-Galla S Kiran Kumar,Bureau Chief Telagana (Andhra Pradesh)
Can an FIR be registered on matters not considered a crime in the 2018 amendments to the Prevention of Corruption Act? Supreme Court judge Justice Bela M. Trivedi asked the AP government lawyer.
Supreme Court’s question to AP government counsel
on applicability of Section 17A, arguments of both sides
adjourned to Friday
Today, Delhi: In the 2018 amendments to the Prevention of Corruption Act, can an FIR be registered on matters not considered a crime? Supreme Court judge Justice Bela M. Trivedi asked the AP government lawyer. Justice Trivedi asked this while keeping in view the registration of those two sections in the FIR registered in 2021 despite the complete deletion of sections 13(1)(c)(d) in the 2018 amendments to the Prevention of Corruption Act. During the hearing for the second consecutive day on the petition filed by TDP chief Chandrababu seeking to strike out the case registered against him without taking prior permission from the governor, the judge questioned Mukul Rohatgi, a senior lawyer who appeared on behalf of the AP government. On Tuesday, Justice Trivedi along with Justice Aniruddha Bose heard the case for the second consecutive day. Senior advocate Harish Salve, who appeared on behalf of Chandrababu, argued that section 17A is applicable in this case, while AP government advocate Rohatgi gave different arguments. As the arguments on behalf of the state government were not completed by the lunch break on Tuesday afternoon, the further hearing of the case was adjourned to next Friday afternoon.
On Tuesday morning, Harish Salve started his initial arguments and said that if the FIR in the skill development case was registered before 2018, Section 17A would not have been applicable, but since the FIR was registered for inquiry and investigation after 17A came into force, this section is applicable. On this occasion, Justice Bela Trivedi intervened and said, ‘You are saying that Section 17A is related to procedure of trial, if it is not followed, does the accused lose any specific right?’ asked. Salve replied that the legal protection they got will be lost. He said that when TADA cases were included with other sections, there were cases where sentences imposed by lower courts were canceled due to non-observance of prior approvals as per the rules. Therefore, it is always dangerous to start an investigation without taking prior permission, he said. He said that even in this case, he can go to the Governor and take permission to register an FIR, and he has no objection to that. But as no such attempt has been made so far, it is said that everything done so far is illegal. Section 17A is applicable whenever a government employee has to register a case against the decisions taken as part of his performance of duty. In this case, the High Court said that Chandrababu’s action does not fall under the scope of abuse of power, and in fact, the entire anti-corruption law applies to decisions taken in a position of power and abuse of power. He said that the main intention of including Section 17A in the Act was to strengthen the Act and not to misuse it. He said that till now this protection was available only to the joint secretary and that higher level, but now it is available to all levels. There is no objection to that. But as no such attempt has been made so far, it is said that everything done so far is illegal. Section 17A is applicable whenever a government employee has to register a case against the decisions taken as part of his performance of duty. In this case, the High Court said that Chandrababu’s action does not fall under the scope of abuse of power, and in fact, the entire anti-corruption law applies to decisions taken in a position of power and abuse of power. He said that the main intention of including Section 17A in the Act was to strengthen the Act and not to misuse it. He said that till now this protection was available only to the joint secretary and that higher level, but now it is available to all levels. There is no objection to that. But as no such attempt has been made so far, it is said that everything done so far is illegal. Section 17A is applicable whenever a government employee has to register a case against the decisions taken as part of his performance of duty. In this case, the High Court said that Chandrababu’s action does not fall under the scope of abuse of power, and in fact, the entire anti-corruption law applies to decisions taken in a position of power and abuse of power. He said that the main intention of including Section 17A in the Act was to strengthen the Act and not to misuse it. He said that till now this protection was available only to the joint secretary and that higher level, but now it is available to all levels. Section 17A is applicable whenever a government employee has to register a case against the decisions taken as part of his performance of duty. In this case, the High Court said that Chandrababu’s action does not fall under the scope of abuse of power, and in fact, the entire anti-corruption law applies to decisions taken in a position of power and abuse of power. He said that the main intention of including Section 17A in the Act was to strengthen the Act and not to misuse it. He said that till now this protection was available only to the joint secretary and that higher level, but now it is available to all levels. Section 17A is applicable whenever a government employee has to register a case against the decisions taken as part of his performance of duty. In this case, the High Court said that Chandrababu’s action does not fall under the scope of abuse of power, and in fact, the entire anti-corruption law applies to decisions taken in a position of power and abuse of power. He said that the main intention of including Section 17A in the Act was to strengthen the Act and not to misuse it. He said that till now this protection was available only to the joint secretary and that higher level, but now it is available to all levels. It is said that it applies only to abuse of power. He said that the main intention of including Section 17A in the Act was to strengthen the Act and not to misuse it. He said that till now this protection was available only to the joint secretary and that higher level, but now it is available to all levels. It is said that it applies only to abuse of power. He said that the main intention of including Section 17A in the Act was to strengthen the Act and not to misuse it. He said that till now this protection was available only to the joint secretary and that higher level, but now it is available to all levels.
