Can the meaning of Section 17A be interpreted in a way that defeats the goals of the PC Act? Supreme Court queries Harish Salve: Chandrababu Naidu’s Case

Nara Chandrababu Naidu v. State of Andhra Pradesh & Anr. | Special Leave Petition (Criminal) No. 12289 of 2023

The Supreme Court on Monday (October 9) asked if it could construe Section 17A of the Prevention of Corruption Act 1988 in a way that would undermine the Act’s goals while hearing the argument of former Andhra Pradesh Chief Minister Chandrababu Naidu.

Prior sanction from the responsible authority must be acquired before opening an investigation of a public employee, according to Section 17A, which was included after the PC Act was amended in July 2018. Naidu is contesting his arrest in connection with the skill development scam case on the grounds that the Governor’s approval was not obtained before the Andhra Pradesh Crime Investigation Department (AP-CID) included him as the 37th accused in the case.

Senior Attorney Harish Salve stated that Section 17A was added to the Constitution to prevent cases of “regime revenge” when speaking on behalf of the leader of the Telugu Desom Party and the Opposition Leader of Andhra Pradesh.

Former Andhra Pradesh chief minister and current leader of the Telugu Desam Party, Nara Chandrababu Naidu, has been detained in connection with a skill development scam in the state. According to the state crime investigation department, there is prima facie evidence that the former chief minister played a significant part in the alleged embezzlement of about Rs 371 crore from the Andhra Pradesh Skill Development Corporation through fictitious companies between 2014 and 2019. In a 2021 FIR pertaining to the multi-million dollar scam involving the state skill development corporation, he is the 37th accused.

Naidu’s special leave petition, which challenges an order made by the Andhra Pradesh High Court last month declining to quash a first information report (FIR) charging the former chief minister with participating in the skill development scam, was being heard by a bench of Justices Aniruddha Bose and Bela M Trivedi. The state’s crime investigation division detained Naidu on September 9 in connection with this case, and he has been in custody ever since.

The Prevention of Corruption Act, 1988, Section 17A, and its applicability were the key topics of discussion at the hearing last week. The Justice Bose-led bench questioned whether the provision would apply to an offense that predated the 2018 amendment that made it operative. When the FIR mentioned offenses under both the Prevention of Corruption Act and the Indian Penal Code, 1860, the court questioned whether Section 17A would be applicable. Naidu’s team of attorneys, which included top attorneys Harish Salve, Abhishek Manu Singhvi, and Sidharth Luthra, claimed that Section 17A should be applied because the investigation got underway after the 2018 change, regardless of when the offense was committed. 

Senior Advocate Mukul Rohatgi for the State, on the other hand, argued that the investigation started earlier than 2018. In order to present the state administration with the whole collection of documents submitted to the high court, the hearing was ultimately deferred.

Salve maintained that the modification would take effect retroactively with respect to Section 17A of the PC Act. Additionally, he tried to prove that the investigation into Naidu only started in 2021, making Section 17A of the PC Act applicable in this matter. He disputed the State’s assertion that the investigation began prior to the 2018 amendment.

Salve cited the remand order and made note of the fact that it states the lawsuit was founded on a preliminary investigation in 2021. Therefore, regardless of when the offense occurred, any inquiry or investigation opened into a public servant after the 2018 amendment requires a sanction under Section 17A.

He stated that it is factually incorrect for the State to claim that the investigation began prior to the 2018 amendment (which added Sec. 17A). “This FIR was not generated by the investigation. It seems that some investigation was conducted and then wrapped up. After that, a new investigation was conducted.

He claimed that S. 17A of the PC Act was added to stop situations in which someone is politically targeted after a regime transition.

He also claimed that despite an earlier complaint, nothing was done, according to the remand report.

Salve further informed the court that there is disagreement among High Courts about the validity of Section 17A. According to him, certain High Courts have ruled that S.17A must follow the date of the offense, while other High Courts have ruled that S.17A must follow the date of the FIR. In order to support his claim that an illegal arrest will not be made valid by a subsequent remand order, he also cited the Supreme Court’s recent decision in Pankaj Bansal v. Union of India.

Salve argued that the Governor’s consent should have been sought before adding Naidu as an accused.

“Even if you had 17A approval at the inquiry stage, you need approval again for investigation” he stated.

Salve contended that the Government of India has released a Standard Operating Procedure outlining how S.17A of the PC Act should be enforced. “They have said that at every stage permission is to be taken” he stated. He emphasized that a police officer must always request permission before beginning any kind of inquiry or investigation. The standard operating procedure is as follows. Of course, the Court will not be bound by it. However, it will aid in comprehending the interpretation, he added.

Justice Trivedi stated that the primary goal of the Act, which is the prevention of corruption, must be taken into account while reading S.17A. “We can’t adopt an interpretation which will frustrate the objective of the Act,” she stated.

S.17A strengthens the Act as a whole. On the one hand, it gives the public employee freedom of action. And someone is checking to determine if the probe was conducted fairly. This law needs to be strictly enforced. Salve replied, “Yes, but with a check that the police officer must inform a higher authority that I am prosecuting so and so.

Salve added that on September 20, following the High Court of Andhra Pradesh’s reservation of judgment on September 19, the State presented a number of papers ostensibly demonstrating that the investigation into the case began prior to the PC Act’s 2018 amendment.

“Mr. Salve, if you claim that a document was shown after the discussion had ended, you were not given the chance to refute it. As a result, the Court was not given the benefit of comprehensive submissions. Therefore, should we send back without delving into merits”. Salve was asked by Justice Trivedi.

Salve did not, however, insist that the case be brought back to the High Court because the High Court had decided that the date of the offense was what was important for S. 17A to apply. “Sending back won’t help me because the HC judge says that the date of the offense is important for Section 17A,” Therefore, the document is not relevant to the decision. I was presenting the paper because the opposing side is currently claiming that the investigation began earlier than 2018″

The case has been set for tomorrow, October 10, 2023, for additional arguments.