ASI along with some constables went to the firm of the complainant in the present case alleging that he sold illegal devices/goods to the accused in the cheating case. Subsequently, Rs. 1 lakh, two mobile phones, three CPUs, two laptops and one DVR were confiscated from the complainant.When the complainant was taken to the police station, he was allegedly beaten up by the then CI who also allegedly demanded Rs. 5 Lakh from him and when he expressed his inability to pay, he was threatened with false charges. After being released on bail, the complainant went to the police station, with a voice recorder attached, demanding return of his belongings, however, the two policemen were not present and over the phone, they stated that his belongings would only be returned if he paid them.When he again went in the evening to the police station, the CI returned only two CPUs, asking the complainant to not mention about the rest of his stuff or the money. When the CI and other policemen grew suspicious of the complainant, he was apprehended to another room where the voice recorder was taken away, however, the complainant managed to keep a pen driver recorder that had captured the entire conversation. This pen drive recorder was handed over by the complainant to an ACB constable, and eventually the present FIR was lodged against the petitioner. The petitioners' contended that as per Section 17A PC Act, no police officer could conduct an enquiry or investigation for an offence alleged to have been committed by a public servant under the Act without the prior approval of the competent authority of the State. Since no such approval was taken, the counsel termed the entire proceedings to be a mockery of law.FindingsAfter perusing the material on record, the Court observed that Section 17A by itself, requires that an enquiry or inquiry or investigation shall not be undertaken without prior approval of the Government. "However, the first proviso also states that such approval shall not be necessary where a public servant has been caught on the spot, in the act of committing an offence under the Prevention of Corruption Act, and thereafter, an inquiry and investigation are to be conducted for that offence," it noted. The Court further stated that the mandate of "prior approval" under the provision was designed to protect the public officials from "malicious, vexatious or baseless" complaints against public servants by introducing a "safeguard". The provision aims to ensure that legitimate actions in the course of their official duties were not hindered by the fear of legal repercussions, the court added. In this light, the Court observed that in the present case the plan to trap the petitioners "red-handed also failed" which meant that it was not a case of on-spot arrest of the petitioners while they were committing or attempting to commit an offence under PC Act. It further observed that the alleged acts were committed in connection with the FIR of cheating in competitive exams, i.e. the alleged offence arose out of the actions done during the discharge of...

No Prior Approval U/S 17A Prevention Of Corruption Act For Laying 'Trap' Against Public Servant Demanding Illegal Gratification: Rajasthan HC

Nupur Agrawal

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