PC Act: Prior approval not needed to start inquiry in indubitable, trap cases
Under Section 17A prior approval is needed from the state government for conducting an enquiry, inquiry or investigation against a serving or retired public servant
The Haryana vigilance department on Tuesday said the requirement of Section 17A of the Prevention of Corruption Act (PCA), which pertains to seeking prior approval from the state government for conducting an enquiry, inquiry or investigation against a serving or retired public servant, will not apply when the alleged act by the public servant is ex-facie criminal and in trap cases.
As per a communication, pertaining to standard operating procedures (SoPs) for processing cases under Section 17-A of the PC Act, issued by chief secretary Sanjeev Kaushal on Tuesday, an ex-facie criminal act means offences committed under different provisions of Indian Penal Code (IPC) such as forgery (Section 465), cheating (Section 420), misappropriation (Section 403), and fraud (Section 421).
Trap cases are those involving the 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 communique said, adding that should any doubt arise, it should be referred to the competent authority for a decision.
SoPs reconsidered in view of SC judgement
The chief secretary said the issue of a police officer obtaining prior approval for conducting an enquiry, inquiry or investigation of offences related to recommendations made or decision taken by a public servant in discharge of official functions has been reconsidered in light of a Supreme Court judgement (November 14, 2019) in a review petition (Yashwant Sinha v/s CBI).
“After comprehensive consideration, the legal mandate of Section 17-A of the PC Act comes out that a police officer is mandated to obtain previous approval of the government for conducting enquiry, inquiry or investigation of offences relatable to recommendations made or decision taken by a public servant in discharge of official functions or duties. Keeping in view the need to further streamline the vigilance function in the state, the vigilance Bureau and police department shall ensure meticulous compliance of the newly inserted provision of Section 17 of the PC Act and seek prior approval, except in trap cases or when the alleged act is an ex-facie criminal. The competent authority shall convey the decision thereon to the investigating agencies within 15 days,” it said.
‘FIR registration without prior approval illegal’
Legal experts held that registration of an FIR (first information report) under the PC Act against a public servant without seeking the prior approval of the government was illegal. “Such FIRs are unmaintainable under the law,” high court lawyer Ashwani Talwar had told HT in April.
As per a March 1, 2011 judgement of a Supreme Court bench, comprising Justice P Sathasivam and Dr BS Chauhan, investigation under the Code of Criminal Procedure (CrPC) commences with lodging information related to the commission of an offence.
“If it is a cognisable offence, the officer-in-charge of the police station, to whom the information is supplied orally has a statutory duty to reduce it to writing and get the signature of the informant. He shall enter the substance of the information, whether given in writing or reduced to writing as aforesaid, in a book prescribed by the state,” the apex court judgment said.
Senior high court advocate and criminal lawyer Vikram Chaudhri said if the offending act falls within the sweep of Section 17A of the PC Act, it is obligatory and mandatory to seek prior approval of the authority concerned before embarking upon any enquiry, inquiry or investigation. “Therefore, the procedure under Section 17A is the mandate and any breach would result in vitiation of the proceedings,’ Chaudhri said.
Supreme Court justice KM Joseph, in his November 14, 2019 order, said, “Even proceeding on the basis that on petitioners ‘complaint, an FIR must be registered as it purports to disclose cognizable offences and the Court must so direct, will it not be a futile exercise having regard to Section 17A.”
