Section 17-A, POCA: The Shield That Risks Becoming a Sword

The Supreme Court’s interpretation of Section 17-A, Prevention of Corruption Act (POCA) in Nara Chandrababu Naidu v. State of A.P. has reignited the debate on whether the provision operates prospectively or retrospectively.

This question is not just academic — it often determines whether prosecutions survive or collapse.

Corruption at the initial stages was considered confined only to the bureaucracy. The first and the second world war conditions enormously magnified the menace of corruption. The aftermath of the war led to the shortage of various goods which lead to the imposition of control and schemes for the post-war reconstruction. This in turn gave the wide discretion to the public servant and in turn enticed them with the shimmering shines of wealth and property.

Legislative intent to introduce POCA

Prior to the POCA, law like the Penal Code, 1860 and the earlier Prevention of Corruption Act were considered ineffective in dealing with the complex nature of the financial crimes and the sophisticated methods used to launder money.

The key motivation behind the POCA was to ensure that the criminals would not be able to enjoy the financial benefit derived from the crime. It was aimed to provide law enforcement agencies with the necessary power to investigate and confiscate assets.

Limitations of earlier legislation of POCA (1947)

The Prevention of Corruption Act, 1947 which was enacted had limitations, including a narrow definition of public servant and inadequate penalties. This created a need for a more comprehensive and effective law to combat corruption. Therefore, the Prevention of the Corruption Act, 1947 was required to be subsequently amended from time to time as the Act had shortcomings and could not deal with various circumstances.

Key changes

The Parliament passed the Prevention of the Corruption Act, 1988 to control the growing menace of corruption which was undermining the public trust in the government institutions and public sector companies. The Prevention of Corruption Act, 1988 broadened the definition of “public servant” to include a wider range of individuals involved in public duties. The Act provided for penalties including fine and the jail time in order to discourage and punish the corrupt activity.

Pivotal amendments

The Prevention of the Corruption (Amendment) Act, 2018 brought into the existence Section 17-A which was inserted after Section 17 of the principal Act. Section 17-A was brought into the force on 26-7-2018 along with a slew of amendments. These amendments aimed to further strengthen the law and align it with international anti-corruption standards, such as those set by the UN Convention Against Corruption (UNCAC).

17-A. Enquiry or Inquiry or investigation of the offences relatable to the recommendations made or decision taken by the public servant in discharge of the official functions or the duties.— (1) No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is related to any recommendation made or decision taken by public servant in discharge of his official functions or duties, without the previous approval—

(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union of that Government;

(b) in the case of a person who is or was employed at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office, at the time with the offence was alleged to have been committed:

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.

Explaining the proviso’s

(a) The first proviso to Section 17-A states that such approval is not necessary in cases which involve arrest of the person on the spot on the charges of accepting undue advantage.

(b) The first proviso to Section 17-A refers to the cases wherein the public servant is charged with acceptance of the undue advantage/attempt thereof. A prior approval or sanction to investigate such officer in a trap case is likely to defeat the very purpose of the trap and the investigation which is not the underline intention of the legislature.

Key judgments

(1) B.S. Yeddiyurappa v. A. Alam Pasha¹

The questions involved were — what was the relevant consideration which the appropriate authority/government was expected to look into before the grant of the approval for the initiation of any enquiry, inquiry or investigation by the police under Section 17-A POCA. Also, while granting the approval under Section 17-A POCA, the considerations which weighed with the appropriate authority/Government were fundamentally different from the one, the Magistrate is ordinarily expected to apply while passing an order under Section 156(3) CrPC. The changes brought about by Section 17-A and the amended section of the POCA are substantive in nature and not merely procedural.

(2) State of Rajasthan v. Tejmal Choudhary²

The question arose whether Section 17-A POCA would apply to the investigation which had commenced before Section 17-A was enacted/enforced. It was observed that Section 17-A POCA is substantive in nature and therefore is applicable prospectively.

