Holding

Section 17A of the Prevention of Corruption Act, 1988 is a substantive provision applicable only to offences introduced or amended by the 2018 amendment and its requirement of prior approval does not render the investigation or the Special Judge's remand order illegal.

Summary

The former Chief Minister of Andhra Pradesh, N. Chandrababu Naidu, was added as accused No.37 in FIR No.29/2021 alleging massive misappropriation of funds related to skill development projects, invoking offences under the Prevention of Corruption Act, 1988 and the IPC. He sought quashing of the FIR and the remand order, arguing that the investigation violated Section 17A of the PC Act, which requires prior approval before probing a public servant for acts done in discharge of official duties. The Supreme Court examined whether Section 17A applies prospectively, its scope concerning offences repealed by the 2018 amendment, and whether the lack of prior approval vitiates the investigation and the Special Judge's remand order. The Court held that Section 17A is substantive, applies only to offences created or amended by the 2018 amendment, and its requirement of prior approval does not invalidate the investigation or the remand order. Consequently, the appellant cannot be proceeded against under the PC Act without such approval, but the Special Court retains jurisdiction to try him for IPC offences. The appeal was dismissed, and the matter was referred to the Chief Justice of India for constitution of a larger bench.

Issues considered

The applicability and prospective operation of Section 17A of the Prevention of Corruption Act, 1988 to offences alleged to have been committed before its commencement.
Whether the deletion of Sections 13(1)(c) and (d) by the 2018 amendment bars the use of Section 17A for those offences.
The effect of the absence of prior approval under Section 17A on the legality of the FIR, investigation, and remand order.
The jurisdiction of the Special Judge to pass a remand order and try IPC offences in the same trial.
The retrospective effect of the 2018 amendment on pending investigations.

Legislation cited

Code of Criminal Procedure, 1973s. 167, s. 223, s. 482
General Clauses Acts. 6
Indian Penal Code, 1860s. 109, s. 120-B, s. 166, s. 167, s. 209, s. 34, s. 37, s. 409, s. 418, s. 420, s. 465, s. 468, s. 471
Prevention of Corruption Act, 1988s. 12, s. 13(1)(c), s. 13(1)(d), s. 13(2), s. 17A
Prevention of Corruption (Amendment) Act, 26 of 2018

Subjects

Prevention of Corruption ActSection 17ARetrospective applicationPrior approval requirementSpecial Court jurisdictionQuashing FIRRemand orderStatutory interpretationCorruptionPublic servantIPC offences

Judgment

[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 sub-
section (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

* Author
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
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 [2024] 1 S.C.R.

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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 Enquiry-
ordered-Reg.
Ref: 1) Letter of Sri <OMITTED> Pune, dt. 14-5-2018.
560 [2024] 1 S.C.R.

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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
[2024] 1 S.C.R. 561

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
[2024] 1 S.C.R. 565

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.
xxx xxx xxx
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. In the case of State of Telangana -vs- Managipet
alias Mangipet Sarveshwar Reddy [(2019) 19 SCC 87] the accused
questioned the authorisation of the investigating officer in terms of
Section 17 of the 1988 Act. This Court held :-
“36. The High Court has rightly held that no ground is
made out for quashing of the proceedings for the reason
that the investigating agency intentionally waited till the
retirement of the accused officer. The question as to
whether a sanction is necessary to prosecute the accused
officer, a retired public servant, is a question which can
be examined during the course of the trial as held by this
Court in K. Kalimuthu [K. Kalimuthu v. State, (2005) 4 SCC
512 : 2005 SCC (Cri) 1291] . In fact, in a recent judgment
in Vinod Kumar Garg v. State (NCT of Delhi) [Vinod Kumar
Garg v. State (NCT of Delhi), (2020) 2 SCC 88 : (2020)
[2024] 1 S.C.R. 567

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

1 SCC (Cri) 545 : (2020) 1 SCC (L&S) 146] , this Court
has held that if an investigation was not conducted by
a police officer of the requisite rank and status required
under Section 17 of the Act, such lapse would be an
irregularity, however unless such irregularity results in
causing prejudice, conviction will not be vitiated or be bad
in law. Therefore, the lack of sanction was rightly found
not to be a ground for quashing of the proceedings.”
18. I shall test later in this judgment as to whether the remand proceeding
before the Special Judge was mere irregularity or fatal, but before
that I have to answer the question as to whether the protection of
Section 17A is applicable in the case of the appellant.
19. Large part of Mr. Salve’s arguments was devoted to the proposition
that the content of Section 17A of the 1988 Act was procedural in
nature and relying on the judgments of this court in the cases of (i)
Anant Gopal Sheorey -vs- State of Bombay [AIR 1958 SC 915];
(ii) Rattan Lal -vs- State of Punjab [AIR 1965 SC 444]; and (iii)
CBI -vs- R.R. Kishore [2023 INSC 817], he has argued that the
said provision is retroactive and not retrospective. His submission is
that the amended provision applies at the starting point of enquiry,
inquiry, or investigation, even though the offence may relate back to
a period when the requirement of obtaining previous sanction was
not necessary for starting these processes. I have already referred to
Section 19 of the 1988 Act which requires the Court to satisfy itself
whether such sanction stated therein has been taken at the stage
of taking cognizance. So far as acts of a public servant in making
recommendation or taking decision in discharge of official duties are
concerned, an entry point check, prior in time has been contemplated
for the investigating agencies. Thus, the requirement of taking prior
approval would arise at that stage, being the beginning or commencing
of enquiry, inquiry, or investigation. In my view a plain reading of the
said Section leads to such an interpretation. Section 17A does not
distinguish between alleged commission of offence prior to 26.07.2018
or post thereof. This provision stipulates the time when any enquiry,
inquiry or investigation is commenced by a police officer. Mr. Rohtagi
drew my attention to the judgment of this Court in the case of State
of Rajasthan -vs- Tejmal Choudhary [2021 SCC Online SC 3477]
to refute Mr. Salve’s submissions on this point. In this judgment, a
Coordinate Bench has held that the Section 17A of the 1988 Act is
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substantive in nature and is therefore applicable prospectively. The
same view has been taken by different High Courts but as I have an
authority of this Court on this point, I do not consider it necessary
to refer to all these High Court Judgements.
20. In the case of Tejmal Choudhary (supra) the FIR was registered on
01-01-2018 and the accused public servant sought quashing of the
FIR on the ground of introduction of Section 17A in the 1988 Act.
In para 10 of this judgment, the Coordinate Bench observed that:-
“10. In State of Telangana v. Managipet alias Mangipet
Sarveshwar Reddy reported (2019) 19 SCC 87, this Court
rejected the arguments that amended provisions of the PC
Act would be applicable to an FIR, registered before the
said amendment came into force and found that the High
Court had rightly held that no grounds had made out for
quashing the proceedings.”
In the present case, original FIR was registered on 09.12.2021
and the appellant was implicated in the aforesaid offences on
08.09.2023. There is no evidence of any substantive enquiry, inquiry,
or investigation made against him prior to coming into operation
of the Section 17A of the 1988 Act. Hence, the case at hand is
distinguishable from the ratio laid down in the judgment of this Court
of in the case of Tejmal Choudhary (supra).
21. The Amendment Act by which Section 17A of the 1988 Act was brought
into the said statute also deleted the provisions of sub-clauses (c)
and (d) of Section 13 (1) thereof. At the time the memorandum of
adding the appellant as accused was issued, the said Amendment
Act had become operational, but at the time of alleged commission
of offence, aforesaid two sub-clauses were part of the statute book.
Thus, per se, the appellant could be held liable for commission of
offences stipulated in the said provisions, though their subsequent
deletion might have some impact on the ultimate outcome of the
case. We are not concerned with that aspect of the controversy
at this stage. It has been asserted by Mr. Rohtagi, however, that
since at the time of commission of offence, the protective shield
of Section 17A was not in force, the appellant could not claim the
benefits thereof. I, however, do not accept this argument. It has been
already observed by me that the point of time Section 17A of 1988
Act would become applicable is the starting point of enquiry, inquiry,
[2024] 1 S.C.R. 569

