Section 17A of the PC Act does not have retrospective operation.

JUDGMENT :

INDIRA BANERJEE, J.

Leave granted.

2. This appeal is against the final judgment and order dated 07.04.2020 passed by the High Court of Judicature for Rajasthan at Jabalpur, allowing S.B. Criminal Miscellaneous Petition No.1163/2018, filed by the respondent and quashing FIR No.1/2018, registered against the respondent under Section 13(1)(g) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the “PC Act”) read with Sections 420, 467, 468, 471 and 120B of the Indian Penal Code.

3. By the aforesaid judgment and order, three miscellaneous petitions involving identical questions of law being S.B. Criminal Miscellaneous Petition No.1163/2018 referred to above, S.B. Criminal Miscellaneous Petition No.159/2018 and S.B. Criminal Miscellaneous Petition No.953/2018 have been disposed of. The petitioners in Criminal Miscellaneous Petition No. 159/2018 and Criminal Miscellaneous Petition No.953/2018 are also accused named in FIR 1/2018.

4. The said FIR has been quashed mainly on the ground that the Investigating Authorities had failed to obtain previous approval of the State Government under Section 17(A) of the PC Act before registering the said FIR against the accused persons.

5. Section 17(A) of the PC Act, which is set out hereinafter for convenience, has been incorporated by amendment of the Prevention of Corruption Act, 1988, with effect from 26th July, 2018. It reads as under :

“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.—No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval—

(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;

(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:

Provided that no such approval shall be necessary for 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:

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.”

6. In this case, the FIR was filed on 01.01.2018 before the said provision came into force. The main question involved in these appeals is whether Section 17A of the PC Act would apply to an investigation which had commenced before Section 17A was enacted/enforced.

7. It is a cardinal principle of construction that every statute is prospective, unless it is expressly or by necessary implication made to have retrospective operation. There is a presumption against retrospectivity. An express provision should ordinarily be made to make a statute retrospective. The presumption against retrospectivity may also be rebutted by necessary implication as held by this Court in Akram Ansari vs. Chief Election Officer reported in (2008) 2 SCC 95, which has been referred to and relied upon by the Kerala High Court in its judgment in K.R. Ramesh vs. Central Bureau of Investigation and Another reported in 2020 SCC Online Kerala 2529. The device of a legal fiction can also be used to introduce retrospective operation. Generally, it is considered that every statute dealing with substantive rights