It was also observed that the Court has to go by the plain words of the statute to construct the legislative intent and that it could not have been the intent of the legislature that all the pending investigations up to July 2018 should be rendered infructuous.

(3) State of Telangana v. Managipet³

The Supreme Court had rejected the arguments advanced that the amended provisions of Section 17-A POCA would be applicable to the first information report (FIR) registered before the said amendment came into force and found that the High Court had rightly held that no grounds were made for quashing the proceedings.

Decoding Section 17

Section 17-A was introduced into the Act as the object of the section was to protect public servants from malicious, vexatious or baseless prosecution. However, the official act done by the public servant which involved the element of dishonest/impropriety then the approval of the competent authority is required to proceed against.

Section 17-A is clearly a filter which the prosecution must pass in order to discourage/avoid vexatious prosecution. However, the same cannot be considered as a protective shield for the guilty.

Under Section 17-A the authority concerned shall convey its decision within a period of three months which may for the reasons to be recorded in writing by such authority may be extended for further period of one month.

Section 19 POCA bars the courts from taking cognizance of an offence punishable under the POCA said to have been committed by the public servants except with the prior sanction of the authorities concerned mentioned therein. While Section 17-A bars the police officer from conducting any enquiry or inquiry or investigation of the offences relatable to the recommendations made or decision taken by the public servant in discharge of the official functions or duties without the previous approval of the authorities concerned.

Section 17-A revolves around four aspects —

(i) enquiry or inquiry or investigation of the offences under the POCA;

(ii) alleged offences should be relatable to the recommendation made on decision taken by the public servant;

(iii) such recommendations or decisions made or taken by the public servant should be in discharge of his official functions or duties; and

(iv) previous approval was required in Subramanian Swamy v. Manmohan Singh⁴ wherein it was observed that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against the corruption. In a situation when two constructions are eminently reasonable, the Court has to accept the one that seeks to eradicate corruption than the one which seeks to perpetuate it.

(4) Srimathi ShreeRoopa v. State of Karnataka⁵

Section 17-A casts an obligation on the application of the mind on the part of the competent authority in three situations. The sections make it clear that no officer shall conduct enquiry/inquiry/investigation without the previous approval. Therefore, the approving authority will have to look into the material and apply its mind into three contingencies — enquiry or inquiry, or investigation.

Enquiry and inquiry are often used interchangeably but there exists a difference between the two. Source of both enquiry and inquiry would be the same as “en” is derived from French and “in” is from Latin. Inquiry is formal and enquiry is informal and can be unofficial. Enquiry could even mean to question. Inquiry is a formal investigation; investigation is a search.

It therefore, becomes imperative for the authority to apply its mind to what is brought before it. The application of the mind by the competent authority is demonstrated only when there is a recording of the reasons in the order.

(5) Nara Chandrababu Naidu v. State of A.P.⁶

The Supreme Court has exhaustively dealt with the question whether Section 17-A POCA has retrospective effect. It also had to deal with interpretation of the Section 17-A POCA.

The main argument revolved around non-compliance of Section 17-A POCA in implicating the appellant under Sections 12 and 13(2) read with Sections 13(1)(c) and (d) POCA. The High Court had held that the said provision Section 17-A cannot be made applicable to an offence committed prior to 26-7-2018. The High Court had primarily come to a conclusion that Section 17-A cannot be given retrospective effect.

The Supreme Court observed that Section 17-A would be applicable to the offences under the POCA as amended by the Amendment Act of 2018 and not to the offences existing prior to the said amendment. Since different views on the interpretation of the Section 17-A POCA were taken, therefore, the matter was referred to the Chief Justice of India for an appropriate decision.

My considered view

Considering the provisions of Section 17-A POCA should be made applicable prospectively. The intention of legislature cannot be stretched to mean and intend some things which did not find the first place in the Section 17-A POCA. Though Section 17-A POCA was brought into existence with intent to protect officers who are unnecessarily harassed and pressurised with baseless and vexatious allegations there is also a high chance of the same being misused to shelter those who are caught in the trap net.