# Nara Chandrababu Naidu v. The State of Andhra Pradesh & Anr

- **Citation:** 2024 INSC 41
- **Court:** Supreme Court of India
- **Decided:** 2024-01-16
- **Case number:** Criminal Appeal No. 279 of 2024
- **Bench:** Aniruddha Bose, Bela M. Trivedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nara-chandrababu-naidu-v-the-state-of-andhra-pradesh-anr-37434
- **Pages:** 55

## Headnote

Interpretation of s.17A, Prevention of Corruption Act, 1988
incorporated by the Prevention of Corruption (Amendment) Act,
26 of 2018 and its applicability to the facts of the present case.
Headnotes
Prevention of Corruption Act, 1988 - s.17A inserted by the
Prevention of Corruption (Amendment) Act, 26 of 2018 -
Operation - Allegations against the appellant for commission
of offences u/ss.166, 167, 418, 420, 465, 468, 471, 409, 209
and 109 r/w ss.120-B, 34, 37, IPC and ss.12, 13(2) r/w ss.13(1)
(c) and (d), 1988 Act allegedly committed between 2015 and
2019 when he was the Chief Minister of the State of Andhra
Pradesh - FIR was registered in 2021 initially against 26
accused, the appellant was later added as accused- Appellant
sought quashing of the FIR and the order of remand passed
by the Special Court - Dismissed by High Court - Plea of
the appellant inter alia that the absence of prior approval as
mandated by s.17A vitiated the conduct of enquiry or inquiry
or investigation:
Held: Per Aniruddha Bose, J. If an enquiry, inquiry or investigation
is intended in respect of a public servant on the allegation of
commission of offence under the 1988 Act after s.17A thereof
becomes operational, which is relatable to any recommendation
made or decision taken, at least prima facie, in discharge of his
official duty, previous approval of the authority postulated in subsection (a) or (b) or (c) of s.17A shall have to be obtained - In
absence of such previous approval, the action initiated under the
1988 Act shall be illegal - In the present case, original FIR was
registered on 09.12.2021 and the appellant was implicated on
550
[2024] 1 S.C.R.
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08.09.2023 - There is no evidence of any substantive enquiry,
inquiry, or investigation made against him prior to coming into
operation of s.17A - Appellant cannot be proceeded against
for offences under the 1988 Act as no previous approval of the
appropriate authority was obtained - Per Bela M. Trivedi, J. s.17A
having been introduced as a part of larger legislative scheme,
and the other offences under the PC Act having been redefined
or newly inserted by way of Amendment Act, 2018, is required
to be treated as substantive and not merely procedural in nature
- Such a substantive amendment could not be made applicable
retrospectively to the offences like ss.13(1)(c) and 13(1)(d) which
have been deleted under the Amendment Act, 2018 - Intention of the
legislature was to make s.17A applicable only to the new offences
as amended by Amendment Act, 2018 and not to the offences
which existed prior to the coming into force of the Amendment Act
2018 - In the instant case, the offences u/s.13(1)(c) and (d) were
in force when the same were allegedly committed by the appellant
- Deletion of the said provisions and the substitution of the new
offence u/s.13 by the Amendment Act, 2018 would not affect the
right of the investigating agency to investigate nor would vitiate
or invalidate any proceedings initiated against the appellant - In
view of difference of opinion, matter referred to the Hon'ble the
Chief Justice of India for constitution of a Larger Bench. [Paras
12, 13, 20, 34 and 15, 21, 27]
Prevention of Corruption Act, 1988 - Penal Code, 1860 - Code of
Criminal Procedure, 1973 - s.223 - Allegations of commission
of offences against the appellant under different provisions of
IPC and 1988 Act - Appellant was added as accused by filing
the Accused Adding Memo - By the Amendment Act 2018,
several provisions, particularly the offences described under
ss.7, 8, 9, 10 and 13 in the 1988 Act were substituted with the
new provisions; and several new provisions like s.17A were
inserted - Appellant filed petition seeking quashing of the FIR
and the consequential order of remand passed by the Special
Court, dismissed by High Court - Appellant argued that if the
initial action was not in consonance with law, all subsequent
and consequential proceedings would fall and once offences
un

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* Author
[2024] 1 S.C.R. 549 : 2024 INSC 41
Nara Chandrababu Naidu
v.
The State of Andhra Pradesh & Anr.
(Criminal Appeal No. 279 of 2024)
16 January 2024
[Aniruddha Bose* and Bela M. Trivedi,* JJ.]
Issue for Consideration
Interpretation of s.17A, Prevention of Corruption Act, 1988
incorporated by the Prevention of Corruption (Amendment) Act,
26 of 2018 and its applicability to the facts of the present case.
