Is Sanction u/s 17A PC Act Needed When Magistrate Has Ordered Investigation u/s 156(3) CrPC? Supreme Court Reserves Judgment

While reserving judgment in one of the cases against former Karnataka Chief Minister BS Yediyurappa under the Prevention of Corruption Act, 1988 (PC Act), the Supreme Court identified certain questions of law, including whether after a Magistrate has ordered an investigation under Section 156(3) of the Code of Criminal Procedure, would a prior sanction of the Government be still required under Section 17A of the PC Act.  

In the last few hearings, a bench of Justices JB Pardiwala and Manoj Misra has contemplated the submissions made by the petitioners, including by Senior Advocate Siddharth Luthra, that a prior sanction would still be required under Section 17A to proceed with the order of investigation. 

Justice Pardiwala had orally remarked that once a competent Court has passed an order under Section 156(3) CrPC for investigation, Section 17A would not come into the picture. 

On April 4, while reserving judgment in the first case, the Court wondered if the consideration that weigh with the Magistrate while passing an order under Section 156(3) is fundamentally different from that which weigh with the Competent Authority under Section 17A.

The Court framed the following questions for consideration ; 

1. What are the relevant considerations as contemplated by Section 17A of the PC Act, which the appropriate authority or government is expected to look into before the grant of approval for initiation of any enquiry, inquiry, or investigation by the police?

2. Whether the considerations which weigh with the appropriate authority or government while granting approval under Section 17A of the PC Act are fundamentally so different from the one that a Magistrate is ordinarily expected to apply while passing an order under Section 156(3) of the the Cr.P.C so as to preclude the Magistrate from fulfilling the object underlying Section 17A of the PC Act?

3. Could it be said that a police officer, despite a direction under Section 156(3) by a Magistrate, would remain inhibited from conducting any enquiry, inquiry, or investigation without prior approval as required by Section 17A? If yes, how does the standard of application of mind by the appropriate authority differ from that of the Magistrate?

Further, the Court has also identified certain issues on Section 19 of the PC Act. Section 19 PC Act issue is whether, after the 2018 amendment, a prior sanction is required when Yeddiyurappa was no longer a public servant. 

In this case, a private complaint was filed against him, when he was still holding office but it was quashed for the lack of sanction. After that, a second complaint was filed when he was not the CM but it was dismissed by the Trial Court in 2016. However, the Karnataka High Court restored it in 2021 and therefore, the issue arose whether Sections 17A and 19 of PC Act has any retrospective application or would the position of law change after 2018 amendment.

The Court has identified the issues for consideration in Section 19:

1. Whether the three conditions envisaged under the First Proviso of Section 19, namely that a complaint has been filed as per Part (i) and that the court has not only not dismissed such complaint but also explicitly directed the obtainment of sanction as per Part (ii), necessarily implies that it is open for the Magistrate to proceed in terms of Chapter XV more particularly under Section(s) 200, 202 and 203 of CrPC even without the grant of sanction under Section 19 of the PC Act?

If so, whether such an interpretation is limited only for the purpose of “cognizance” under Section 19 of the PC Act?

2. Whether, Part (ii) of the First Proviso to Section 19 of the PC Act, more particularly the expression “the court has not dismissed the complaint under section 203” necessarily envisages that the Magistrate ought to have first considered the statements of the complainant and the witnesses(s) and / or of any magisterial inquiry in terms of Section(s) 200 and 202 of the Cr.P.C.?

Or could it be said that Magistrate takes cognizance only after deciding not to dismiss the complaint under Section 203 especially in light of the decision in Legal Remembrancer v. Abani Kumar Banerji (1950)

3. Whether it could be said that the First Proviso to Section 19 of the PC Act is detached from the substantive part contained in sub-section (1) of the said provision?

4. Whether the requirements introduced by Section 17A and the amended Section 19 of the PC Act could be said to be retrospectively applicable? 

The Court has asked parties to file their written submissions addressing these issues within 2 weeks. 

Case Details: B.S YEDDIYURAPPA v.vA ALAM PASHA & ORS.|Special Leave to Appeal (Crl.) No.520/2021

Click Here To Read Order