T.O. Sooraj v. State of Kerala

  • Order

Prevention of Corruption Act, 1988 – Use or utilization of public funds by a public servant under the colour of authority but really for his own benefit cannot be considered as an act done in discharge of his official functions or duties. Such an act is not entitled to get the protection under Section 17A of the Act. [Para 58]

The quintessence of the discussion is that, neither Ext.P1 enquiry report nor Ext.P2 FIR, is liable to be quashed at the instance of the petitioner. Consequently, the writ petition is dismissed.

Question of Law

When the authority concerned had given previous approval for conducting preliminary enquiry and during such enquriy, if commission of any cognizable offence under the Act by a public servant, relating to a decision taken or recommendation made by him in connection with his official duties, is disclosed, is it then necessary for the police officer to again obtain previous approval for registration of FIR and conducting investigation into such offence ?

Prevention of Corruption Act, 1988 – Section 17A of the Act cannot be interpreted in such a manner that previous approval of the authority concerned shall be obtained by the police officer before implicating any new person, who is a public servant, as an accused in the case and conducting investigation against him.

In many cases, when an FIR is registered under a provision of law, the names of the accused who have committed the offence may not be known and their names may not be stated in the FIR. FIR is not an encyclopedia disclosing all facts and details relating to the offence allegedly committed. FIR is not meant to be a detailed document containing chronicle of all intricate and minute details. When the information contained in the FIR does not furnish all details, it is for the investigating officer to find out those details during the course of investigation and collect necessary evidence. It is well known that, whenever an offence is committed, it is not necessary that the investigation shall be confined to the role of only those arrayed as accused in the FIR or with reference to the penal provisions mentioned in it. Once a case is registered, under whatever provision, during the course of the investigation conducted, the situation may warrant inclusion of the names of new persons as accused or deletion of the names of existing accused and also invocation of new or different penal provisions other than those mentioned in the FIR. [Para 49]

Prevention of Corruption Act, 1988 – the object of Section 17A of the Act is to give protection to honest public servants to take decisions without any fear of vexatious prosecution against them.

The amendments made to the Prevention of Corruption Act by Act 16 of 2018 were with the intention to strengthen it to bring it in line with the current international practice. The PC Act, 1988 is a special statute. The preamble of it shows that it has been enacted to consolidate and amend the law relating to the prevention of corruption and for the matters connected therewith. It is intended to make the corruption laws more effective by widening their coverage and by strengthening the provisions. [Para 45]

Prevention of Corruption Act, 1988 – When a recommendation or decision is made by a public servant, which is not directly and reasonably connected with his official functions or duties, he is not entitled to get the protection under Section 17A of the Act.

The expression “discharge of his official functions or duties” in Section 17A of the Act reflects the legislative intent that the protection envisaged is not a blanket protection. The purpose is to protect an honest and responsible public servant if the recommendation made or decision taken by him is in discharge of his official functions or duties. As a necessary corollary, previous approval is required only if the recommendation made or decision taken is directly concerned with the official functions or duties of the public servant. The provisions under Section 17A of the Act would apply only when the offence under the Act alleged to have been committed by the public servant relates to a recommendation made or decision taken by the public servant in discharge of his official functions or duties. [Paras 13 & 14]

Prevention of Corruption Act, 1988 – The embargo under Section 17A of the Act applies only to such enquiry or investigation which is initiated after the introduction of that provision in the statute. The legislative intent is certainly not to set the clock back to invalidate investigation or enquiry which was undertaken prior to the coming into force of that provision. [Para 19]

Constitution of India – When a Minister takes an action according to the Rules of Business, it is both in substance and in form the action of the Governor.

Article 154(1) of the Constitution of India states that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 166(1) of the Constitution of India provides that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. Article 166(2) of the Constitution states that, orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. Article 166(3) of the Constitution provides that, the Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.

Rule 12 of the Rules of Business of the Government of Kerala, framed by the Governor under Article 166(3) of the Constitution of India, states that every order or instrument of the Government of the State shall be signed by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or by such other officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument. Rule 12 permits every order or instrument of the Government of the State to be signed by a Secretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary, an Under Secretary or by such other officer as may be specially empowered in that behalf. [Paras 22 – 24]

Prevention of Corruption Act, 1988 – Section 17A Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.

The object of Section 17A of the Act is to protect public servants from malicious, vexatious and baseless prosecution. However, it cannot be considered as a protective shield for corrupt public servants. It is a safeguard only for the honest officers. A public servant cannot be left to be under constant apprehension that bona fide decisions taken by him would be open to enquiry, inquiry or investigation on the basis of frivolous and false complaints made against him. If every decision taken by a public servant is viewed with suspicion, the public administration will come to a grinding halt as the persons responsible for taking decisions would lose their enthusiasm. Section 17A of the Act intends to avoid such a situation. requirement of seeking previous approval presupposes that the offence under the Act allegedly committed by the public servant is relatable to any recommendation made or decision taken by him in discharge of his official functions or duties. [Para 12]

A close scrutiny of the provisions contained in Section 17A of the Act would reveal the following:

1. The bar under Section 17A of the Act operates against a police officer

2. It prohibits a police officer from conducting any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the Act without the previous approval of the prescribed authority.

3. The bar under the provision operates or applies only when the offence allegedly committed by a public servant under the Act relates to any recommendation made or decision taken by such public servant in discharge of his official functions or duties.

4. The authority competent to grant previous approval for enquiry or inquiry or investigation is the Central Government in the case of a person employed in connection with the affairs of the Union.

5. The authority competent to grant previous approval for enquiry or inquiry or investigation is the State Government in the case of a person employed in connection with the affairs of the State.

6. The authority competent to grant previous approval for enquiry or inquiry or investigation in the case of any other person is the authority competent to remove the public servant from his office.

7. The provision also applies in case of a retired public servant. The previous approval envisaged under Section 17A of the Act is necessary even if the public servant has retired from service.

8. Section 17A of the Act does not apply to 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.

9. The time which shall be taken by the authority concerned to convey its decision on granting of approval is three months.

10. The authority may, for reasons to be recorded in writing, extend the above time by a further period of one month.

Citations : 2021 (4) KCC 235