Headnotes
Prevention of Corruption Act, 1988 - s.17A inserted by the
Prevention of Corruption (Amendment) Act, 26 of 2018 -
Operation - Allegations against the appellant for commission
of offences u/ss.166, 167, 418, 420, 465, 468, 471, 409, 209
and 109 r/w ss.120-B, 34, 37, IPC and ss.12, 13(2) r/w ss.13(1)
(c) and (d), 1988 Act allegedly committed between 2015 and
2019 when he was the Chief Minister of the State of Andhra
Pradesh - FIR was registered in 2021 initially against 26
accused, the appellant was later added as accused- Appellant
sought quashing of the FIR and the order of remand passed
by the Special Court - Dismissed by High Court - Plea of
the appellant inter alia that the absence of prior approval as
mandated by s.17A vitiated the conduct of enquiry or inquiry
or investigation:
Held: Per Aniruddha Bose, J. If an enquiry, inquiry or investigation
is intended in respect of a public servant on the allegation of
commission of offence under the 1988 Act after s.17A thereof
becomes operational, which is relatable to any recommendation
made or decision taken, at least prima facie, in discharge of his
official duty, previous approval of the authority postulated in subsection (a) or (b) or (c) of s.17A shall have to be obtained - In
absence of such previous approval, the action initiated under the
1988 Act shall be illegal - In the present case, original FIR was
registered on 09.12.2021 and the appellant was implicated on
550
[2024] 1 S.C.R.
Digital Supreme Court Reports
08.09.2023 - There is no evidence of any substantive enquiry,
inquiry, or investigation made against him prior to coming into
operation of s.17A - Appellant cannot be proceeded against
for offences under the 1988 Act as no previous approval of the
appropriate authority was obtained - Per Bela M. Trivedi, J. s.17A
having been introduced as a part of larger legislative scheme,
and the other offences under the PC Act having been redefined
or newly inserted by way of Amendment Act, 2018, is required
to be treated as substantive and not merely procedural in nature
- Such a substantive amendment could not be made applicable
retrospectively to the offences like ss.13(1)(c) and 13(1)(d) which
have been deleted under the Amendment Act, 2018 - Intention of the
legislature was to make s.17A applicable only to the new offences
as amended by Amendment Act, 2018 and not to the offences
which existed prior to the coming into force of the Amendment Act
2018 - In the instant case, the offences u/s.13(1)(c) and (d) were
in force when the same were allegedly committed by the appellant
- Deletion of the said provisions and the substitution of the new
offence u/s.13 by the Amendment Act, 2018 would not affect the
right of the investigating agency to investigate nor would vitiate
or invalidate any proceedings initiated against the appellant - In
view of difference of opinion, matter referred to the Hon'ble the
Chief Justice of India for constitution of a Larger Bench. [Paras
12, 13, 20, 34 and 15, 21, 27]
Prevention of Corruption Act, 1988 - Penal Code, 1860 - Code of
Criminal Procedure, 1973 - s.223 - Allegations of commission
of offences against the appellant under different provisions of
IPC and 1988 Act - Appellant was added as accused by filing
the Accused Adding Memo - By the Amendment Act 2018,
several provisions, particularly the offences described under
ss.7, 8, 9, 10 and 13 in the 1988 Act were substituted with the
new provisions; and several new provisions like s.17A were
inserted - Appellant filed petition seeking quashing of the FIR
and the consequential order of remand passed by the Special
Court, dismissed by High Court - Appellant argued that if the
initial action was not in consonance with law, all subsequent
and consequential proceedings would fall and once offences
under the PC Act were effaced from existence, the custody
of the appellant pursuant to the orders passed by the Special
Court was without any sanction of law:
[2024] 1 S.C.R.
551
Nara Chandrababu Naidu v. The State of Andhra Pradesh & Anr.
Held: Per Aniruddha Bose, J. The offences against the appellant
relate to the same or similar set of transactions in relation to which
the Special Judge was proceeding with the case initiated by the
F.I.R. dated 09.12.2021 against the other accused persons - Sub
clause (a) of the s.223, so far as charging and trying of an accused
is concerned, could apply in the present case, as the non-obstante
clause with which s.4, 1988 Act is couched, would not oust the
principles contained in s.223 - Remand order not interfered with
as the Special Judge had the jurisdiction to pass such order
even if the offences under the 1988 Act could not be invoked at
that stage - Lack of approval in terms of s.17A would not have
rendered the entire order of remand non-est - Appellant could
be proceeded against before the Special Judge for allegations
of commission of offences under the IPC for which also he has
been implicated - Per Bela M. Trivedi, J. Appellant having been
implicated for the other offences under IPC also, the Special Court
was completely within its jurisdiction to pass the remand order in
view of the powers conferred upon it u/ss.4, 5 of the 1988 Act - No
jurisdictional error committed by the Special Court in passing the
order of remand - Impugned judgment and order passed by the
High Court also does not suffer from any illegality, not interfered
with. [Paras 30, 33, 34 and 29]
Case Law Cited
In the judgment of Aniruddha Bose, J.
Dr. S.M. Mansoori(Dead) Through Legal Representatives
v. Surekha Parmar and Others (2023) 6 SCC 156; State
of Rajasthan v. Tejmal Choudhary 2021 SCC Online
SC 3477 - distinguished.
