IMPORTANT POINT
Previous approval under Section 17-A of the Prevention of Corruption Act is not required for investigating offences of disproportionate assets by public servants.

ORDER :

This Crl.M.C. was filed invoking the provisions under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 by the accused in Crime No.VC.05/2023/SC of VACB, Special Cell, Thiruvananthapuram. The petitioner seeks to quash Annexure 1 First Information Report in the said crime.

2. Heard the learned counsel for the petitioner and the learned Senior Public Prosecutor as well as Special Public Prosecutor.

3. Crime No.VC.05/2023/SC of VACB, Special Cell, Thiruvananthapuram was registered alleging an offences punishable under Section 13(2) of the Prevention of Corruption Act, 1988. Acquisition of disproportionate assets by the petitioner attracting the offences described under Section 13(1)(e) of the PC Act (unamended) and 13(1)(b) of the PC Act (amended), is alleged. The petitioner raises several grounds in support of his plea for quashing Annexure 1. The twin contentions set forth by the learned counsel for the petitioner at the time of hearing as reasons to quash Annexure 1 First Information Report are:

i) lack of previous approval from the Government as contemplated in Sections 17-A of the PC Act, and

ii) lack of sanction under Section 19 of the PC Act

4. The learned Senior Public Prosecutor, on the other hand, would submit that no previous approval of the Government is required since the offence alleged against the petitioner is one described in Section 13(1)(e) of the PC Act (unamended) and 13(1)(b) of the PC Act (amended). In regard to the second contention, it is submitted that sanction under Section 19(1) is required to take cognizance only.

5. Ingredients of both of the said provisions are similar. Section 13(1)(e) of the PC Act (unamended) reads as follows:

“13. Criminal misconduct by a public servant.

(1) A public servant is said to commit the offence of criminal misconduct,-

a) xxx

b) xxx

c) xxx

d) xxx

e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known source of income.”

Section 13(1)(b) of the PC Act (amended) reads as follows:

“13. Criminal misconduct by a public servant.

(1) A public servant is said to commit the offence of criminal misconduct,-

a) xxxx

b) if he intentionally enriches himself illicitly during the period of his office”

6. The offence that constitutes under the said provisions is criminal misconduct by a public servant by intentionally enriching himself illicitly during the period of his office. Indisputably, the petitioner was a public servant during the relevant period in connection with the affairs of the State Government. The Vigilance has registered the crime after verification of the allegations that during the check period between 01.01.2011 and 30.06.2019, the petitioner acquired assets far exceeding the known sources of himself and his family members. The question first raised is that without previous approval from the State Government under Section 17A of the PC Act, the Vigilance conducted the enquiry and commenced the investigation.

7. The relevant part of Section 17-A of the P.C. Act reads as follows:

“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.

(1) 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-

xxxxxxx”

8. A reading of the above provision makes it explicitly clear that previous approval of the competent authority is required for enquiry, inquiry, or investigation by police in respect of offences which have direct nexus with a recommendation made or decision taken by such public servant