IMPORTANT POINTS
Section 17A prohibits any enquiry or inquiry or investigation into any offence, without the approval of the authorities mentioned in section 17A alleged to have been committed by a public servant under the Act, where the alleged offence is relatable to any recommendation made or decision taken by such pubic servant in discharge of his official functions or duties. The approval as contemplated under the Act, is basically to protect honest and upright officers and to insulate them against unnecessary victimization or harassment consequent to taking of administrative decisions. It is also intended to embolden upright and honest officers in taking independent decision in public interest.

JUDGMENT :

First accused in C.C.Nos.5 of 2010, 6 of 2010 and 2 of 2018 of the Special Judge SPE/CBI-I, Ernakulam is the petitioner in O.P(Crl).Nos.435 and 436 of 2019. He faces trial along with the co-accused for offences punishable under sections 120B, 420, 468 and 471 of the Indian Penal Code and Section 13(1)(a) r/w 13(2) of the Prevention of Corruption Act 1988 (hereinafter referred to as 'the PC Act'). The charge sheet relates to disbursement of agricultural cash credit loans during the period 2007 to 2008. FIR was laid on 24.07.2008 and after investigation, final report was filed in June 2011. In the above proceedings, accused appeared and pleaded not guilty. Charges were framed and trial commenced. In the meanwhile, first accused filed M.P.Nos.853 of 2019, 854 of 2019, 855 of 2019 and 856 of 2019 in the above criminal cases under section 216 Cr.P.C. to alter the charge. This was dismissed which has given rise to the present original petitions.

2. Crl.R.P.Nos.923 of 2019, 925 of 2019 and 928 of 2019 arises from C.C.No.8 of 2014 on the files of the Special Judge (CBI-SPE) Ernakulam. Revision petitioners are accused No.2, 6 and 4 respectively in the above case. The revision petitioners along with the co-accused face prosecution for offences punishable under sections 11, 14 r/w 12, 13(2), r/w 13(1)(b) of the PC Act. Allegation of the prosecution therein was that, first accused habitually received illegal gratification from accused 2 to 8 and thereby committed the above offences. There was a further allegation that, other accused had abetted the commission of offences. In the above criminal proceedings, revision petitioners filed M.P.Nos.5 of 2019, 80 of 2019 and 29 of 2019 seeking discharge. Those applications were dismissed which have given rise to the present revisions.

3. The petitioner in O.Ps(Crl), has raised a contention that in the light of the amendment to the PC Act introduced by Prevention of Corruption (Amendment) Act 2018 (16.09.2018) which came into force on 26.07.2018, there was a legal embargo in the continuance of the trial of the offences under section 13(2) r/w 13(1)(b) of the PC Act. It was contended that, Amendment Act has substituted section 13(1) and the offence as defined under section 13(1)(d) has been impliedly omitted by substituting it with amended section 13(1). It was contended that, it was neither a repeal nor an express omission of Sec.13(2), but was a substitution and implied omission. It was contended that, in the case where the new section was substituted for the old one by way of amendment in the form of substitution and thereby impliedly omitted an offence for which no express provision was made for its continued application, it has to be deemed that, substituted section alone was there in the original Act from the date when the original Act came into force. According to the petitioner, in the Amendment Act 16 of 2018, there was no express provision saving section 13(1)(d) and in that case, what could be inferred was that the legislature intended to substitute a new definition with effect from the date of amendment Act.

4. To buttress the above contention, petitioner relied on the decisions of the Constitution Benches of Honourable Supreme Court in M/s Rayala Corporation (P) Ltd & Others v. Director of Enforcement (AIR 1970 SC 494) and Kolhapur Cane Sugar Works Ltd and Another v. Union of India & Others (2000(2) SCC 536). It was further contended that, in both the decisions, Constitution Benches had observed that omission of provision was different from repeal and section 6 of General Clauses Act applied only to repeal of an Act and not to an omission. In General Finance Co. v. Assistant Commissioner of Income Tax (257 ITR 338(SC)), Honourable Supreme Court after taking note of the two Constitution Bench decisions of the Apex Court, had quashed the criminal proceedings initiated under an omitted section, holding that prosecution could not have been launched or continued by invoking Section 6