Ebha Arjun Jadeja and others v. State of Gujarat (2019)
9 SCC 789 - held inapplicable.
Shambhoo Nath Misra v. State of U.P. & Others [1997]
2 SCR 1139: (1997) 5 SCC 326; State of Uttar Pradesh
v. Paras Nath Singh [2009] 8 SCR 85: (2009) 6 SCC
372; Matajog Dobey v. H. C. Bhari [1955] SCR 925:
AIR 1956 SC 44; State of Telangana v. Managipet
alias Mangipet Sarveshwar Reddy (2019) 19 SCC
87; Anant Gopal Sheorey v. State of Bombay [1959]
SCR 919: AIR 1958 SC 915; Rattan Lal v. State of
Punjab [1964] SCR 676: AIR 1965 SC 444; CBI v.
552
[2024] 1 S.C.R.
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R.R. Kishore 2023 INSC 817; Yashwant Sinha and
Others v. Central Bureau of Investigation through
its Director and Another [2019] 17 SCR 917: (2020)
2 SCC 338; Rameshbhai Dabhai Naika v. State of
Gurajat and Others [2012] 2 SCR 104: (2012) 3 SCC
400; Neeharika Infrastructure Pvt. Ltd. v. State of
Maharashtra AIR 2021 SC 315; State v. M. Maridoss
(2023) 4 SCC 338; R.P. Kapur v. State of Punjab
AIR 1960 SC 866; State of Haryana v. Bhajan Lal
[1990] 3 Suppl. SCR 259: (1992) Supp. (1) SCC
335; Mahmood Ali & others v. State of UP 2023 INSC
684; State through Central Bureau of Investigation,
New Delhi v. Jitender Kumar Singh [2014] 2 SCR
621: (2014) 11 SCC 724; Chiranjilal Goenka v. Jasjit
Singh & Others [1993] 2 SCR 454: (1993) 2 SCC
507; State of Tamil Nadu v. Paramasiva Pandian
[2001] 4 Suppl. SCR 525: (2002) 1 SCC 15; State
of Punjab v. Davinder Pal Singh Bhullar (2011) 14
SCC 427; Kaushik Chaterjee v. State of Haryana
[2020] 9 SCR 311: (2020) 10 SCC 92; A. Sreenivasa
Reddy v. Rakesh Sharma and Another 2023 INSC
682; Vivek Gupta v. Central Bureau Investigation and
Another [2003] 3 Suppl. SCR 1087: (2003) 8 SCC
628 - referred to.
In the judgment of Bela M. Trivedi, J.
Subramanian Swamy v. Director, Central Bureau of
Investigation and Another [2014] 6 SCR 873: (2014) 8
SCC 682 - followed.
Vineeta Sharma v. Rakesh Sharma and Others [2020]
10 SCR 135: 2020 (9) SCC 1; Hitendra Vishnu Thakur
and Others v. State of Maharashtra and Others [1994] 1
Suppl. SCR 360: (1994) 4 SCC 602; State of Telangana
v. Managipet @ Mangipet Sarveshwar Reddy (2019)
19 SCC 87; State of Rajasthan v. Tejmal Choudhary
2021 SCC Online SC 3477; Subramanian Swamy
v. Manmohan Singh and Another [2012] 3 SCR 52:
(2012) 3 SCC 64; M.C. Gupta v. Central Bureau of
Investigation, Dehradun [2012] 7 SCR 455: (2012) 8
SCC 669 - relied on.
[2024] 1 S.C.R.
553
Nara Chandrababu Naidu v. The State of Andhra Pradesh & Anr.
Yashwant Sinha and Others v. Central Bureau of
Investigation through its Director and Another [2019]
17 SCR 917: (2020) 2 SCC 338 - held inapplicable.
Anant Gopal Sheorey v. State of Bombay [1959]
SCR 919: AIR 1958 SC 915; Rattan Lal v. State of
Punjab [1964] SCR 676: AIR 1965 SC 444; State of
Punjab v. Davinder Pal Singh Bhullar (2011) 14 SCC
427; R.P. Kapur v. State of Punjab AIR 1960 SC 866;
State of Haryana v. Bhajan Lal [1990] 3 Suppl. SCR
259: (1992) Supp. (1) SCC 335; G.J. Raja v. Tejraj
Surana (2019) 9 SCC 469; S. Gopal Reddy v. State
of A.P. [1996] 3 Suppl. SCR 439: 1996 (4) SCC
596; Indian Handicrafts Emporium & Ors v. Union of
India & Ors. [2003] 3 Suppl. SCR 43: 2003 (7) SCC
589; Asian Resurfacing of Road Agency Pvt. Ltd. &
Anr. v. Central Bureau of Investigation [2018] 2 SCR
1045: 2018 (16) SCC 299; R.M.D. Chamarbaugwalla
& Anr. v. Union of India & Anr; AIR 1957 SC 628 -
referred to.
List of Acts
Prevention of Corruption Act, 1988; Prevention of Corruption
(Amendment) Act, 26 of 2018; Penal Code, 1860; Code of Criminal
Procedure, 1973.
List of Keywords
Misappropriation of government funds; Siphoning of public funds;
Quashing of the FIR; Remand order; Public servant; Previous
approval of the appropriate authority; Amendment prospective,
retrospective or retroactive; Interpretation of Statutes; Special
Court; Jurisdictional error.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 279
of 2024.