The police have the responsibility to investigate, not the right
In the case filed by Yashwantsinha seeking an order to conduct an investigation against Rafale, the bench of Justice Joseph said that even constitutional courts cannot interfere in this section. Therefore, it is said that the High Court is wrong in this matter. He said that the alleged crime in the Rafale case was related to 2016, but Yashwant Sinha filed the case in February 2019 seeking a direction to the CBI to register an FIR against it. Harish Salve brought to the attention of the court that since 17A has already come into force, it is not possible for them to say that FIR should be filed without prior permission from the authorized system. He said that under the Prevention of Corruption Act, the police have no right but the duty to investigate. He said that 17A is the rule to be followed before starting the investigation.
These are the arguments of the AP government.
Later, Mukul Rohatgi, speaking on behalf of the AP government, said that all the allegations in the Ecase were related to the period 2014-16. All these are said to be long before Section 17A came into force. He said that the FIR was registered on December 9, 2021, three sections of which come under Prevention of Corruption Act and another 7-8 sections come under IPC. It is said that the petitioner was included under A-37 on 8th of last month. He said that he was not included as an accused as soon as the case was registered, but only after it became clear that he had a role. He said that this is not a case of political bias. He said that a complaint was received from Pune GST officials on May 14, 2018, and based on that, an investigation was started on June 5, 2018. He said that there is a mention about these in the remand report. Then Justice Bela Trivedi intervened and asked ‘what happened after the inquiry was ordered on 5th June 2018’.
The new package applies only to new offences.
Then Justice Trivedi intervened and asked, ‘If the Anti-Corruption Act is not applicable, then what about Section 17A?’ Rohatgi replied that the Supreme Court had previously said that even if the Anti-Corruption Act is passed, a special court will have the power to try these cases. Later, Justice Bela Trivedi intervened and said ‘Is 17A an element of crime? Is it something to do with people?’ asked. Mukul Rohatgi did not answer immediately and said that he will tell about it later. He said that the Anti-Corruption Act was amended wholesale in 2018 and many sections were amended. He said that unless 17A has been newly added, the previous one has not been amended. It came in the form of a package. He said that the sections of the old package are applicable to the cases before 2018, so the old package has not gone anywhere. If the old package is not applicable to the old offences, it would fall under Article 21, he said. It is stated that the new package which arose after the enactment of 17A applies to new offences. It is said that in the present case the offenses are before 2018 so it falls under the old package, where the petitioner was also booked under the old law.
It is not as if old cases are being struck.
Justice Aniruddha Bose then intervened and asked, “What should be done when a person is charged on the basis of the circumstances of the offence, but the accused is protected from prosecution by virtue of a subsequent law”. Rohatgi replied that it does not apply to them. Then Justice Bose once again responded and asked, ‘When they were added as accused later (after Section 17A)?” Rohatgi replied that the date of the crime would apply to them. There are no restrictions on it. He said that some sections were set aside in 2018, so it cannot be considered that the cases registered under those sections have been dismissed. He said that unless the law clearly states that all the old cases registered under those sections will be deleted, the old cases will not be struck out. Here, cases have been registered against Chandrababu under sections 13(1)(c)(d), But in the law amendments made in 2018, those sections have been deleted. Therefore, those sections are not lost on him.
Cannot apply to older offences
Then Justice Bela M. Trivedi intervened and asked ‘at what level this issue should be decided’. Rohatgi replied that the trial stage should be done. Later, Justice Trivedi intervened and said, “Is it not necessary to place material related to the case before those who grant permission under 17A? Without it, it is not possible to carry out the investigation,” he asked. Rohatgi replied that preliminary investigation can be conducted without prior permission. Then Justice Aniruddha Bose intervened and said, ‘If that section says that prior permission is required for any investigation, is it a preliminary investigation? A final trial? There is no such thing,’ he asked. Rohatgi replied that the provision is only limited to the decisions taken in the position of authority and does not apply to corruption and misappropriation of funds.
