Chandrababu Naidu Ruling: What’s the Split Between Justices Aniruddha Bose and Bela Trivedi

ON Tuesday, a two-judge Bench of the Supreme Court comprising Justice Aniruddha Bose and Justice Bela M. Trivedi differed on the interpretation of Section 17A of the Prevention of Corruption (PC) Act, 1988 while ruling on a petition filed by the former chief minister of Andhra Pradesh Nara Chandrababu Naidu.

Naidu’s petition was challenging a high court Order refusing to quash a first information report (FIR) against him in an alleged skill development scam case.

Justice Bose held that any ‘enquiry’, ‘inquiry’ or ‘investigation’ against a public servant for the offences under the PC Act requires previous approval of the competent authority after Section 17A of the Act became operational. Justice Bose also added that in the absence of such previous approval, the action initiated under the PC Act would be illegal.

Justice Bose, however, clarified that it would not foreclose the option of the concerned authority in seeking approval under Section 17A of the PC Act.

Disagreeing with Justice Bose, Justice Trivedi opined that Section 17A has a prospective application. It would mean that the requirements of prior sanction under Section 17A, which was brought in by a 2018 amendment, do not apply to the offences committed under the PC Act before the coming into force of Section 17A.

She also added that even otherwise, the absence of approval as contemplated in Section 17A would neither vitiate the proceedings nor would they be grounds to quash the proceedings or the FIR registered against such public servant.

Both the judges, however, found no illegality in the Order passed by the special judge under the PC Act, remanding Naidu to judicial custody.

Since the Bench differed on the interpretation of Section 17A of the PC Act, the matter has now been sent to the Chief Justice of India for listing before a larger Bench.

Facts

Naidu is facing allegations for offences under Sections 166, 167, 418, 420, 465, 468, 471, 409, 209 and 109 read with Sections 120­B, 34 and 37 of the Indian Penal Code (IPC), 1860 and Section 12 and 13(2) read with Sections 13(1)(c) and (d) of the PC Act, 1988.

The said offences are alleged to have been committed between the years 2015 and 2019, during which period Naidu was the chief minister of Andhra Pradesh.

An FIR was registered on December 9, 2021 against 26 accused. Naidu was omitted as an accused in the FIR. He was subsequently named as an accused on September 8, 2021.

On September 9, 2023, Naidu was arrested. On September 10, 2023, he was produced before a special judge. On September 12, 2023, he applied for quashing of the FIR against him before the high court.

The legality of the remand was also challenged in the same petition before the high court. On September 22, 2023, the high court rejected the petition filed by Naidu.

Section 17A was introduced to the PC Act with effect from July 26, 2018.

Senior advocates Harish N. Salve and Siddharth Luthra, on behalf of Naidu, primarily contended that the non-compliance with Section 17A of the PC Act rendered the proceedings against Naidu non est in law.

The state government, through senior advocate Mukul Rohatgi, argued that offences under Section 13 (1) (c) and (d) of the PC Act, were deleted from the said statute by the Prevention of Corruption (Amendment) Act, 2018.

It was by the same amendment that Section 17A was incorporated in the said statute. On this basis, it was argued by the state government that any protective measures which were conceived in the amended Act could not extend to offences committed when such protective measure for obtaining prior approval was not a part of the statutory scheme.

The second argument made by the state government was that a regular inquiry had already been ordered on June 5, 2018 regarding the allegations of corruption against the officials of Andhra Pradesh State Skill Development Corporation (APSSDC)

The director general of the Anti­-Corruption Bureau, Andhra Pradesh, had passed an Order to that effect. On this basis, the state contended that an enquiry was ordered much before July 25, 2018, that is, before the coming into force of Section 17A.

Justice Bose’s opinion

Justice Bose first examined whether the enquiry had begun by the letter, dated June 5, 2018, of the director general of the Anti­-Corruption Bureau, Andhra Pradesh.

After going through the said letter, Justice Bose observed that it essentially carried a request for enquiry and there was no indication in the materials produced before him as to whether any step had been taken in pursuance of such a request till 2021.

Justice Bose arrived at a finding that there were no specific particulars regarding when and in what form the enquiry had started. He held that a request to conduct an enquiry by itself could not be the starting point of the enquiry under Section 17A to bypass the restriction postulated therein.

Specific to the facts of Naidu’s case, Justice Bose held that the actual search for information had commenced in 2021.

“Lack of action on this count has been attributed by the State to the appellant and the other accused persons themselves. We are not going into the truth of such allegations. But if such allegations are assumed to be correct, the same shall only support the appellant’s case that no enquiry was initiated before the incorporation of Section 17A in the statute book.