From the Judgment and Order dated 22.09.2023 of the High Court of
Andhra Pradesh at Amravati in CRLP No.6942 of 2023.
554
[2024] 1 S.C.R.
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Appearances for Parties
Harish N Salve, Sidharth Luthra, Dammalpati Srinivas, Pramod
Kumar Dubey, Siddharth Aggarwal, Sr. Advs., Guntur Prabhakar,
Ms. Prerna Singh, Guntur Pramod Kumar, Kumar Vaibhaw, Gautam
Bhatia, Anmol Kheta, Ayush Kaushik, Rajni Gupta, Vishwajeet Singh,
Ayush Shrivastava, Mohd. Ashaab, Ms. Aditi, Satyam Sharma, Advs.
for the Appellant.
P Sudhakar Reddy, A.A.G., Mukul Rohatgi, Ranjit Kumar, Jaideep
Gupta, S Niranjan Reddy, Sr. Advs., Mahfooz Ahsan Nazki, Santosh
Krishnan, Polanki Gowtham, K V Girish Chowdary, Ms. Rajeswari
Mukherjee, Sahil Raveen, M. Bala Krishna, Ms. Deepshikha
Sansanwal, T Vijaya Bhaskar Reddy, Meeran Maqbool, Ms. Ruchi
Guasain, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Aniruddha Bose, J.
Leave granted.
2.
The appellant is aggrieved by initiation of a criminal proceeding
against him and his detention in connection with the same by the
respondent State through its CID. Allegations have been made
against him for commission of offences under Sections 166, 167,
418, 420, 465, 468, 471, 409, 209 and 109 read with Sections
120-B, 34 and 37 of the Indian Penal Code, 1860 and Section 12
and 13(2) read with Sections 13(1)(c) and (d) of the Prevention of
Corruption Act, 1988. The said offences are alleged to have been
committed between the years 2015 and 2019, during which period
he was the Chief Minister of the State of Andhra Pradesh. Initially,
a First Information Report dated 09.12.2021 was lodged with CID
Police Station, Andhra Pradesh, Mangalagiri implicating twenty-six
persons as accused. On that basis, CR No. 29/2021 was registered.
The appellant was not included in the array of accused persons in
that F.I.R. The offences primarily relate to siphoning of public funds
and I shall refer broadly to the allegations forming the basis of the
F.I.R. in the succeeding paragraphs of this judgment. The list of
accused persons was subsequently expanded and the appellant
was also arraigned as an accused by an "Accused Adding Memo"
[2024] 1 S.C.R.
555
Nara Chandrababu Naidu v. The State of Andhra Pradesh & Anr.
dated 08.09.2021 lodged before the Special Judge, SPE & ACB
cases (hereinafter referred to as "the Special Judge"). The appellant
was implicated as accused no.37, whereas another individual,
Kinjarapu Atchannaidu was made the 38th accused. The latter is a
former minister of Andhra Pradesh and appears to be a member
of the legislative assembly of that State at present. The appellant
was arrested on 09.09.2023 and was produced before the Special
Judge on 10.09.2023. He was remanded to judicial custody by the
Special Judge. The appellant applied before the High Court on
12.09.2023 for quashing the F.I.R. in Crime No. 29 of 2021 implicating
him, invoking the jurisdiction of the Court under Section 482 of the
Code of Criminal Procedure, 1973 (1973 Code). The legality of the
remand order dated 10.09.2023 was also challenged in the same
petition before the High Court. The appellant's plea was rejected
and his petition was dismissed on 22.09.2023 by a learned Single
Judge. The present appeal is against this judgment of dismissal of
the said petition.
3.
The primarily allegation against the appellant is facilitating diversion
of public money in the approximate range of Rs.370/- crores, which
was to be used for setting up of six clusters of skill development
centres in Andhra Pradesh. For this purpose, Andhra Pradesh
State Skill Development Corporation (hereinafter referred to as
"APSSDC") was established through a memorandum numbered
as G.O.Ms. No.47 dated 10.09.2014 (referred to as 13.12.2014 in
the order of the Special Judge dated 10.09.2023) issued by the
Higher Education (EC A2) Department. APSSDC entered into an
agreement with two corporate entities, Siemens Industry Software
India Pvt. Ltd. ("SIEMENS" in short) and Design Tech India Pvt.
Ltd. (we shall refer to it henceforth as "Design Tech"). The original
object, in terms of a memorandum numbered as G.O.Ms. No. 4
dated 30.06.2015 issued by the Skill Development, Entrepreneurship
& Innovation (Skills) Department approving the said Agreement,
was to set up six different clusters comprising of one Centre of
Excellence and five Technical Skill Development Institutions and
Skill Development Centres in Andhra Pradesh. The total project
cost was conceived to be Rs.3281,05,13,448/- with each of the six
clusters costing Rs.546,84,18,908/-. Government contribution was
limited to 10 percent of the cost amounting to Rs.55,00,00,000/-
, with SIEMENS and Design Tech providing grant-in-aid of 90%
556
[2024] 1 S.C.R.