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

or investigation and not the time of commission of the alleged offence.
In the event any of the three acts on the part of the prosecution is
triggered off post 26.07.2018, the mandate of Section 17A would be
applicable. The wording of Section 17A restricts the power of a police
officer to conduct any of the three acts into any offence by a public
servant “under this act”. Thus, if the process of enquiry commences
at a time attracting specific provisions of the 1988 Act which stand
deleted by the Amendment Act of 2018, the restrictive protection in
form of Section 17A ought to be granted. The phrase “under this
act”, on such construction ought to include offences which were in
the statue book at the time the subject-offences are alleged to have
been committed. Mr. Rohatgi, however, wants me to construe this
expression, i.e. “under this Act” to mean the 1988 Act, as it existed
on and from the date the provisions of Section 17A was introduced.
As the said section did not exist at the time of alleged commission
of the offences, his submission is that the said provision could not
apply in the case of the appellant. The said section, however, as I
have already narrated, had become operational when the enquiry
started. Thus, proceeding on the basis that the said provision is
prospective in its operation, the material point of time for determining
its prospectivity would be the starting point of enquiry or inquiry and
investigation.
22. The question as to whether the phrase “under this Act” used in
Section 17A of the 1988 Act, would mean to be “the Act”, as it
existed at the time of alleged commission of offence or “the Act” as
it stood post amendment when the enquiry commenced would also
have to be answered by this Court. While dealing with the issue of
necessity for obtaining prior approval, I have already held that the
appellant could be implicated under Section 13 (1)(c) and (d), as
at the time of alleged commission of the offences, these provisions
were alive. Once certain offences are deleted from an enactment,
they do not vanish totally unless the lawmakers say so. They move
to the back pages and can be revived if they were committed before
being enacted out of the legislation. But I cannot give a restrictive
interpretation to the expression “under this Act” to give an isolated
retrospective operation to the said phrase, detaching it from rest of
the provisions of Section 17A of the Act and remove the protective
shield in a situation where an enquiry has started after introduction
of the said provision but relates to an offence committed prior to
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its introduction in 2018. The said phrase ought to be relatable to
the date of starting of the enquiry, inquiry or investigation and not
to the time or date of commission of offence.
23. Otherwise, if I apply an interpretation of the expression “under this
Act” to mean the statute as it exists at the time the enactment is
invoked, the same phrase is invoked, the same might result in
divesting the Special Judge of his power to proceed against the
appellant, as at the time the appellant’s case was brought to the
Special Judge, the aforesaid two sub-sections stood deleted from
Section 13 (1) of the 1988 Act.
I am making this observation because the Special Judge’s jurisdiction
is derived from Sections 3 and 4 of the 1988 Act. These provisions
read:-
“3. Power to appoint special Judges.—(1) The Central
Government or the State Government may, by notification
in the Official Gazette, appoint as many special Judges as
may be necessary for such area or areas or for such case
or group of cases as may be specified in the notification
to try the following offences, namely:—
(a) any offence punishable under this Act; and
(b) any conspiracy to commit or any attempt to commit
or any abetment of any of the offences specified in
clause (a).
(2) A person shall not be qualified for appointment as a
special Judge under this Act unless he is or has been a
Sessions Judge or an Additional Sessions Judge or an
Assistant Sessions Judge under the Code of Criminal
Procedure, 1973 (2 of 1974).
4. Cases triable by special Judges.—(1) Notwithstanding
anything contained in the Code of Criminal Procedure,
1973 (2 of 1974), or in any other law for the time being in
force, the offences specified in sub-section (1) of section
3 shall be tried by special Judges only.
(2) Every offence specified in sub-section (1) of section
3 shall be tried by the special Judge for the area within
which it was committed, or, as the case may be, by the
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special Judge appointed for the case, or where there are
more special Judges than one for such area, by such one
of them as may be specified in this behalf by the Central
Government.
(3) When trying any case, a special Judge may also try
any offence, other than an offence specified in section 3,
with which the accused may, under the Code of Criminal
Procedure, 1973 (2 of 1974), be charged at the same trial.
(4) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), the trial of an offence
shall be held, as far as practicable, on day-to-day basis
and an endeavour shall be made to ensure that the said
trial is concluded within a period of two years:
Provided that where the trial is not concluded within the
said period, the special Judge shall record the reasons
for not having done so:
Provided further that the said period may be extended by
such further period, for reasons to be recorded in writing
but not exceeding six months at a time; so, however, that
the said period together with such extended period shall
not exceed ordinarily four years in aggregate.”
24. Now if I accept the meaning Mr. Rohtagi wants us to give to the
said expression as employed in Section 17A of the 1988 Act, the
same expression i.e. “under this Act” as contained in Section 3 (1)
(a) would also have to be read to mean as “the Act” prevailing at the
point of time the appellant’s case is brought to the Special Judge.
This would result in shrinking the jurisdiction of the Special Judge
to try offences which have been repealed by the Amendment Act
of 2018. I am unable to agree with Mr. Rohatgi on this point. It is
an established principle of statutory interpretation that if a particular
phrase is employed in different parts of an enactment, Courts ought to
proceed with an understanding that the legislature intended to assign
the same meaning to that expression used in different provisions
thereof, unless of course, a contrary intention appears from the
statute itself. Here I find no such contrary intention.
25. Now I shall examine the legality of a proceeding which is started
without complying with the requirement of previous approval under
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Section 17A of the 1988 Act. In the case of Yashwant Sinha and
Others -vs- Central Bureau of Investigation through its Director
and Another [(2020) 2 SCC 338], a Bench of this Court comprising
of three Hon’ble Judges, while dealing with power of review had also
examined this question. The Bench was unanimous in rejecting the
review plea. In a concurring judgment one of the Hon’ble Judges,
(K. M. Joseh, J.) held:-
“116. In the year 2018, the Prevention of Corruption (Amendment)
Act, 2018 (hereinafter referred to as “the 2018 Act”, for short)
was brought into force on 26-7-2018. Thereunder, Section 17-A,
a new section was inserted, which reads as follows:
“17-A. Enquiry or inquiry or investigation of offences
relatable to recommendations made or decision taken
by public servant in discharge of official functions or
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 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:
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Nara Chandrababu Naidu v. The State of Andhra Pradesh & Anr.

