Sanction unnecessary when the act is ex facie criminal
The prior sanction of the Government, as mandated under Section 17A of Prevention of Corruption Act (PC Act) in regard to recommendations made or decisions taken, would not be necessary when the act of the public servant is ex-facie criminal or constitutes an offence. This is what the Supreme Court (SC) states in the judgement in Shankara Bhat and Others v. State of Kerala and Others [2021(5) KHC 248].
Sanction needed to conduct inquiry or investigation
In the above case, the SC held that the approval under S.17A is required only when the alleged offences were relatable to any recommendation made or decision taken by a public servant.
The Section 17A mandates that no police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the PC Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval of the appropriate Government.
In spot arrest, prior sanction not needed
However, the proviso to Section 17A stipulates: “Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person”.
The above proviso clearly refers to cases where the charge is of accepting or attempting to accept undue personal advantage for himself or for any other person.
Section 17 A intends to protect the bonafide officials
Section 17A as it reads and the legislative intent in its enactment can only be to protect public servants in the bonafide discharge of official functions or duties.
However, when the act of a public servant is ex-facie criminal or constitutes an offence, prior approval of the Government would not be necessary.
No sanction needed when a constitutional court orders inquiry
Kerala High Court says, in Bindulal V S & Others v State of Kerala & Others [2024: KER:35039], when a Constitutional Court passes an order to conduct enquiry or investigation into an offence under the PC Act, the issue of sanction under Section 17A of the PC Act does not operate as a bar.
Once a constitutional 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.
References
- Shankara Bhat and Others v. State of Kerala and Others [2021(5) KHC 248]
- Bindulal V S & Others v State of Kerala & Others [2024: KER:35039]