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i.e., Rs.491,84,18,908/-. It is the State's case that requirement of
contribution of the two corporate entities was ignored and the final
memorandum of agreement only entailed outflow of Rs.330/- crores
from the State to Design Tech. A signed copy of this memorandum,
which does not carry any date, has been made Annexure R-15 to
the counter-affidavit of the State (Volume IV at page 206).
4.
Submission on the part of the State is that in course of an investigation
by the Additional Director General, GST Intelligence at Pune, while
examining claims of availing CENVAT credit by Design Tech and one
Skillar Enterprises India Pvt. Ltd. ("Skillar"), a financial scam was
unearthed involving both SIEMENS and Design Tech. This was in
relation to funds pertaining to the project of setting up skill development
centres. The complaint of the taxing body was that SIEMENS and
Design Tech had subcontracted substantial part of their work to
Skillar despite there being no provision of any sub-contract in the
Agreement. Design Tech had claimed that Skillar provided training
software development including various sub-modules designed for
high end software for advance manufacturing of CAD/CAM. As per
Design Tech, royalty and subscription were paid to Skillar, as they
developed the software and Skillar had directly supplied the same to
the Skill Development Centres in Andhra Pradesh. As recorded in the
judgment under appeal, when the tax authorities confronted Skillar,
they took a stand that no technical work was sub-contracted and the
training software development modules, which were provided, were
technical materials. According to Skillar royalty and subscription were
wrongly mentioned in the invoices. It appears that an in-depth scrutiny
by the tax authorities showed that the concerned software including
various sub-modules purported to have been supplied by Skillar to
Design Tech was purchased by Skillar from different companies. It
is also the State's stand that these companies were shell/defunct
companies and they had issued invoices without providing any
services and that they were used as vehicles for diverting funds. The
APSSDC had conducted a forensic audit in the year 2020 and the
audit found flaws and irregularities in the systems and in utilisation
of funds between the financial years 2014-2015 and 2018-2019.
5.
As per the investigating authorities a sum of Rs.370/- crores from
the government funds of the APSSDC has been siphoned off. Case
of the State against the appellant is that he was the mastermind,
who had unilaterally appointed G. Subbarao and K Lakshminarayana
[2024] 1 S.C.R.
557
Nara Chandrababu Naidu v. The State of Andhra Pradesh & Anr.
(accused nos. 1 and 2) as MD and CEO, and Director for the Skill
Development Corporation without getting approval from the Andhra
Pradesh Cabinet. It was the appellant who had approved the same
and as per his instruction, Memorandum of Association and Articles of
Association of APSSDC were also approved. As per estimation, costs
for six clusters, were projected as Rs.3319.68 crores but the private
participants did not infuse any fund as per their original obligation.
It is recorded in the impugned judgement that the Andhra Pradesh
Cabinet headed by the appellant at the instance of the accused no.1
had approved sanction of a budget of Rs.370/- crores towards 10%
contribution of the government in the project and G.O.Ms. No.4 dated
30.06.2015 was issued to that effect. The main complaint against the
appellant is that he had fast tracked the project and approved the
cost estimation with criminal intent and by pursuing the government
officials, he had ensured release of Rs.370/- crores. The project was
allotted to Design Tech and SIEMENS on nomination basis, without
following any tender process. Misappropriation of government funds
through corrupt and illegal methods has been alleged and abuse of
official position has been attributed to the appellant. Summary of the
allegations against the appellant is revealed from the Memorandum
dated 08.09.2023, filed on behalf of the prosecution, for adding the
appellant as an accused. These allegations, inter-alia, are to the
following effect: -
"....A-37 by abusing his (A-37) official position, fraudulently
committed criminal breach of trust with a common intention,
caused wrongful loss to the Government exchequer by
allowing accused and others to divert APSSDC funds by
using fake invoices as genuine one for purpose of cheating
through the shell, defunct companies without providing
materials/services to the APSSDC-Siemens project."
6.
On behalf of the appellant, the main argument, which was also made
before the High Court, revolves around non-compliance of Section
17A of the Prevention of Corruption Act, 1988 in implicating the
appellant under Sections 12, 13(2) read with 13(1) (c) and (d) of the
1988 Act and proceeding against him inter-alia, under the aforesaid
provisions. The arguments on behalf of the appellants have been
mainly advanced by Mr. Harish N. Salve and Mr. Siddharth Luthra,
learned Senior Advocates. Mr. Mukul Rohatgi with Mr. Ranjit Kumar,
both learned Senior Counsel have primarily argued on behalf of the
558
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State. It is also the appellant's case that once fault is found with
implicating the appellant under the aforesaid provisions of the 1988
Act, the entire proceeding qua the appellant before the Special Judge
would also collapse because in such a case the Special Judge under
the PC Act would have had acted beyond his jurisdiction and the
remand order would become non-est.
7.
Section 17A was introduced to the 1988 Act with effect from
26.07.2018. The said provision reads: -
"17A. Enquiry or Inquiry or investigation of offences
relatable to recommendations made or decision taken
by public servant in discharge of official functions or
duties.-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 relatable to any recommendation
made or decision taken by such 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 when 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
[2024] 1 S.C.R.
