Violation Of Section 17A Of Prevention Of Corruption Act Would Not Vitiate Investigation When No Prejudice Was Caused To Accused: Jammu & Kashmir & Lakh High Court

The petitioners had approached the High Court challenging an FIR registered under Section 7 of the Prevention of Corruption Act (PC Act), read with Section 120-B IPC.

The Single Bench of Justice Sanjay Dhar said, “Thus, no prejudice has been caused to the petitioners because of the investigation conducted during the period when the veil of approval was not in place. Therefore, in the peculiar facts and circumstances of this case, the part of investigation conducted by the respondent Investigating Agency in violation of Section 17A of the PC Act would not vitiate the same, nor would it affect the registration of the impugned FIR and the investigation conducted pursuant thereto.”

Senior Advocate Syed Faisal Qadiri represented the Petitioner while Senior AAG Mohsin Qadiri represented the Respondent.

Factual Background

A Joint Surprise Check (JSC) was conducted by the Anti-Corruption Bureau to look into the allegations that certain touts and agents were operating in the ARTO Office, Anantnag. It was alleged that the officers/officials in league with these touts prepared registration and fitness certificates for heavy commercial vehicles and also issued driving licenses in lieu of bribes. The JSC conducted on the day of the driving trial test revealed that most of the application forms for issuance of driving licenses were bearing codes written in pencil, which were found to be abbreviations of the names of some of the touts/agents.

During the course of the enquiry, statements of some of the applicants who had appeared for the driving test revealed that they had paid bribes for the issuance of driving licenses through agents/touts for the Board members of the ARTO Office, Anantnag. It was further alleged that the officers/officials, under a well-knit conspiracy with touts/agents, in lieu of pecuniary benefits, abused their official positions while conferring undue benefit upon the touts and the candidates.

Reasoning

Referring to Section 17A of the PC Act, the Bench explained that if an act constituting an offence under the PC Act is committed by a public servant and the said act has nexus with his official functions or duties, previous approval of the Government is necessary for undertaking any enquiry, inquiry or investigation. “It does appear from the perusal of the language of Section 17A that approval of the competent authority is imperative before proceeding to hold an enquiry, inquiry or investigation into an alleged administrative or official act of a public servant”, it said.

Coming to the facts of the case, the Bench noted that the allegations made in the impugned FIR were general in nature without pinpointing any Board member or any particular officer/official of ARTO, Anantnag. The Case Diary also revealed that it was for the first time in the month of August 2021 that the Investigating Agency suspected the role of petitioners in the alleged activities.

The proceedings/investigation conducted by the respondent Investigating Agency from the stage of obtaining search warrants in respect of premises of the petitioners till the stage of obtaining approval under Section 17A of the PC Act was contrary to law. However, the Bench held that the same could not form a ground for quashing the impugned FIR or the entire investigation conducted so far.

Reference was made to the observation of Justice in the judgment of the Apex Court in Nara Chandrababu Naidu vs. State of AndhraPradesh and Ors. (2024) stating that absence of an approval as contemplated in Section 17A for conducting enquiry, inquiry or investigation of the offences alleged to have been committed by a public servant in purported exercise of his official functions or duties, would neither vitiate the proceedings nor would be a ground to quash the proceedings or the FIR registered against such public servant.

“Therefore, in the peculiar facts and circumstances of this case, the part of investigation conducted by the respondent Investigating Agency in violation of Section 17A of the PC Act would not vitiate the same, nor would it affect the registration of the impugned FIR and the investigation conducted pursuant thereto”, the Bench held while dismissing the Petition.

Cause Title: Asif Amin Chalkoo & Ors. v. UT of J&K (Case No.: CRM(M) No.197/2023)

Appearance

Petitioner: Senior Advocate Syed Faisal Qadiri, Advocate Khursheed

Respondent: Sr. AAG Mohsin Qadiri, Assisting Counsel Nadiya Abdullah

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