“Further, in the FIR or the preliminary enquiry report dated December 9, 2021, there was no reference to the communication of June 5, 2018. I, accordingly, hold that before Section 17A of the 1988 Act became operational, no enquiry, inquiry or investigation had commenced as against the appellant in relation to the subject crime,” Justice Bose held.

Justice Bose also referred to a ‘standard operating procedure’ (SOP) for processing cases under Section 17A. It was issued on September 3, 2021 by the Department of Personnel and Training (DoPT) of the Union government.

It states: “Enquiry for the purposes of these SOPs, means any action taken, for verifying as to whether the information pertains to the commission of an offence under the Act.”

Taking a cue from the SOP, Justice Bose held: “As there is no authoritative guideline defining what constitutes an enquiry, I find it safe to rely on the explanation given in the aforesaid clause of the SOP.

This explanation also contemplates any action taken for verifying as to whether the information pertains to the commission of offences under the Act or not. Again, the memo of June 5, 2018, if tested standalone, cannot be construed to imply taking any action.”

On the argument of Salve that Section 17A applies at the starting point of enquiry, inquiry, or investigation even though the offence may relate to a period when the requirement of obtaining previous sanction was not necessary for starting these processes, Justice Bose observed that Section 17A does not distinguish between offences on the basis of whether they were committed before or after July 26, 2018.

“In the event any of the three acts on the part of the prosecution is triggered off post July 26, 2018, the mandate of Section 17A would be applicable. The wording of Section 17A restricts the power of a police officer to conduct any of the three acts into any offence by a public servant ‘under this Act’.

Thus, if the process of enquiry commences at a time attracting specific provisions of the 1988 Act which stand deleted by the Amendment Act of 2018, the restrictive protection in the form of Section 17A ought to be granted. The phrase ‘under this Act’, on such construction ought to include offences which were in the statute book at the time the subject­ offences are alleged to have been committed.

“Mr Rohatgi, however, wants me to construe this expression, i.e., ‘under this Act’ to mean the 1988 Act, as it existed on and from the date the provisions of Section 17A was introduced,” Justice Bose observed.

“As the said Section did not exist at the time of the alleged commission of the offences, his submission is that the said provision could not apply in the case of the appellant.

“The said Section, however, as I have already narrated, had become operational when the enquiry started. Thus, proceeding on the basis that the said provision is prospective in its operation, the material point of time for determining its prospectivity would be the starting point of enquiry or inquiry and investigation,” Justice Bose added.

On the issue whether the phrase “under this Act” used in Section 17A of the 1988 Act, would mean to be “the Act”, as it existed at the time of the alleged commission of offence or “the Act” as it stood post amendment when the enquiry commenced.

“While dealing with the issue of the necessity for obtaining prior approval, I have already held that the appellant could be implicated under Section 13 (1)(c) and (d), as at the time of the alleged commission of the offences, these provisions were alive.

“Once certain offences are deleted from an enactment, they do not vanish totally unless the lawmakers say so. They move to the back pages and can be revived if they were committed before being enacted out of the legislation.

“But I cannot give a restrictive interpretation to the expression ‘under this Act’ to give an isolated retrospective operation to the said phrase, detaching it from rest of the provisions of Section 17A of the Act and removing the protective shield in a situation where an enquiry has started after the introduction of the said provision but relates to an offence committed prior to its introduction in 2018.

“The said phrase ought to be relatable to the date of starting of the enquiry, inquiry or investigation and not to the time or date of commission of offence,” Justice Bose opined.

Justice Bose also reasoned that if he were to apply an interpretation of the expression “under this Act” to mean the statute as it exists at the time the enactment is invoked, the same phrase is invoked, the same might result in divesting the special judge of his power to proceed against the appellant, as at the time the appellant’s case was brought to the special judge, the aforesaid two sub-sections stood deleted from Section 13 (1) of the 1988 Act.

Addressing the issue of whether striking down the set of offences under the PC Act from the FIR would render the remand Order passed by the special judge under the PC Act illegal and non est, Justice Bose held that the special judge had jurisdiction to pass the remand Order even if the offences under the PC Act could not be invoked. He noted that there are allegations of commission of offences against Naidu under various provisions of the IPC as well.

“The substantive offences alleged against the appellant are Section 12 and Sections 13(1) (c) and (d) read with Section 13(2), which is the provisions prescribing punishment. I am not satisfied, at this stage, that the 1988 Act offences are so dominant in the set of allegations against the appellant that once I consider the allegations against the appellant de hors the alleged offences under 1988 Act, the allegations of commission of the IPC offences would automatically collapse.