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.”
(emphasis supplied)
117. In terms of Section 17-A, no police officer is permitted to
conduct any enquiry or inquiry or conduct investigation into any
offence done by a public servant where the offence alleged is
relatable to any recommendation made or decision taken by
the public servant in discharge of his public functions without
previous approval, inter alia, of the authority competent to
remove the public servant from his office at the time when the
offence was alleged to have been committed. In respect of the
public servant, who is involved in this case, it is clause (c), which
is applicable. Unless, therefore, there is previous approval,
there could be neither inquiry or enquiry or investigation. It is
in this context apposite to notice that the complaint, which has
been filed by the petitioners in Writ Petition (Criminal) No. 298
of 2018, moved before the first respondent CBI, is done after
Section 17-A was inserted. The complaint is dated 4-10-2018.
Para 5 sets out the relief which is sought in the complaint which
is to register an FIR under various provisions. Paras 6 and 7
of the complaint are relevant in the context of Section 17-A,
which read as follows:
“6. We are also aware that recently, Section 17-A of the Act
has been brought in by way of an amendment to introduce
the requirement of prior permission of the Government for
investigation or inquiry under the Prevention of Corruption
Act.
7. We are also aware that this will place you in the
peculiar situation, of having to ask the accused himself, for
permission to investigate a case against him. We realise
that your hands are tied in this matter, but we request
you to at least take the first step, of seeking permission
of the Government under Section 17-A of the Prevention
of Corruption Act for investigating this offence and under
which, “the concerned authority shall convey its decision
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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”.”
(emphasis supplied)
118. Therefore, the petitioners have filed the complaint fully
knowing that Section 17-A constituted a bar to any inquiry or
enquiry or investigation unless there was previous approval. In
fact, a request is made to at least take the first step of seeking
permission under Section 17-A of the 2018 Act. Writ Petition
(Criminal) No. 298 of 2018 was filed on 24-10-2018 and the
complaint is based on non-registration of the FIR. There is no
challenge to Section 17-A. Under the law, as it stood, both on
the date of filing the petition and even as of today, Section
17-A continues to be on the statute book and it constitutes a
bar to any inquiry or enquiry or investigation. The petitioners
themselves, in the complaint, request to seek approval in terms
of Section 17-A but when it comes to the relief sought in the
writ petition, there was no relief claimed in this behalf.”
The same view has been reflected in the case of Tejmal Choudhary
(supra).
26. One point which has been urged in relation to this authority is that
this was not a contention raised by the parties in the judgment of
Yashwant Sinha (supra) and was not dealt with by the majority
opinion. Hence, according to the respondents a concurring opinion
could not be a binding authority on a point which has not been
dealt with by the majority of the Hon’ble Judges in the Bench. Mr.
Rohatgi relied on a decision in the case of Rameshbhai Dabhai
Naika -vs- State of Gurajat and Others [(2012) 3 SCC 400] on
this point. The ratio of this decision would not apply in the context of
the judgment delivered in the case of Yashwant Sinha (supra), as
in the latter authority the majority view does not reflect any discord
over the concurring view. In my opinion, however, position of law
laid down in a concurring judgment ought to be treated as part of
the main judgment and that opinion would form a binding authority. I
should not distinguish between the main judgment and the concurring
view and isolate the reasoning contained in the concurring opinion
and hold the reasoning contained in the main opinion (of majority
of the judges) only to have the status of a binding precedent. The
[2024] 1 S.C.R. 575

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concurring view is just as much part of the main opinion (of majority
of the judges) and will be a binding precedent, composite with the
majority view. The position of law would be different if the majority
view had expressed, either directly or by implication, a contrary view.
That is not the case so far as the judgment in the case of Yashwant
Sinha (supra) is concerned. Hence this principle of law contained in
the concurring judgment would constitute precedent even though it
was expressed in a concurring judgment of a learned Single Judge
which the majority members of the Bench have not differed. Thus,
the steps taken against the appellant under the 1988 Act ought to
be invalidated as the same did not commence with prior approval
as laid down under Section 17A of the 1988 Act.
27. The cases of Neeharika Infrastructure Pvt. Ltd. vs. State of
Maharashtra [AIR 2021 SC 315] and State -vs- M. Maridoss
[(2023) 4 SCC 338] were cited by the respondents to contend that
investigation ought not be scuttled at a nascent stage and it was
also highlighted that the petition for quashing of an FIR was made
within five days from the date the appellant was arraigned as an
accused. It is a fact that the appellant had approached the quashing
Court with extraordinary speed but that factor by itself would not
render his action untenable, ousting him from the judicial forum
to have the proceeding against him invalidated. In the cases of
R.P. Kapur -vs- State of Punjab [AIR 1960 SC 866] and State of
Haryana -vs- Bhajan Lal [(1992) Supp. (1) SCC 335], it has been
held that prosecution undertaken in violation of a legal bar would
be a valid ground for quashment of the proceeding. Further, in the
case of Mahmood Ali & others -vs- State of UP [2023 INSC 684]
a Coordinate Bench of this Court has observed :-
“13.…. The Court while exercising its jurisdiction under
Section 482 of the CrPC or Article 226 of the Constitution
need not restrict itself only to the stage of a case but is
empowered to take into account the overall circumstances
leading to the initiation/registration of the case as well as
the materials collected in the course of investigation.….”
28. Now I shall address the issue as to whether striking down the set of
offences under the 1988 Act from the FIR would render the remand
order passed by the Special Judge appointed in terms of Section
3 of the aforesaid statute illegal and non-est. For the purpose of
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testing this legal issue, which was raised on behalf of the appellant,
it would be necessary to refer to the provisions of Sections 3 and 4
of the 1988 Act which have been reproduced above.
29. The question of lack of prior approval under the 1988 Act was raised
before the Special Judge at the time of remand but this argument
was rejected on the ground that time for commission of the alleged
offences related to a period prior to 26.07.2018. I have in the earlier
part of this judgment discussed this question and held the point in
favour of the appellant.
30. There are allegations of commission of offences against the appellant
under different provisions of the 1860 Code. I have been taken through
the memorandum for adding the appellant as accused and also the
order of the remand Court. The IPC offences also relate to the same
or similar set of transactions, for which the aforesaid provisions of
the 1988 Act were applied. The substantive offences alleged against
the appellant are Section 12 and Sections 13(1) (c) and (d) read
with Section 13(2), which is the provisions prescribing punishment.
I am not satisfied, at this stage, that the 1988 Act offences are so
dominant in the set of allegations against the appellant that once I
consider the allegations against the appellant de hors the alleged
offences under 1988 Act, the allegations of commission of the IPC
offences would automatically collapse. At this stage, in my opinion,
the alleged commission of IPC offences are not mere ancillary to
the 1988 Act offences, as has been argued by Mr. Salve and Mr.
Luthra and if commission of offences by the appellant under the IPC
provisions is proved, could form the basis of conviction independent
of the offences under the 1988 Act. Thus, the ratio of the judgement
of this Court in the case of Ebha Arjun Jadeja and others -vs- State
of Gujarat [(2019) 9 SCC 789], to which I was a party, would not
aid the appellant. In this judgment, it was held:-
“18. In the case in hand, the only information recorded
which constitutes an offence is the recovery of the arms.
The police officials must have known that the area is a
notified area under the TADA Act and, therefore, carrying
such arms in a notified area is itself an offence under the
TADA Act. It is true that this may be an offence under
the Arms Act also but the basic material for constituting
an offence both under the Arms Act and the TADA Act is
[2024] 1 S.C.R. 577

