Section 17A of the Prevention of Corruption Act requires prior approval for investigating public servants, but its absence does not invalidate proceedings; corrective measures can be taken later.

JUDGMENT :

Manoj Kumar Garg, J.

1.Instant criminal revision petition has been filed under Section 397 /401 Cr.P.C against the order dated 12.09.2024 passed by the learned Special Judge, ACB, Pali in Sessions Case No. 02/2024 whereby, the learned Judge ordered to frame charges against the petitioner for offences under Section 07 of Prevention of corruption Act.

2. Brief facts of the case are that a complaint was filed by the complainant Devendra Kumar stating therein that he is employed as Constable at Police Station Abu Road and the accused is seeking illegal gratification of Rs. 1,50,000/- from him, claiming to act on behalf of Superintendent of Police, in exchange for not placing him under suspension. Upon receipt of the complaint, the police registered a case under Section 7 of the Prevention of Corruption Act and initiated an investigation.

3. After due investigation, the police filed chargesheet against the petitioner for offence under Section 7 of the P.C. Act and the matter was committed to the court of Special Judge, ACB Cases, Pali. Subsequently, the learned trial court after hearing the arguments on charge, proceeded to frame charges against the petitioners vide impugned order dated 12.09.2024. Hence, this present revision petition.

4. Learned counsel for the petitioner argued that the prosecution has not complied with the mandatory provisions as envisaged under Section 17A of the P.C. Act. As per Section 17A of the amended Act of 2018, no police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the Prevention of corruption Act, without previous approval. It is argued that the allegation against the present petitioner is that he demanded illegal gratification on behalf of Superintendent of Police, whereas, the Superintendent of Police has not been arrayed as an accused. Thus, neither any demand was raised by the petitioner nor any work was pending at the end of petitioner so as to demand any illegal gratification. Be that as it may, the petitioner allegedly committed the "offence" during the course of discharging their official duty and therefore, the sanction had to be sought before proceeding against the petitioner. Therefore, the impugned order dated 12.09.2024 is illegal and same is liable to be set aside. Learned counsel for the petitioner placed reliance on the decision of Hon’ble Apex Court in the case of Yashwant Sinha and Ors. vs. Central Bureau of Investigation and Ors. Reported in (2020) 2 SCC 338, decision of this Court in the case of Himanshu Yadav vs. State of Rajasthan in S.B. Civil Writ Petition No. 17545/2021 decided on 19.01.2022, decision of this Court in the case of Ranidan Singh vs. State of Rajasthan S.B. Criminal Misc. (Pet.) No. 1219/2022 decided on 08.10.2024, decision of this Court Jaipur Bench in the case of Surendra Singh Rathore vs. State of Rajasthan S.B. Criminal Misc. (Pet.) No. 4366/2022 decided on 09.09.2022, and decision of this Court in the case of Rakesh Sheshma vs. State of Rajasthan S.B. Criminal Misc. Stay Petition No. 9423/2024 decided on 19.12.2024.

5. Per contra, learned Public Prosecutor and learned counsel for the complainant argued that offence under Section 7 of the P.C. is prima facie made out against the accused petitioner and acts done by the petitioner cannot be said to be in discharge of official duty and same would not be protected by the armor of Section 17A of the Code. It is further argued that the point about sanction under Section 17A need not be considered at the stage of framing of charges. At this stage the Court should only see if a "prima facie" case is made out or not. Moreover, before framing of charges, prosecution sanction has been obtained against the petitioner, therefore, no interference is called for in the impugned order dated 12.09.2024 and the revision petition is liable to be dismissed. Learned counsel for the petitioner placed reliance on the decision of Hon’ble A