IMPORTANT POINT
The central legal point established in the judgment is the interpretation and application of Section 17A of the PC Act, 1988, which restricts the requirement of prior approval for initiating enquiry/investigation against a public servant to offences relatable to specific decisions or recommendations made by the public servant in discharge of official duties.

JUDGMENT :

1. Heard Mr. K N Choudhury, learned Senior counsel, assisted by Mr. S Nawaz, learned counsel for the petitioner. Also heard Mr. M Phukan, learned Special Public Prosecutor, Chief Minister’s Vigilance Cell, Assam assisted by Mr. P Dutta, learned Assistant Special Public Prosecutor, CM’s vigilance Cell.

2. The present application is filed assailing an order dated 19.10.2023 passed by the learned Special Judge, Assam in Special case No. 02/2022, whereby charges under section 120-B IPC and under Section 13(2) of the Prevention of Corruption Act, 1988, (hereinafter referred to as PC Act) had been framed against the petitioner.

3. THE FACTUAL BACKGROUND:

I. On 02.06.2021, a complaint was lodged by one Hasanur Ahmed, before the Superintendant of Police, Chief Minister’s Vigilance and Anti Corruption Cell, Rupnagar, Assam alleging primarily that the petitioner was a corrupt police officer, who had accumulated properties in crores of rupees.

II. On the basis of such complaint against the petitioner, a preliminary enquiry No. 01/2021 was initiated with the approval granted by the Hon’ble Chief Minister, Assam.

III. After completion of the preliminary enquiry, a report was submitted before the Chief Minister, Assam seeking approval, to initiate a regular enquiry and such approval was also granted.

IV. Accordingly, regular enquiry (RE No. 02/2021), was initiated and a report was submitted by the Enquiry Officer, concluding that the petitioner had accumulated disproportionate assets compared to his income from known sources to the tune of 164.80%. Accordingly, it was suggested to register a criminal case and investigate against the petitioner.

V. On the basis of aforesaid recommendation, an FIR was lodged by the Deputy SP, CM’s Special Vigilance Cell, Assam on 05.10.2021, before the Officer-in-Charge, Vigilance PS, CM’s Vigilance Cell and accordingly Vigilance PS case No. 06/2021 under Section 13 (1)(a)(b)/13(2) of the PC Act, 1988 was registered and investigation was started.

VI. After completion of the investigation, the I/O submitted charge-sheet on 30.11.2021 and subsequently, a supplementary charge-sheet was also filed on 23.01.2022.

VII. The charge-sheet was laid under Section 120B IPC read with Section 13(1) (b)/13(2) of the PC Act, 1988 and under section 3(c)/4(1)/5 of the Official Secrets Act, 1923.

VIII. Special Case No. 02/2022 was registered and the learned Special Judge, Assam took cognizance of the offences under Section 120-B IPC read with Section 13 (1) (b)/13(2) of the PC Act against the petitioner.

IX. Thereafter, by way of the impugned order, charges under section 120B IPC and under section 13(2) of the PC Act were framed.

4. SUBMISSIONS MADE ON BEHALF OF THE PETITIONER:

I. The only ground urged by Mr. Choudhury, learned senior counsel for the petitioner, assailing the proceeding of the Special Case No. 02/2022, is non-compliance of Section 17A of the PC Act, 1988. It is the case of the petitioner that no approval was sought from the competent authority, while initiating the enquiry/investigation as required under Section 17 A of the Act, 1988. According to Mr. Choudhury, at the time of initiation of the enquiry/FIR/investigation, the petitioner was a member of All India Service (IPS) and as such, in terms of Article 311 (1) of the Constitution of India, the Central Government alone could have removed him from his service and therefore, in terms of Section 17A of the PC Act, 1988, an approval for initiation of the enquiry/FIR ought to have been taken from the Central Government, which has not been done in the present case. The approval obtained from the State Government, more particularly from the Chief Minister, is nonest in the eye of the law as per mandate of Section 17 A of the PC Act, Argues Mr. Choudhury.

II. According to Mr. Choudhury section 17A of the Act does not mandate any exception of the provision qua disproportionate asset cases and the only exception to section 17-A is in trap cases i.e., for cases involving