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identical i.e. recovery of prohibited arms in a notified area
under the TADA Act. The evidence to convict the accused
for crimes under the Arms Act and the TADA Act is also
the same. There are no other offences of rape, murder,
etc. in this case. Therefore, as far as the present case
is concerned, non-compliance with Section 20-A(1) of
the TADA Act is fatal and we have no other option but to
discharge the appellants insofar as the offence under the
TADA Act is concerned. We make it clear that they can be
proceeded against under the provisions of the Arms Act.”
As would be evident from quoted portion of the judgment in the case
of Ebha Arjun Jadeja (supra), the Coordinate Bench had permitted
proceeding against the appellant therein under the provisions of the
Arms Act though basic material for constituting the offences was
both under the Arms Act and the TADA.
31. In the case of State through Central Bureau of Investigation,
New Delhi -vs- Jitender Kumar Singh [(2014) 11 SCC 724] certain
persons who were not public servants were being tried with a public
servant in relation to offences outside the purview of the 1988 Act.
The public servant however was implicated in offences under the
aforesaid statute. It has been held and observed in this judgment:-
“46. We may now examine Criminal Appeal No. 161 of
2011, where the FIR was registered on 2-7-1996 and the
charge-sheet was filed before the Special Judge on 14-9-
2001 for the offences under Sections 120-B, 420 IPC read
with Sections 13(2) and 13(1) of the PC Act. Accused 9
and 10 died even before the charge-sheet was sent to the
Special Judge. The charge against the sole public servant
under the PC Act could also not be framed since he died
on 18-2-2005. The Special Judge also could not frame any
charge against non-public servants. As already indicated,
under sub-section (3) of Section 4, the Special Judge could
try non-PC offences only when “trying any case” relating to
PC offences. In the instant case, no PC offence has been
committed by any of the non-public servants so as to fall
under Section 3(1) of the PC Act. Consequently, there was
no occasion for the Special Judge to try any case relating
to the offences under the PC Act against the appellant.
The trying of any case under the PC Act against a public
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servant or a non-public servant, as already indicated, is a
sine qua non for exercising powers under sub-section (3)
of Section 4 of the PC Act. In the instant case, since no
PC offence has been committed by any of the non-public
servants and no charges have been framed against the
public servant, while he was alive, the Special Judge had
no occasion to try any case against any of them under
the PC Act, since no charge has been framed prior to
the death of the public servant. The jurisdictional fact, as
already discussed above, does not exist so far as this
appeal is concerned, so as to exercise jurisdiction by the
Special Judge to deal with non-PC offences.
47. Consequently, we find no error in the view taken by
the Special Judge, CBI, Greater Mumbai in forwarding the
case papers of Special Case No. 88 of 2001 in the Court
of the Chief Metropolitan Magistrate for trying the case in
accordance with law. Consequently, the order passed by
the High Court is set aside. The competent court to which
Special Case No. 88 of 2001 is forwarded, is directed to
dispose of the same within a period of six months. Criminal
Appeal No. 161 of 2011 is allowed accordingly.”
Citing this authority along with the judgement of this court in the
cases of (i) Chiranjilal Goenka -vs- Jasjit Singh & Others [(1993)
2 SCC 507], (ii) State of Tamil Nadu -vs- Paramasiva Pandian
[(2002) 1 SCC 15], (iii) State of Punjab -vs- Davinder Pal Singh
Bhullar [(2011) 14 SCC 427] and (iv) Kaushik Chaterjee -vs- State
of Haryana [(2020) 10 SCC 92] it was argued that the defect of
jurisdiction strikes at the very power or authority of the Court and
hence the Special Judge could not have passed the remand order and
hence the entire proceeding against the appellant before the Special
Judge ought to fail. On the same point, certain other authorities were
also referred to but we do not consider it necessary to individually
cite those authorities and deal with them separately.
32. So far as the present case is concerned, the principle of law laid
down in the authorities referred to in the preceding paragraph would
not apply. In Section 4(3) of the 1988 Act it has been stipulated that
when trying any case, a Special Judge may also try any offence
other than an offence specified in Section 3, with which the accused
[2024] 1 S.C.R. 579

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may be charged with under the 1973 Code, at the same trial. In the
case of Jitender Kumar Singh (supra), the public servant against
whom allegations of commission of offences under the 1988 Act
were brought, had died before framing of charge and other accused
persons were not public servants. They were not charged with any
offence under the 1988 Act. It was in this context the aforesaid
judgment was delivered. It has been submitted before us on behalf
of the State that other co-accused persons have been implicated in
offences under the 1988 Act. A similar line of reasoning was followed
in the case of A. Sreenivasa Reddy -vs- Rakesh Sharma and
Another [2023 INSC 682]. I have earlier observed that the offences
against the appellant relate to the same or similar set of transactions
in relation to which the Special Judge is proceeding with the case
initiated by the F.I.R. dated 09.12.2021 against the other accused
persons. In this context, I shall refer to Section 223 of the 1973
Code, which stipulates :-
“223. What persons may be charged jointly.—The
following persons may be charged and tried together,
namely:—
(a) persons accused of the same offence committed in
the course of the same transaction;
(b) persons accused of an offence and persons accused
of abetment of, or attempt to commit, such offence;
(c) persons accused of more than one offence of
the same kind, within the meaning of section 219
committed by them jointly within the period of twelve
months;
(d) persons accused of different offences committed in
the course of the same transaction;
(e) persons accused of an offence which includes theft,
extortion, cheating, or criminal misappropriation, and
persons accused of receiving or retaining, or assisting
in the disposal or concealment of, property possession
of which is alleged to have been transferred by any
such offence committed by the first-named persons,
or of abetment of or attempting to commit any such
last named offence;
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(f) persons accused of offences under sections 411 and
414 of the Indian Penal Code (45 of 1860) or either
of those sections in respect of stolen property the
possession of which has been transferred by one
offence;
(g) persons accused of any offence under Chapter XII
of the Indian Penal Code (45 of 1860) relating to
counterfeit coin and persons accused of any other
offence under the said Chapter relating to the same
coin, or of abetment of or attempting to commit any
such offence; and the provisions contained in the
former part of this Chapter shall, so far as may be,
apply to all such charges:
Provided that where a number of persons are charged with
separate offences and such persons do not fall within any
of the categories specified in this section, the [Magistrate
or Court of Session] may, if such persons by an application
in writing, so desire, and [if he or it is satisfied] that such
persons would not be prejudicially affected thereby, and
it is expedient so to do, try all such persons together.”
33. Sub clause (a) of the aforesaid provision of the 1973 Code, so far
as charging and trying of an accused is concerned, could apply in
the present case, as the non-obstante clause with which Section 4 of
the 1988 Act is couched, would not oust the principles contained in
Section 223 of the 1973 Code. There is no incompatibility in applying
the aforesaid principle considering the content of sub-section 3 of
Section 4 of 1988 Act. In the case of Vivek Gupta -vs- Central
Bureau Investigation and Another [(2003) 8 SCC 628] decided
by a Coordinate Bench of this Court, it has been held:-
“14. The only narrow question which remains to be
answered is whether any other person who is also charged
of the same offence with which the co-accused is charged,
but which is not an offence specified in Section 3 of the Act,
can be tried with the co-accused at the same trial by the
Special Judge. We are of the view that since sub-section
[2024] 1 S.C.R. 581