“At this stage, in my opinion, the alleged commission of IPC offences is not merely ancillary to the 1988 Act offences, as has been argued by Mr Salve and Mr Luthra, and if the commission of offences by the appellant under the IPC provisions is proved, could form the basis of conviction independent of the offences under the 1988 Act,” Justice Bose held.

Justice Trivedi’s opinion

Justice Trivedi underscored that by emphasising accountability, transparency and strict legal consequences, the PC Act stands to combat corruption and to foster and uphold the culture of ethical conduct.

The very objectives of the Act are to prevent corruption, to promote transparency and accountability in public administration, to deter individuals from engaging in corrupt practices by imposing strict penalties, to protect whistleblowers, etc.

Justice Trivedi pointed out that the provisions pertaining to the offences under the PC Act, particularly the offences under Sections 7, 8, 9, 10 and 13, had been substantially amended, and the new offence under Section 7(A), had been inserted by the Amendment Act of 2018.

“Such substitution in place of existing provisions and such insertion of new provisions in the PC Act, have created a new set of rights and liabilities under the Act. Section 17A having been newly inserted simultaneously with such amendments in the provisions pertaining to the offences, in my opinion, Section 17A could be made applicable only to the said amended or newly inserted offences under the PC Act,” Justice Trivedi held.

She added that Section 17A having been introduced as a part of a larger legislative scheme, and the other offences under the PC Act having been redefined or newly inserted by way of the amendment Act, 2018, Section 17A was required to be treated as a substantive and not merely a procedural in nature.

“Such a substantive amendment could not be made applicable retrospectively to the offences like Section 13(1)(c) and 13(1)(d), which have been deleted under the Amendment Act, 2018,” she held.

Justice Trivedi further held that the amendment Act, 2018, by which Section 17A was inserted, was specifically made applicable with effect from July 26, 2018 by the Union government.

Justice Trivedi also highlighted that while passing the amendment Act of 2018, by which then-existing offences under the PC Act were deleted and redefined, and by which some new offences were inserted, the legislature had simultaneously introduced Section 17A.

“It was also stated in the Amendment Act that the same shall come into force from the date as may be notified by the Union government. On this basis, Justice Trivedi opined that it was required to be presumed that the intention of the legislature was to make Section 17A applicable only to the new offences as amended by Amendment Act, 2018 and not to the offences which existed prior to the coming into force of the Amendment Act 2018,” Justice Trivedi said.

“Any other interpretation may lead to an anomalous situation resulting into absurdity in as much as there could not be prior approval of the authorities as contemplated under Section 17A for the offences which have been deleted by the Amendment Act, 2018.

If the submission of Mr Salve that Section 17A is retroactive in operation is accepted, then all the pending proceedings of enquiry, inquiry and investigation as on July 26, 2018, carried out in respect of the offences which existed prior to the amendment would become infructuous, frustrating the very object of the Act,” Justice Trivedi held.

Justice Trivedi went on to state that it could not be the object of Section 17A to give benefits to dishonest and corrupt public servants.

“If any enquiry or inquiry or investigation carried out by a police officer in respect of the offence committed by a public servant is held to be non est or infructuous by making Section 17A retrospectively or retroactively applicable, the same would not only frustrate the object of the PC Act but also would be counterproductive.

“It is axiomatic that no proceeding could stand vitiated or could become infructuous on account of the subsequent amendment in the Act,” Justice Trivedi held.

Importantly, she held that the absence of approval before conducting any enquiry or inquiry or investigation into an offence alleged to have been committed by a public servant, as contemplated in Section 17A, could never be the ground for quashing the FIR registered against the public servant or the proceedings conducted against him, more particularly when he is also charged for other offences under the IPC in respect of the same set of allegations.

Regarding the court’s query as to how an FIR could have been registered in 2021 for offences under Section 13(1)(c) and 13(1)(d) which had already been deleted by the amendment Act 2018, Justice Trivedi accepted the argument of Rohatgi that though the old provision of Section 13 had been substituted by the new provision, and though Sections 13(1)(c) and 13(1)(d) were no more offences under the amended provision of Section 13, the right of the investigating agency which had accrued to investigate the crime which took place prior to the amended provision of Section 13 continued in view of Clauses ‘c’ and ‘e’ of Section 6 of the General Clauses Act.

According to Rohatgi, unless a different intention appears in the amendment Act of 2018, the right of the investigating agency to investigate the offences under Section 13(1)(c) and 13(1) (d) could not be said to have been affected. Justice Trivedi accepted this argument of Rohatgi.

On the issue of the remand Order, Justice Trivedi held that Naidu, having been implicated for other offences under the IPC as well, the special court was completely within its jurisdiction to pass the remand Order in view of the powers conferred upon it under Section 4 and 5 of the PC Act.