559
Nara Chandrababu Naidu v. The State of Andhra Pradesh & Anr.
months, which may, for reasons to be recorded in writing
by such authority, be extended by a further period of one
month."
8.
The High Court, inter-alia, held that the said provision cannot be
applied to any offence committed prior to 26.07.2018. It has also
been highlighted before us on behalf of the State that offences under
Section 13 (1) (c) & (d) were deleted from the said statute by the
Prevention of Corruption (Amendment) Act, 26 of 2018. It was by
the same Amendment Act, that Section 17A was incorporated in the
said statute. On this basis, it is urged, that any protective measure,
which is conceived in the Amendment Act could not extend to offences
committed when such protective measure for obtaining prior approval
was not a part of the statutory scheme. The High Court primarily
decided the case on the premise that the aforesaid provision cannot
be given retrospective effect.
9.
The other limb of argument of the State, which was also sustained
by the High Court is that a regular inquiry was already ordered
on 05.06.2018 regarding the allegations of corruption against the
officials of APSSDC. This was ordered by the Director General of
Anti-Corruption Bureau, Andhra Pradesh. A redacted version of
this letter dated 05.06.2018 has been annexed in Volume V of the
compilation of documents submitted by the State (at page 2 thereof).
This compilation of documents (pages 2 to 7A of the said volume)
suggests that Anti-Corruption Bureau had been asking for information
in that regard. I quote below the redacted version of the said letter:-

" Office of the Director General

Anti-Corruption Bureau,

Andhra Pradesh,

Vijayawada
Rc No.10/RE-CIU/2018
Dated:5-6-2018
MEMORANDUM
Sub:- Public Servants-Industries Department-Allegations
of corruption against the officials of A.P. State Skill
Development Corporation, Vijayawada-Regular Enquiryordered-Reg.
Ref: 1) Letter of Sri <OMITTED> Pune, dt. 14-5-2018.
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2) CBI Letter No.122 2017 (CE-117/2017) CBI/Pune/3865,
dated 2-10-2017
* * *
The letter of <OMITTED> Pune and letter of CBI, Pune
are enclosed herewith. You are instructed to conduct a
Regular Enquiry into the contents letter of petition and
submit a RE report within the stipulated time. You are
also directed to submit Plan of Action duly approved by
the LA-cum-Special PP, ACB, HO, Vijayawada.
 -Sd/-
For Director General,
Anti-Corruption Bureau,
A.P., Vijayawada
To:
Sri Narra Venkateswara Rao,
DSP, CIU, ACB, Vijayawada."
10. The High Court has accepted the argument of the State that a regular
enquiry was ordered on 05.06.2018 regarding the allegations of
corruption against the officials of APSSDC by the DG Anti-Corruption
Bureau AP before Section 17A of the 1988 Act came into operation i.e.
on 25.07.2018. As a corollary, the requirement of previous approval
as contemplated in the aforesaid provision would not be applicable
in the case of the appellant.
11. First, I shall examine the point as to whether enquiry had commenced
by the letter of 05.06.2018. I have quoted the letter of 05.06.2018
in the preceding paragraph. This letter refers to an earlier letter
dated 14.05.2018 addressed to the Andhra Pradesh Anti-Corruption
Bureau by the Director General of GST Intelligence, Pune submitting
information regarding corruption and siphoning of Government funds
pertaining to APSSDC. The letter dated 05.06.2018 essentially carries
a request for enquiry. There is no indication in the materials produced
before us as to whether any step was taken in pursuance of such
request till the year 2021. The first suggestion of any active enquiry
can be seen in a letter of 22.02.2021 originating from the Deputy
Superintendent of Police, Anti-Corruption Bureau of that State, which
states that the bureau is investigating a regular enquiry pertaining to
allegations of corruption, misappropriation of funds and procedural
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Nara Chandrababu Naidu v. The State of Andhra Pradesh & Anr.
lapses in relation to collaboration of APSSDC/AP Government with
Design Tech. It appears that there was a previous communication
in this regard dated 09.02.2021. Even though reference is made to
the letter of 05.06.2018 in this communication, there are no specific
particulars of such enquiry or the date on which such enquiry was
started. There are subsequent letters dated 22.02.2021, 30.03.2021,
23.06.2021 and 18.08.2021, all referring to the letter of 05.06.2018.
But as it has been already observed earlier, there are no specific
particulars regarding when and in what form the enquiry has started.
There obviously was a time gap between the date of issue of the
letter of 05.06.20218 and actual date on which the enquiry was
commenced. The State has justified this delay in its counter affidavit.
It has been stated that instead of acting on the letter of the taxing
authorities dated 14.05.2018, which in turn has been referred to in the
communication of 05.06.2018, the note file pertaining to the project
was removed by the appellant from the secretariate in collaboration
with other accused persons and this was done to temper with evidence
and to ensure that the offences were not brought to light. This act
of removal of file may constitute a or an independent offence. But if
otherwise no enquiry was started because of such alleged wrong,
this time gap cannot be treated to have caused the date of issue
of the letter of 05.06.2018 to be starting point of an enquiry, in the
nature contemplated in Section 17A of the 1988 Act.