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

(3) of Section 4 of the Act authorizes a Special Judge to
try any offence other than an offence specified in Section
3 of the Act to which the provisions of Section 220 apply,
there is no reason why the provisions of Section 223 of
the Code should not apply to such a case. Section 223
in clear terms provides that persons accused of the same
offence committed in the course of the same transaction,
or persons accused of different offences committed in
the course of the same transaction may be charged and
tried together. Applying the provisions of Sections 3 and
4 of the Act and Sections 220 and 223 of the Code of
Criminal Procedure, it must be held that the appellant
and his co-accused may be tried by the Special Judge in
the same trial.
15. This is because the co-accused of the appellant who
have been also charged of offences specified in Section
3 of the Act must be tried by the Special Judge, who in
view of the provisions of sub-section (3) of Section 4
and Section 220 of the Code may also try them of the
charge under Section 120-B read with Section 420 IPC.
All the three accused, including the appellant, have been
charged of the offence under Section 120-B read with
Section 420 IPC. If the Special Judge has jurisdiction to
try the co-accused for the offence under Section 120-B
read with Section 420 IPC, the provisions of Section 223
are attracted. Therefore, it follows that the appellant who
is also charged of having committed the same offence
in the course of the same transaction may also be tried
with them. Otherwise it appears rather incongruous that
some of the conspirators charged of having committed the
same offence may be tried by the Special Judge while the
remaining conspirators who are also charged of the same
offence will be tried by another court, because they are not
charged of any offence specified in Section 3 of the Act.”
34. A question has also been raised by the appellant as to whether the
Special Judge could have passed the remand order in the event
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the remand was asked for only in respect of alleged commission
of the IPC offences. We are apprised in course of hearing that the
appellant has been enlarged on bail. Hence, this question need not
be addressed by me in this judgment. I, accordingly, dispose of this
appeal with the following directions:-
(i) 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 Section 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 sub-section
(a) or (b) or (c) of Section 17A of the 1988 Act shall have to
be obtained. In absence of such previous approval, the action
initiated under the 1988 Act shall be held illegal.
(ii) The appellant cannot be proceeded against for offences under
the Prevention of Corruption Act, 1988 as no previous approval of
the appropriate authority has been obtained. This opinion of this
Court, however, shall not foreclose the option of the concerned
authority in seeking approval in terms of the aforesaid provision.
In this case, liberty is preserved for the State to apply for such
approval as contained in the said provision.
(iii) I decline to interfere with the remand order dated 10.09.2023
as I am of the view that 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 Section 17A would not have rendered the entire order of
remand non-est.
(iv) The appellant, however, could be proceeded against before
the Special Judge for allegations of commission of offences
under the Indian Penal Code, 1860 for which also he has been
implicated.
35. The appeal stands partly allowed, in the above terms.
36. All connected applications stand disposed of.
[2024] 1 S.C.R. 583

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

Bela M. Trivedi, J.
1. Leave granted.
2. The entire controversy in the instant Appeal centres around the
interpretation of Section 17A of the Prevention of Corruption Act,1988
(hereinafter referred to as the “PC Act”), and its applicability to the
facts of the present case. Having had the benefit of going through
the draft opinion of my esteemed Brother Justice Aniruddha Bose,
I deem it appropriate to pen down my views on the issues involved
in the Appeal.
FACTUAL MATRIX:
3. Bereft of unnecessary details, the bare minimum facts required to
decide the present Appeal are that the appellant, who is sought to be
added as the accused No. 37 vide the “Accused Adding Memo” dated
08.09.2023, in the FIR No. 29/2021 registered at the P.S. CID P.S.,
AP, Amarvathi, Mangalalagiri, on 09.12.2021, was the Chief Minister
of Andhra Pradesh between 2014-2019. The said FIR No.29/2021
was initially registered against 26 accused on the basis of the report
of the Chairman APSSDC dated 07.09.2021 and the preliminary
enquiry report dated 09.12.2021, for the offences under Sections
166, 167, 418, 420, 465, 468, 471, 409, 201, 109 read with 120-B
IPC and Section 13(2) read with Section 13(1)(c) and 13(1)(d) of the
PC Act, in connection with the alleged swindling of funds by the then
Special Secretary and other officers of the Government and by the
Directors, Project team members and other officers of M/s Siemens
and M/s DesignTech and their shell/defunct allies, by creating bogus
invoices and thereby siphoning of funds of the government.
4. As per the case of the respondent state, the office of Director General,
Anti-corruption Bureau, A.P, Vijayawada, vide the memorandum dated
05.06.2018 had directed the DSP, CIU, ACB, Vijayawada to conduct
a Regular Inquiry into the letter/complaint dated 14.05.2018 received
by it in respect of the allegations of corruption made against the
officials of the A.P. State Skill Development Corporation Vijayawada.
Based on the report of the complainant Sri Konduru Ajay Reddy,
Chairman, APSSDC; and the PE Report of Sri N. Surendra, Dy. S.P.
EOW-II, CID, A.P. Mangalagiri, the case being FIR No. 29/2021 was
registered on 09.12.2021.
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5. It was stated in the “Accused Adding Memo” dated 08.09.2023 filed
in CR No. 29/2021 against the appellant (A-37) inter alia that–
“As per the investigation so far done, prima facie
established that A36 committed the offence through a prior
conspiracy led by A-37 along with A-1 A-2 and others.
A-38 colluded with A-37, on 16.2.2015, as a minister in
the AP cabinet led by A-37, approved the cost estimation
of Siemens project received through A-1, without getting
any assessment, verification, proper DPR and evaluation.
The accused A-38 while holding office as public servant
as a Minister holding departments i.e SDEI & APSSDC,
conspired, colluded with A-37, A-2, A-6 to A-10 and with
criminal intention, released the Govt funds through the
accused without verifying the contribution of Technology
partners, allowed other accused to do fraudulent and
illegal acts, committed misappropriation of Government
funds to the tune of around Rs.279 Crores which were
entrusted to them or under their control by corrupt and
illegal methods. A-37 & A-38 through A-1, allowed other
accused 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 by the M/s DesignTech, by
conspiring, colluding and intentionally co-operating in the
commission offence with several acts of by the concerned
Directors of companies and private persons. A-38 as a
Minister holding a concerned department i.e SDE&I &
APSSDC did not review the project and caused the wrongful
loss to the Govt. and wrongful gain to himself and others.
Therefore, a prima-facie case was established for the
offences U/s 120(B), 418, 420, 465, 468, 471, 409, 201,
109 r/w 34 & 37 IPC & Section 12, 13(2) r/w 13(1) (c) and
(d) of Prevention of Corruption Act, 1988 against Sri Nara
Chandra Babu Naidu (A- 37), formerly Chief Minister of
Andhra Pradesh and against Sri K. Atchannaidu, the then
Minister for Labour & Employment, Factories, Youth &
Sports, Skill Development and Entrepreneurship, Govt. of
A.P were added as accused no. 37 and A-38 respectively
to this case.”
[2024] 1 S.C.R. 585

