No prior sanction needed in offences of corruption
No prior sanction of the government is required, under section 17A of Prevention of Corruption Act, 1988 (PC Act), for offences like falsification of accounts, breach of trust and misappropriation of funds or acts which are ex facie criminal in nature. The Kerala High Court held this in Shankara Bhat v. State of Kerala & Ors, while deciding a few connected matters.
In this case, the accused persons had moved the Court challenging the prosecution proceedings launched against them against the offences punishable under Sections 13(2) read with 13 (1)(d) of the PC Act.
The issue before the court
The primary question that came up for consideration in all these cases was whether section 17A of the PC Act is an essential prerequisite, applicable to every investigation, enquiry or inquiry.
In other words, whether previous approval from the competent authority need to be obtained for every enquiry, inquiry or investigation, into every offence committed by the public servant.
Prior sanction is a shield for honest officials
The contention of the petitioners was that Section 17A was intended to prevent misuse of the provisions of the PC Act against honest officers.
Hence, a proceeding launched without such statutory requirement was against the statute and its basic purpose.
HC examined the position of 197 CrPC
While arriving at a conclusion on this issue, the High Court (HC) examined Section 197 of Criminal Procedure code (CrPC), an equivalent provision, in detail.
The Section states that no court shall take cognizance of an offence involving a public servant who was accused of an offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the concerned competent authority.
The HC found that the issue whether the sanction under section 197 was a mandatory requirement preceding every action taken by the authority was the subject matter for consideration in a catena of decisions.
Section 17A confines to recommendations or decisions
Relying on those decision, the HC held that the scope of section 17A is specifically confined to “any recommendation made or decision taken by public servant, which alone falls within the protection under section 17A.
The case of offences like misappropriation of funds, fraud, falsification of accounts, criminal breach of trust, conspiracy, etc. cannot be covered by the protection under section 17A as they do not involve any recommendation made or decision taken by the public servant as part of his official business.
Supreme Court decision on the issue
In Baijnath Gupta & Ors v State of Madhya Pradesh, and a slew of cases later, the Supreme Court (SC) had laid down the crucial test to determine whether a public servant, acts or purports to act in an official capacity by holding that, if challenged, he can reasonably claim that, what he did was, by virtue of his office.
On examining such decisions, the HC found that there exists a clear division between those acts which constitute an offence and those acts, though done while discharging the official duties of the public servant, that does not ipso facto constitute an act done or purported to be done in discharge of his official duties.
The settled position in those decisions is that if a criminal offence is committed by a public servant, which is unconnected with his duty, sanction under Section 197 od PC Act was not required, since it does not form part of his official duty or purported to be done, in discharge of his official duty.
Both 17A & 197 operates in different planes
The HC thereafter considered the scope of Section 17 of PC Act in the background of the law laid down by the SC. The court found that Section 197(1) CrPC and Section 17A of the PC Act operate in two different fields and in distinct situations, and have nothing much in common.
However, it was found that the consistent principle laid down in relation to any offence committed by a public servant while acting or purporting to act in discharge of his official duty can be made use of to answer the legal issue involved in relation to section 17A of the PC Act.
Basic principle can be extended
Extending the principle applicable to Section 197 CrPC to Section 17A of PC Act, the HC found that offences like misappropriation, falsification of accounts, cheating, criminal breach of trust, receiving bribes, etc are beyond the scope of the latter provision.
What the Section 17A of PC Act provides is that previous approval is required for any enquiry, inquiry or investigation into any offence allegedly 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.
No sanction required to investigate into corruption
Offences like misappropriation of funds, fraud, falsification of accounts, criminal breach of trust, conspiracy, etc. cannot be covered by the protection under Section 17Act. Such acts do not involve any decision taken or recommendation made and hence cannot be considered as one done in discharge of his official functions and duties as contemplated under section 17A of PC Act.
In such matters of corrupt practices quite unconnected with official functions of the public servant, no prior sanction of the government under section 17A of PC Act is required.
Further reading
