The Haryana vigilance division on Tuesday mentioned the requirement of Section 17A of the Prevention of Corruption Act (PCA), which pertains to looking for prior approval from the state authorities for conducting an enquiry, inquiry or investigation towards a serving or retired public servant, won’t apply when the general public servant is allegedly an ex-facie prison and in entice circumstances.

As per a communication, pertaining to straightforward working procedures (SoPs) for processing circumstances beneath Section 17-A of the PC Act, issued by chief secretary Sanjeev Kaushal on Tuesday, an ex-facie prison act means offenses dedicated beneath completely different provisions of Indian Penal Code (IPC) resembling forgery (Section 465), dishonest (Section 420), misappropriation (Section 403), and fraud (Section 421).

Trap circumstances are these involving the arrest of an individual on the spot on the cost of accepting or making an attempt to simply accept any undue benefit for himself or for another individual, the communique mentioned, including that ought to any doubt come up, it must be referred to the competent authority for a call.

SoPs reconsidered in view of SC judgement

The chief secretary mentioned the difficulty of a police officer acquiring prior approval for conducting an enquiry, inquiry or investigation of offenses associated to suggestions made or determination taken by a public servant in discharge of official capabilities has been reconsidered in mild of a Supreme Court judgement ( November 14, 2019) in a evaluation petition (Yashwant Sinha v/s CBI).

“After comprehensive consideration, the legal mandate of Section 17-A of the PC Act comes out that a police officer is mandated to obtain previous approval of the government for conducting enquiry, inquiry or investigation of offenses relatable to recommendations made or decision taken by a public servant in discharge of official functions or duties. Keeping in view the need to further streamline the vigilance function in the state, the vigilance bureau and police department shall ensure meticulous compliance of the newly inserted provision of Section 17 of the PC Act and seek prior approval, except in trap cases or when the alleged act is an ex-facie criminal. The competent authority shall convey the decision thereon to the investigating agencies within 15 days,” it mentioned.

,FIR registration with out prior approval unlawful’

Legal specialists held that registration of an FIR (first info report) beneath the PC Act towards a public servant with out looking for the prior approval of the federal government was unlawful. “Such FIRs are unmaintainable under the law,” excessive courtroom lawyer Ashwani Talwar had instructed HT in April.

As per a March 1, 2011 judgement of a Supreme Court bench, comprising Justice P Sathasivam and Dr BS Chauhan, investigation beneath the Code of Criminal Procedure (CrPC) commences with lodging info associated to the fee of an offence.

“If it is a cognisable offence, the officer-in-charge of the police station, to whom the information is supplied orally has a statutory duty to reduce it to writing and get the signature of the informant. He shall enter the substance of the information, whether given in writing or reduced to writing as aforesaid, in a book prescribed by the state,” the apex court judgment said.

Senior high court advocate and criminal lawyer Vikram Chaudhri said if the offending act falls within the sweep of Section 17A of the PC Act, it is obligatory and mandatory to seek prior approval of the authority concerned before embarking upon any enquiry, inquiry or investigation. “Therefore, the procedure under Section 17A is the mandate and any breach would result in vitiation of the proceedings,’ Chaudhri said.

Supreme Court justice KM Joseph, in his November 14, 2019 order, said, “Even proceeding on the basis that on petitioners’ complaint, an FIR must be registered as it purports to disclose cognizable offenses and the Court must so direct, will it not be a futile exercise having regard to Section 17A.”