The Kerala High Court has ruled that for offenses like falsification of accounts, breach of trust, and misappropriation of funds or acts which are ex facie criminal, no prior approval as prescribed under section 17A of the Prevention of Corruption Act is required.
Justice Sunil Thomas while dismissing a batch of applications observed:
"...it has to be noted that scope of section 17A is specifically confined to "any recommendation made or decision taken by a public servant" which alone falls within the protection under section 17A. Definitely, the case of offenses like misappropriation of funds, fraud, falsification of accounts, criminal breach of trust, conspiracy, etc. cannot be covered by the protection under section 17A. Definitely, they do not involve any decision or recommendation at all."
The bench was deciding a few connected matters where the petitioners were accused of offenses punishable under Sections 13(2) read with 13 (1)(d) of the Prevention of Corruption Act,1988. They had moved the Court challenging the prosecution proceedings launched against them. The primary question that arose in all these cases was whether section 17A of the Prevention of Corruption Act is an omnibus prerequisite, applicable to every investigation, inquiry, i.e, whether previous approval from the competent authority needs to be obtained for every inquiry, inquiry, or investigation, into every offense committed by the public servant.
The said CrPC provision dictates that no court shall take cognizance of an offense involving a public servant who was accused of an offense alleged to have been committed by him, while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the concerned competent authority. The Court noted that the question of whether this sanction under section 197 was a mandatory requirement preceding every action taken by the authority was the subject matter for consideration in a catena of decisions.
Therefore, it was concluded that if a criminal offense is committed by a public servant, which is unconnected with his duty, sanction under Section 197 was not required, since it undoubtedly does not form part of his official duty or purported to be done, in the discharge of his official duty.
The Court thereafter considered the scope of Section 17 of PC Act in the background of the law laid down in that context, although it admitted that Section 197(1) Cr.P.C.and Section 17A of the P.C. Act operate in two different fields and in distinct situations, and have nothing in common. However, it found that the consistent principle laid down in relation to any offense committed by a public servant while acting or purporting to act in the discharge of his official duty can be profitably adverted to answer the legal issue involved in relation to section 17A of the PC Act.
Therefore, it was decided that any commission of offense or allegation of acts of public servants which is ex facie criminal or constitute an offense or even demanding illegal consideration or receiving of it either to routinely move the file or to keep the file pending, without any decision being taken therein, will not fall within the scope of section 17A.
Hence, prior approval under section 17A is not warranted in such cases.