The main legal point established in the judgment is that section 17-A of the Prevention of Corruption Act does not apply to an investigation completed prior to its introduction on the statute book. The protective shield is not available if the acts are performed using the office as a mere cloak for unlawful gains.

JUDGMENT

Rohit B Deo, J. - Heard Mr. M.K. Pathan, the learned APP for the applicant/State, Mr. R.R. Vyas, the learned counsel for respondent 2 and 4 and Mr. P.V. Navlani, the learned counsel for respondent 3.

2. The State of Maharashtra is assailing the order dated 25.10.2018, rendered by the learned Additional Sessions Judge, Nagpur in Special Case 26/2018, whereby the respondents (hereinafter referred to as the "accused") are discharged from offences under sections 420, 109 of the Indian Penal Code ("IPC") and sections 13(1)(c)(d) read with section 13(1)(b) of the Prevention of Corruption Act ("Act" for short) solely on the ground that in view of the amended provisions of section 17-A of the Act, the Court is precluded from taking cognizance of the offences in the absence of previous approval from the State Government.

3. The learned Additional Sessions Judge reasons thus:

"9] I have given my anxious consideration to the submissions advanced by the respective counsels of accused No.1 to 4. It is matter of record that the present charge-sheet is filed only for the alleged offences U/s. 13(1)(c)(d) R/w 13(1)(b) of P.C. Act. It is also admitted fact on record that the charge-sheet was filed on 2/08/2018 i.e. after coming into force the amended provisions of the Prevention of Corruption Act. Therefore, it is evident on the face of record that the present charge-sheet is being filed after coming into force of the amended provisions of the P.C. Act i.e. after 26 th July, 2018.

10] I found substantial force in the arguments advanced by the learned counsel for the accused that the present case is based on the accusations that the accused No.1 to 4 in discharge of their official functions and duty and they have recommended and have taken decision in their official capacity. Therefore, I am of the considered opinion that the accused No.1 to 4 are covered to the parameters of Section 17(A) of the P.C. Act and therefore it was incumbent upon the part of the investigating agency to obtain previous approval for obtaining sanction order from the competent authority as envisaged U/s. 19 of the P.C. Act.

11] It is the case that the allegations against the accused persons are made for the alleged offences U/s. 13(1)(c)(d) R/w 13(1)(b) of P.C. Act. However, this court further makes it very clear that although in absence of any previous approval cognizance of the alleged offences at this juncture cannot be taken that will not result closing the doors of the investigating agency from alleging the act on the part of the accused persons before the Court of Law.

12] The remedy available with the Investigating Officer would be to apply before the competent authority for grant of approval / sanction order for launching prosecution against the accused persons for the alleged offences. Upon filing such applications it will be open for the competent authority to pass an appropriate order upon taking into consideration the material collected by the investigating agency either to grant or refuse the sanction in their own wisdom as per rules and prevailing law. Investigating Officer would be at liberty to file fresh charge-sheet after fulfilling the precondition of obtaining approval for filing prosecution against the accused person as per law.

13] It is made clear that this Court has not dealt with the merits of the allegations and the factual aspects involved in the case and all the contentions of the parties in such context are kept totally open. In the light of elaborate discussion made in aforesaid paras, as amended provisions of Section 17-A of the Act creates an embargo for taking cognizance of the alleged offence. In my humble and considered opinion the cognizance for the alleged offences in view of the filing of charge-sheet after came into force of Section 17-A of the P.C. Act cannot be taken and I am not inclined to take cognizance for the alleged offences against the accused persons. With these observations, I come to the conclusion that the charge-sh