Prior approval under Section 17A of the Prevention of Corruption Act is required only for investigations involving official decisions or recommendations, not for ex facie criminal acts.

COMMON ORDER

[Crl.MC Nos.7542/2018, 3960/2019, 5833/2019, 6212/2019, 464/2020, 8308/2018]

In all the Crl.M.Cs, the respective petitioners stand arrayed as accused in different crimes, registered against each of them, under the provisions of Prevention of Corruption Act,1988. They challenge the prosecution proceedings launched against them.

2. Crl.M.C.No.7542/2019 is filed by the Secretary of Mughu Service Co-operative Bank, Kasaragod. Crl.M.C.No..8308/2018 is filed by the Director Board Members of the above Co-operative Bank. The petitioner in Crl.M.C No.7542/2018 is the second accused and the petitioners in Crl.M.C.No.8308/2018 are the accused Nos. 5 to 10 and 12 to 14 in a complaint filed before the Enquiry Commissioner and the Special Judge, Thalassery, under section 190 of the Code of Criminal Procedure, alleging commission of offences punishable under section 13(1)( c) (i) and 13 (1) (d) (ii) read with section 13(2) of the Prevention of Corruption Act 1988. The petitioners in all the other Crl.M.Cs are respectively accused Nos.1,3 , 8 and 9 in FIR No.1/2018 of VACB Ernakulam unit, for offences punishable under sections 13(2) read with 13 (1)(d) of the Prevention of Corruption Act 1988 and Sections 201, 204, 464, 465,471 and section 120B of IPC.

3. In the complaint laid against the petitioners in Crl.M.C.Nos.7542/2018 and Crl.MC.8308/2018, the defacto complainant alleged that officers and the Director Board members of the Co-operative bank, had committed financial irregularities. A quick verification was ordered by the special judge. Relying on the report submitted by the Vigilance, the court by an order dated 17/9/2018 directed the Vigilance to register a crime and to conduct investigation. By the above order, it was held that the offences alleged against the accused was one for misappropriation and was not relatable to any recommendation made or decision taken by the public servant in discharge of his official function and hence the previous approval under section 17A of the Prevention of the Corruption (Amendment) Act 2018 was not required. This order is under challenge in the above Crl.M.Cs at the instance of the accused, inter alia, on the ground that section 17A was applicable to the facts of the case and the court below was not justified in dispensing with the approval under section 17A of the amended Prevention of Corruption Act.

4. In the remaining Crl.M.Cs, FIR was laid pursuant to a complaint filed by a public interest litigant, before the Vigilance and Special Court, alleging misappropriation of funds. VC No.1/2018 was registered by the VACB, Ernakulam Unit, for the offences mentioned above and the investigation is progressing. The above proceeding is challenged by the accused contending that previous approval under section 17A of the Prevention of Corruption Act, 2018 was not obtained and hence the prosecution was bad. It was also contended that the allegations of fraud and financial irregularities raised in the private complaint were false and proceedings were launched with malafide motives. It was further contended that, there was no material to establish the alleged offences attributed to the accused.

5. Essentially, the question that arises in all the cases is whether section 17A of the Prevention of Corruption Act, 2018 is an omnibus pre requisite, applicable to every investigation, enquiry or inquiry. The specific contention of the accused was that, section 17A was intended to prevent misuse of the provisions of the Prevention of Corruption Act, by using it against honest officers and hence, a proceeding launched sans such statutory requirement was bad.

6.The question whether sanction under section 197 Cr.P.C.is a mandatory requirement preceeding every action taken by the authority has been the subject matter for consideration in a catena of decisions. Section 197 of the Cr.P.C.provides that, no court shall take cognizance of an offence involving a public servant who was accused of an offence alleged to have