12. Section 17A thereof postulates prior approval from the appointing
authority in relation to any enquiry, inquiry, or investigation under
the 1988 Act. While the expression "inquiry" has been defined in
the 1973 code, there is no specific definition of the word "enquiry".
The Concise Oxford English Law Dictionary, Revised Tenth Edition,
defines the said expression as "an act of asking for an information".
It entails commencement of an active search to ascertain the truth
or falsity of an alleged wrongful act.
13. In ordinary perception, "enquiry" by a police officer would imply
positive exercise for searching certain details or particulars pertaining
to allegations of commission of an offence by an accused persons or
a set of accused persons. "Inquiry" is defined in Section 2 (g) of the
1973 and implies inquiry conducted under the Code by a Magistrate
or Court. Similarly, "investigation" in terms of Section 2 (h) of the
same Code includes all the proceedings conducted thereunder for
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collection of evidence by a police officer or a person authorised by
a Magistrate in that behalf. The nature of actions undertaken by the
State after 05.06.1988 constitutes neither inquiry nor investigation,
as no step under the 1973 Code was taken by the State prior to
the year 2021. If that is the meaning attributed to this expression,
the letter of 05.06.2018 or the earlier letter from taxing authority
dated 14.05.2018 cannot be construed to be the commencing point
of any enquiry. These were requests for starting an enquiry, which
obviously did not commence prior to the aforesaid dates in the year
2021. Thus, on this point I cannot accept the finding of the High
Court that a regular enquiry was already initiated on 05.06.2018.
The restriction in Section 17A of the 1988 Act is on conducting an
enquiry by a police officer without the prior approval of the authority
specified therein. A request to conduct an enquiry by itself cannot be
the starting point of the enquiry under the said provision to bypass
the restriction postulated therein. Moreover, in the facts of this case,
actual search for information had commenced in the year 2021, as
I have already indicated, and lack of action on this count has been
attributed by the State to the appellant and the other accused persons
themselves. We are not going into the truth of such allegations. But
if such allegations are assumed to be correct, the same shall only
support the appellant's case that no enquiry was initiated before
incorporation of Section 17A in the statute book. Further, in the F.I.R.
or the preliminary enquiry report dated 09.12.2021, there was no
reference to the communication of 05.06.2018. I, accordingly, hold
that before Section 17A of the 1988 Act had become operational,
no enquiry, inquiry or investigation had commenced as against the
appellant in relation to the subject crime.
14. Mr. Salve has also relied on a Standard Operating Procedure
(hereinafter referred to as "SOP") for processing cases under
Section 17A of the 1988 Act. This has been issued under Memo
no.428/07/2021-AVD.IV(B) dated 03.09.2021 by the Department of
Personnel and Training of the Government of India. This memo in
detail records how the aforesaid provisions shall apply. Clause 4.2
thereof stipulates: -
"Enquiry for the purposes of these SOPs, means any action
taken, for verifying as to whether the information pertains
to commission of offence under the Act."
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Nara Chandrababu Naidu v. The State of Andhra Pradesh & Anr.
15. As there is no authoritative guideline defining what constitutes
an enquiry, I find it safe to rely on the explanation given in the
aforesaid clause of the SOP. This explanation also contemplates
any action taken for verifying as to whether the information pertains
to commission of offences under the Act or not. Again, the memo
of 05.06.2018, if tested standalone, cannot be construed to imply
taking any action.
16. The High Court citing the judgments of this Court in the cases of
Shambhoo Nath Misra -vs- State of U.P. & Others [(1997) 5 SCC
326] and State of Uttar Pradesh -vs- Paras Nath Singh [(2009)
6 SCC 372], has held that the protection of sanction sought by the
accused persons therein cannot be applied because when a public
servant is alleged to have committed the offence of fabrication of
records or misappropriation of public funds, it cannot be said that
he acted in discharge of his official duty. Obviously, it cannot be
said that such misdemeanour on the part of a public servant can be
equated to his official duties. But these judgments were delivered
while interpreting the provisions of Section 197 of 1973 Code. The
requirement of previous sanction contemplated in Section 197 of the
1973 Code comes at the stage of taking cognizance of an offence.
Thus, a judicial authority, in such a context has the advantage of
coming to some form of opinion as to whether the offending acts
can be said to have been committed in discharge of his official duty
or not. In the case of Dr. S.M. Mansoori(Dead) Through Legal
Representatives -vs- Surekha Parmar and Others [(2023) 6 SCC
156], the complaint related to offences punishable under Sections
498-A and 506 read with Section 34 of IPC as well as Sections 3
and 4 of the Dowry Prohibition Act, 1961. The police personnel had
entered the house of the appellant therein without any previous
sanction and the charges framed against the accused were quashed
by the High Court on the ground that prior sanction under Section
197 of 1973 Code was not taken. In that context, it was held by a
Coordinate Bench of this Court that looking at the nature of allegations
in the complaint, at that stage it was impossible to conclude that the
acts alleged to have been done by the accused were committed by
her while in discharge of official duty. The High Court judgment was
set aside and it was opined by the Coordinate Bench in the facts of
that case, that a final view on that issue would be taken only after
the evidence was recorded.