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

6. The appellant was arrested on 09.09.2023 and was produced
before the Special Court for SPE and ACB cases Vijayawada, A.P.
The Special Court on 10.09.2023, passed the order remanding the
appellant (accused no.37) to the judicial custody till 22.09.2023
under Section 167 Cr.PC by holding inter alia that the material on
record prima facie showed that accused no. 37 had in pursuance
of criminal conspiracy, while holding his office as a public servant,
colluded with the other accused and committed misappropriation
of government funds to the tune of Rs.279 crores by corrupt and
illegal methods, causing huge loss to the Government exchequer.
It was also observed that there was a prima facie material to show
the nexus of accused no.37 with the other accused no. 1, 2, 6
and 38 and the other representatives of shell companies, and also
sufficient material eliciting the role of A-37 in the approval of the
Skill Development Project and its activities, attracting the offences
under IPC and PC Act.
7. The appellant thereafter filed a petition being Criminal Petition no.
6942/2023 in the High Court under Section 482 of Cr.PC seeking
to quash the FIR being no.29/2021 qua him and the consequential
order of remand dated 10.09.2023 passed by the Special Court.
The said Criminal Petition came to be dismissed by the High Court
vide the impugned order dated 22.09.2023 which is under challenge
before this Court by way of the present Appeal.
SUBMISSIONS
8. During the course of lengthy arguments made by a battery of lawyers
led by learned Senior Advocate Mr. Harish N. Salve appearing for
the appellant, broadly following submissions were made:
(i) The absence of a prior approval as mandated by Section 17A
of the PC Act, vitiated the conduct of enquiry or inquiry or
investigation; the initiation and continuation of investigation in
FIR No. 29 of 2021 dated 09.12.2021, including the various
investigative steps of adding of the appellant as Accused No.
37 and arresting the appellant on 08.09.2023; and the remand
of the appellant into the custody pursuant to the orders passed
by the Special Court.
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(ii) Section 17A of the PC Act which was introduced with effect from
26.07.2018, interdicts “…. any enquiry or inquiry or investigation
into an offence alleged to have been committed by a public
servant ……”, without the previous approval of functionaries
specified in Clauses (a), (b) or (c), as the case may be, the
only exception being where a public servant is apprehended
“red handed”.
(iii) Section 17A constitutes a complete legal bar to the very
initiation of any enquiry, inquiry or investigation as was noted
by this Court in Yashwant Sinha & Ors. Vs. Central Bureau
of Investigation1.
(iv) Section 17A relates to the procedure by which an enquiry,
inquiry or investigation into an offence is to be conducted. It
is a procedural provision, which does not impair any right of
the investigating agencies. In this regard reliance is placed on
Anant Gopal Sheorey vs. State of Bombay2 and on Rattan
Lal Alias Ram Rattan Vs. State of Punjab3.
(v) No person has a “vested right in the remedies and the methods
of procedure in trials for crime.” A law that draws upon antecedent
facts in its prospective operation is not retrospective - it is
sometimes referred to as being retroactive.
(vi) Section 17A is retroactive in the sense that it would apply
in future in relation to all enquires, inquires or investigations
being conducted, even though such enquiries, inquires or
investigations may be in respect of offences which may have
allegedly been committed prior to coming into force of Section
17A.
(vii) Section 17A (c) uses the phrase “at the time when the offence
was alleged to have been committed”. Meaning thereby it
suggest that the provision is intended to apply to offences
committed in the past without any limitation.
(viii) The question whether a prosecution can be initiated after a
substantive offence is deleted is not being raised in the present
case - the appellant’s case will be that in such matters, if the law

1 (2020) 2 SCC 338
2 AIR 1958 SC 915
3 AIR 1965 SC 444
[2024] 1 S.C.R. 587

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

does not consider an act to be an offence anymore, initiating
a prosecution after the offence is deleted violates Article 21.
However, that will arise in the Trial and the issue is not being
raised at this stage.
(ix) The conclusion of the High Court that the provision cannot be
applied in the case of any offence committed prior to 26.07.2018
is erroneous, as in the instant case the alleged offences have
taken place till 2019, as for the case of the prosecution.
(x) The SOP issued in relation to Section 17A contemplates a
step-by-step approval requirement as per the notification issued
in this behalf.
(xi) The alleged offences in the present case relate to the
recommendations made/decisions taken by the appellant in
discharge of his official functions or duties. The focus of the
provision under Section 17A is the person who has committed
the offence and not merely the offence. The private acts of a
person, not in his or her capacity as a public servant are not
protected by this provision, however, if the offences are based on
the allegations in connection with recommendations or decisions
taken in discharge of his official functions or duties, section 17A
would apply. The allegations levelled against the appellant have
a clear nexus to his post of Chief Minister.
(xii) Section 17A uses the phrase “any offence”. Hence the
requirement of obtaining prior approval under Section 17A is
applicable to all offences, and not just offences under the PC
Act. In any event, even if the prior approval under Section 17A
applies only to allegations of offences under the PC Act, the
continuation of investigation under IPC offences cannot be
countenanced as the basic material for constituting both kinds
of offences is the same.
(xiii) It is trite law that if the initial action is not in consonance with
law, all subsequent and consequential proceedings would
fall. In the present case, once offences under the PC Act are
effaced from existence, the custody of the appellant pursuant
to the orders passed by the Special Court from time to time
was without any sanction of law, as the Special Court in that
case had no powers to remand persons accused of offences
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under the IPC alone. The jurisdictional fact for the exercise of
jurisdiction by the Special Court is the existence of an offence
under the PC Act, and once such jurisdictional fact ceases to
exist, the orders of Special Court are required to be treated as
without any sanction of law and non-est. In this regard, reliance
is placed on State of Punjab vs. Davinder Pal Singh Bhullar
& Others4.
(xiv) A legal bar to a prosecution is a valid ground for quashing the
proceedings as held by this Court in R.P. Kapur vs. State of
Punjab5 and State of Haryana Vs. Bhajan Lal6.
9. Learned Senior Advocate Mr. Mukul Rohtagi for the Respondent
– State of Andhra Pradesh made following submissions: -
(i) None of the facets contained in Section 17A would be applicable
to the facts of the present case in as much as Section 17A of
the PC Act came into force with effect from 26.07.2018, whereas
the Regular Enquiry was initiated in respect of the alleged scam
against the appellant and others by ACB vide the letter dated
05.06.2018, on the basis of the complaint received from within
the DGSTI on 14.05.2018. When the Enquiry began, Section 17A
was not in existence and therefore cannot be made applicable
to the present case.
(ii) On 11.07.2021, the State issued a memo at the request of the
M.D. of APSSDC entrusting a detailed investigation into the
very alleged scam. As long as the enquiry into the offence. i.e.
facts constituting the offence by the ACB and the CID enquiry
are one and the same i.e. about the siphoning of funds from
APSSDC during the period 2015-2018. Therefore, the date of
initiation of Enquiry into the said offence for the purpose of
deciding the applicability of Section 17A of the PC Act is the
date on which the Enquiry was first initiated into that particular
offence, i.e. 05.06.2018 in the instant case.