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17. So far as the provision of Section 197 of the 1973 Code is concerned,
the requirement for deciding the question on obtaining sanction is at
the stage of taking cognizance. Thus, some element of application
of mind is necessary while examining that issue. In the case of
Matajog Dobey -vs- H. C. Bhari (AIR 1956 SC 44), there was use
of force when a tax raiding party was resisted from conducting a
search. This gave rise to two complaints, which were sent to two
magistrates for judicial enquiry. Summonses were issued against
the income tax officials and the accompanying policemen over use
of force. Matajog Dobey (supra), the resistor, contended that use
of such force was not in discharge of official duty. Objection was
raised against the issuance of summons on the ground of lack of
sanction as contemplated in Section 197 of the Criminal Procedure
Code, which was prevalent at that point of time (1950). Negating
such a contention, a Constitution Bench of this Court observed:-
"20. Is the need for sanction to be considered as soon
as the complaint is lodged and on the allegations therein
contained? At first sight, it seems as though there is some
support for this view in Hori Ram case and also in Sarjoo
Prasad v. King-Emperor. Sulaiman, J. says that as the
prohibition is against the institution itself, its applicability
must be judged in the first instance at the earliest stage of
institution. Varadachariar, J. also states that the question
must be determined with reference to the nature of the
allegations made against the public servant in the criminal
proceeding. But a careful perusal of the later parts of their
judgments shows that they did not intend to lay down
any such proposition. Sulaiman, J. refers (at P-179) to
the prosecution case as disclosed by the complaint or
the police report and he winds up the discussion in these
words:"Of course, if the case as put forward fails or the
defence establishes that the act purported to be done is in
execution of duty, the proceedings will have to be dropped
and the complaint dismissed on that ground". The other
learned Judge also states at p. 185, "At this stage we have
only to see whether the case alleged against the appellant
or sought to be proved against him relates to acts done or
purporting to be done by him in the execution of his duty".
It must be so. The question may arise at any stage of the
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Nara Chandrababu Naidu v. The State of Andhra Pradesh & Anr.
proceedings. The complaint may not disclose that the act
constituting the offence was done or purported to be done
in the discharge of official duty; but facts subsequently
coming to light on a police or judicial inquiry or even in
the course of the prosecution evidence at the trial, may
establish the necessity for sanction. Whether sanction is
necessary or not may have to be determined from stage
to stage. The necessity may reveal itself in the course of
the progress of the case.
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23. Where a power is conferred or a duty imposed by
statute or otherwise, and there is nothing said expressly
inhibiting the exercise of the power or the performance of
the duty by any limitations or restrictions, it is reasonable to
hold that it carries with it the power of doing all such acts
or employing such means as are reasonably necessary
for such execution. If in the exercise of the power or the
performance of the official duty, improper or unlawful
obstruction or resistance is encountered, there must
be the right to use reasonable means to remove the
obstruction or overcome the resistance. This accords with
commonsense and does not seem contrary to any principle
of law. The true position is neatly stated thus in Broom's
Legal Maxims, 10th Edn. at p. 312:" It is a rule that when
the law commands a thing to be done, it authorises the
performance of whatever may be necessary for executing
its command."
The scope of operation of Section 17A of the 1988 Act is, however,
different from that of Section 197 of the Code. The requirement of
taking sanction under Section 19 of the 1988 Act also is at the same
stage. Unlike Section 197 of 1973 Code (which is near identically
phrased as the same section in the earlier version of the Code),
Section 17A of the 1988 Act imposes restriction on police officer at
the enquiry stage itself, from proceeding against a public servant
in relation to any offence alleged to have been committed by him,
relatable to any recommendation made or decision taken by
such public servant (emphasis added), without previous approval
of the authorities stipulated in the said Section. We do not think the
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cases arising out of Section 197 of the 1973 Code would give proper
guidance for interpreting the provision of Section 17A of the 1988 Act
because, in the cases under Section 197, the decision on requirement
for sanction is to be taken at the stage of taking cognizance. Thus,
there is in-built scope of application of judicial mind to assess, at
least prima-facie, if an alleged act falls within discharge of official
duty or not. Under the provisions of Section 17A of the 1988 Act,
there is no scope of judicial application of mind in determining if the
flaw in making recommendation or taking decision is interwoven with
discharge of official duty or function or not. Moreover, the qualified
embargo therein is on a police officer. On the point as to assessing
whether the offending act is in discharge of official duty or not, having
regard to the nature of duties of a police officer, he is less equipped
to assess that factor, which involves some form of judicial application
of mind. No material has been placed before us to demonstrate that
the concerned police officer had undertaken any exercise for prima
facie forming his opinion as to whether the offence alleged against
the appellant was relatable to any recommendation made or decision
taken by the appellant in discharge of his official duty. Unlike in the
case of Dr. S.M. Mansoori (supra), in which the offences involved,
by their very nature, were prima facie not relatable to discharge of
official duty by the accused, here the appellant's actions relate to
making recommendations or taking decisions and these decisions
and recommendations otherwise, prima face, relate to discharge of
official functions.