4 (2011) 14 SCC 770
5 AIR 1960 SC 866
6 1992 (Suppl.) SCC 335
[2024] 1 S.C.R. 589

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

(iii) The word “Enquiry” is neither defined in the Code of Criminal
Procedure nor in the PC Act. As per the Standard Operating
Procedure issued by the Government of India however describes
“enquiry” as – “enquiry for the purposes of the SOPs means any
action taken, for verifying as to whether the information pertains
to commission of an offence under the Act.” Hence, the date of
initiation of Enquiry is only offence specific and not investigation
agency specific or complaint/ complainant specific, and does
not change by the mere change of investigating agency.
(iv) The Enquiry, which was initiated by the ACB on 05.06.2018 i.e.
much prior to the incorporation of Section 17A into the PC Act,
was later entrusted to the AP CID. All the decisions that formed
part of the offences were taken much prior to the amendment of
the PC Act i.e. between 2015 and 2017. Therefore, no approval
as contemplated under Section 17A would be required.
(v) The offences allegedly committed by the appellant were not
in discharge of his official functions or duties. Even as per the
appellants case, he was neither the Minister In-Charge of the
concerned Project, nor had he had anything to do with the
concerned corporation (APSSDC).
(vi) In the instant case, the alleged offences have been registered
not only under the PC Act but also under various offences of
Indian Penal Code (IPC) like Sections 409, 166, 167, 418, 420,
465, 468, 471, 201 and 109 read with Section 120(B) of IPC.
Committing criminal breach of trust/misappropriation of funds
could never be construed to fall under the discharge of official
duties. In any case the question whether an act is within one’s
official capacity or not can only be decided in the course of trial.
(vii) As held in State of Rajasthan vs. Tejmal Choudhary, 7
Section 17A of PC Act is ‘a Substantive Provision’ and is
therefore applicable only prospectively. Section 17A envisages
a substantive right against non-prosecution of innocent acts
in course of official duty; and not an obstacle/ hurdle in the
investigation process of the prosecution, especially when the
sanction is denied. Section 17A creates new rights, disabilities

7 2021 SCC Online SC 3477
590 [2024] 1 S.C.R.

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and obligations and therefore it ought not to be applied
retrospectively as held in G.J. Raja vs. Tejraj Surana 8.
(viii) Under the 2018 amendment, other than introducing Section
17A, other sections like Section 13 (1)(c) and 13(1)(d) i.e. the
offences for which the appellant is charged, were specifically
repealed and the offences were redefined. Section 17A can
have no application to the offences as they existed prior to the
2018 amendment.
(ix) Even if Section 17A of the PC Act were to be applicable to the
present case, the IPC offences would survive and therefore also
the FIR qua the appellant cannot be quashed. The question of
competence of a particular court to try the offences would arise
only after the investigation is complete and a chargesheet is filed.
(x) When one of the co-accused has been charged under the
offences under both the PC Act and the IPC, while the other
co-accused have only been charged under the IPC, the Special
Court would have jurisdiction to try both the accused persons
in view of Sections 3, 4 and 5 of the PC Act. In the instant
case 38 persons including multiple public servants have been
arrayed as the accused in Crime No. 29 of 2021 before the
AP CID Police Station, and therefore the Special Court under
the PC Act has the jurisdiction to try all the accused involved
in the case.
(xi) In case of two possible constructions of a provision in the PC
Act, it is the duty of the Court to interpret it in the manner which
roots out corruption, as opposed to creating a road block in the
fight against corruption.
(xii) Section 17A of the PC Act is substantially similar to Section
197 of the Cr.P.C., and this Court has interpretively narrowed
down the circumstances in which sanction under Section 197
of Cr.P.C. needs to be obtained, by holding that official duties,
when discharged for collateral or other benefits, would fall
outside the scope of the term “official duties”.

8 (2019) 9 SCC 469
[2024] 1 S.C.R. 591

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

(xiii) The judgment in case of Yaswant Sinha vs. CBI (supra), relied
upon by the appellant was not a binding precedent, as the
portion thereof relied upon was a discordant note in Hon’ble
Justice Joseph’s judgment, which was in variance with the
main judgment.
(xiv) The appellant was added as an accused by filing the “Accused
Adding Memo” on 07.09.2023 and the petition for quashing the
FIR was filed by the appellant merely 5 days later, on 12.09.2023.
There was a clear attempt on the part of the appellant therefore to
scuttle the investigation at the preliminary stage qua him. When
there are adequate grounds to initiate a criminal investigation,
the same cannot be scuttled more particularly when the other
central agencies are also investigating the same scam alleged
against the appellant.
ANALYSIS:
10. At the outset, it may be noted that the PC Act 1988 sets the
framework for prosecuting individuals involved in corrupt activities
and provides measures to prevent corruption in various spheres of
the society. By emphasizing accountability, transparency and strict
legal consequences, the PC Act stands to combat corruption and to
foster and uphold the culture of ethical conduct. The very objectives
of the Act are to prevent corruption, to promote transparency and
accountability in the public administration, to deter individuals from
engaging in corrupt practices by imposing strict penalties, protects
whistleblowers etc. It also provides for the investigation and
prosecution of corruption cases, outlining the procedure for gathering
evidence, conducting trials and ensuring a fair and expeditious legal
process. By the Prevention of Corruption (Amendment) Act 2018
(hereinafter referred to as the Amendment Act, 2018), the PC Act
1988 was further amended, to fill in the gaps in the description and
coverage of the offence of bribery so as to bring it in line with the
current international practices and also to meet more effectively the
country’s obligations under the United Nations Convention Against
Corruption. The Central Government in exercise of the powers
conferred by sub section (2) of Section (1) of the Amendment
Act, 2018, had vide the Notification dated 26.07.2018 appointed
the 26th July 2018 as the date on which the provisions of the said
Amendment shall come into force. Accordingly, the said provisions
of the Amendment Act, 2018 came into force on 26.07.2018.
592 [2024] 1 S.C.R.

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11. By the Amendment Act 2018, several provisions more particularly
the offences described under Section 7, 8, 9, 10 and 13 in the PC
Act, 1988 were substituted with the new provisions; and several
new provisions like Section 7A, 17A, 18A, 29A etc. were inserted.
Certain provisions pertaining to the punishments of the offences
under the Act were also amended. The newly added Section 17A
being relevant for this Appeal, is reproduced as under: -
“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
months, which may, for reasons to be recorded in writing
by such authority, be extended by a further period of one
month.”
[2024] 1 S.C.R. 593

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

12. Since the main issue involved in the present Appeal is in respect
of the interpretation of the newly inserted provision Section 17A,
let us regurgitate the basic principles of Statutory interpretation as
propounded by this Court from time to time. It is well known rule
of interpretation of statutes that the courts must look to the object
which the Statute seeks to achieve while interpreting any of the
provisions of the Act. A purposive approach for interpreting the Act
is necessary9. The purport and object of the Act must be given its
full effect10. The text and the context of the entire Act must be looked
into while interpreting any of the expressions used in the Statue.
If two views are possible, the view which most accords the object
of the Act, and which makes the Act workable must necessarily be
the controlling view. Even penal Statutes are governed not only by
their literal language, but also by the object sought to be achieved
by Parliament11. Even if the words occurring in the Statute are plain
and unambiguous, they have to be interpreted in a manner which
would fit in the context of the other provisions of the Statutes and
bring about the real intention of the legislature12.
13. Although not specifically mentioned in the Statement of Objects
and Reasons of the Amendment Act, 2018, the object of inserting
Section 17A in the PC Act, which is in pari materia with the provisions
contained in Section 6A of the Delhi Special Police Establishment Act
1946, is to protect the honest public servants from the harassment
by way of inquiry or investigation in respect of the decisions taken or
acts done in bonafide performance of their official functions or duties.
Whereas Section 19 bars the courts from taking the cognizance
of an offence punishable under the PC Act, alleged to have been
committed by public servants except with the prior sanction of the
concerned authorities mentioned therein, Section 17A bars the police
officer from conducting any enquiry or inquiry or investigation of
offences relatable to recommendations made or decision taken by
public servant in discharge of official functions or duties, without the
previous approval of the concerned authorities mentioned therein.
From the bare reading, it is discernible that Section 17A has the
following main four facets.

9 S. Gopal Reddy Vs. State of A.P.; 1996 (4) SCC 596.
10 Indian Handicrafts Emporium & Ors. Vs. Union of India & Ors.; 2003 (7) SCC 589.
11 Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs. Central Bureau of Investigation; 2018
(16) SCC 299.
12 R.M.D. Chamarbaugwalla & Anr. Vs. Union of India & Anr; AIR 1957 SC 628.
594 [2024] 1 S.C.R.

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(I) Enquiry or inquiry or investigation of offences under the PC Act.
(ii) Alleged offences should be relatable to the recommendation
made or decision taken by a public servant.
(iii) Such recommendation made or decision taken by a public
servant should be in discharge of official functions or duties and
(iv) Previous approval of the authorities mentioned therein.
14. Though the word ‘Enquiry’ as contained in Section 17A has neither
been defined in the PC Act nor in the CrPC, as per the Standard
Operating Procedures (SOPs) issued by the Ministry of Personnel,
Public Grievances and Pensions (Department of Personnel&
Training) dated 3rd September, 2021 for processing of cases under
Section 17A, “Enquiry” means any action taken, for verifying as to
whether the information received by the Police Officer pertains to
the commission of an offence under the Act (Para 4.2 of the said
SOPs). The meaning of the words ‘inquiry’ and ‘investigation’ for
the purposes of Section 17A could be imported from the definitions
contained in Section 2(g) & Section 2(h) respectively of Cr.PC, the
same being made applicable subject to certain modifications in view
of Section 22 of the PC Act.
15. As stated earlier, the provisions pertaining to the offences under the
PC Act particularly the offences under Section 7, 8, 9, 10 and 13, have
been substantially amended, and the new offence under Section 7(A),
has been inserted by the Amendment Act 16/2018. Such substitution
in place of existing provisions and such insertion of new provisions
in the PC Act, have created new set of rights and liabilities under
the Act. Section 17A having been newly inserted simultaneously with
such amendments in the provisions pertaining to the offences, in
my opinion, Section 17A could be made applicable only to the said
amended/ newly inserted offences under the PC Act. Section 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, Section 17A is required to
be treated as a substantive and not merely a procedural in nature.
Such a substantive amendment could not be made applicable
retrospectively to the offences like Section 13(1)(c) and 13(1)(d),
which have been deleted under the Amendment Act, 2018.
[2024] 1 S.C.R. 595

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

16. The submission of ld. Senior Advocate Mr. Salve that since Section
17A constitutes a legal bar to the very initiation of enquiry, inquiry
or investigation into the offence alleged to have been committed by
a public servant, without the previous approval of the functionaries
specified in the said provision, such a provision is procedural in
nature, and therefore the mandate of Section 17A should be made
retroactively applicable i.e. even to the pending enquiry, inquiry or
investigation, if not made applicable retrospectively, also can not
be accepted. The cardinal principle of construction is that every
statute would have prospective operation, unless it is expressly or
by necessary implication made to have a retrospective operation.
There could not be a presumption against the retrospectivity. In
the instant case, the Amendment Act, 2018, by which Section 17A
was inserted, was specifically made applicable with effect from
26.07.2018 by the Central Government vide the Notification of
the even date. Hence, the intention of the Legislature was also to
make the amendments applicable prospectively from a particular
date and not retrospectively or retroactively. In Vineeta Sharma vs.
Rakesh Sharma and Others13, a three-judge bench has very aptly
distinguished the effect of retrospective statute, retroactive statute
and prospective statute, and has observed as under: -
“61. The prospective statute operates from the date of its
enactment conferring new rights. The retrospective statute
operates backwards and takes away or impairs vested rights
acquired under existing laws. A retroactive statute is the one that
does not operate retrospectively. It operates in futuro. However,
its operation is based upon the character or status that arose
earlier. Characteristic or event which happened in the past or
requisites which had been drawn from antecedent events. Under
the amended Section 6, since the right is given by birth, that
is, an antecedent event, and the provisions operate concerning
claiming rights on and from the date of the Amendment Act.
62. The concept of retrospective and retroactive statute was
stated by this Court in Darshan Singh v. Ram Pal Singh [Darshan
Singh v. Ram Pal Singh, 1992 Supp (1) SCC 191] , thus: (SCC
pp. 211-13, paras 35-37)

13 2020 (9) SCC 1
596 [2024] 1 S.C.R.

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“35. Mr Sachar relies on Gokal Chand v. Parvin
Kumari [Gokal Chand v. Parvin Kumari, (1952) 1 SCC
713 : AIR 1952 SC 231] , Garikapati Veeraya v. N. Subbiah
Choudhry [Garikapati Veeraya v. N. Subbiah Choudhry,
AIR 1957 SC 540] , Jose Da Costa v. Bascora Sadasiva
Sinai Narcornim [Jose Da Costa v. Bascora Sadasiva Sinai
Narcornim, (1976) 2 SCC 917] , Govind Das v. CIT [Govind
Das v. CIT, (1976) 1 SCC 906 : 1976 SCC (Tax) 133]
, Henshall v. Porter [Henshall v. Porter, (1923) 2 KB 193]
, United Provinces v. Atiqa Begum [United Provinces v. Atiqa
Begum, 1940 SCC OnLine FC 11 : AIR 1941 FC 16] , in
support of his submission that the Amendment Act was not
made retrospective by the legislature either expressly or by
necessary implication as the Act itself expressly provided
that it shall be deemed to have come into force on 23-1-
1973; and therefore there would be no justification to giving
it retrospective operation. The vested right to contest which
was created on the alienation having taken place and
which had been litigated in the court, argues Mr Sachar,
could not be taken away. In other words, the vested right
to contest in appeal was not affected by the Amendment
Act. However, to appreciate this argument we have to
analyse and distinguish between the two rights involved,
namely, the right to contest and the right to appeal against
the lower court’s decision. Of these two rights, while the
right to contest is a customary right, the right to appeal is
always a creature of statute. The change of the forum for
appeal by enactment may not affect the right of appeal
itself. In the instant case we are concerned with the right
to contest and not with the right to appeal as such. There
is also no dispute as to the propositions of law regarding
vested rights being not taken away by an enactment which
is ex facie or by implication not retrospective. But merely
because an Act envisages a past act or event in the
sweep of its operation, it may not necessarily be said to
be retrospective. Retrospective, according to Black’s Law
Dictionary, means looking backward; contemplating what
is past; having reference to a statute or things existing
before the Act in question. Retrospective law, according to
the same dictionary, means a law which looks backwards
[2024] 1 S.C.R. 597

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

or contemplates the past; one which is made to affect acts
or facts occurring, or rights occurring, before it came into
force. Every statute which takes away or impairs vested
rights acquired under existing laws, or creates a new
obligation, imposes a new duty, or attaches a new disability
in respect to transactions or considerations already past.
Retroactive statute means a statute which creates a new
obligation on transactions or considerations already past
or destroys or impairs vested rights.”
17. Thus, whereas the prospective statute operates from the date of its
enactments conferring new rights, the retrospective statute operates
backwards and takes away or impairs vested rights acquired under
the existing laws. A retroactive statute is one that does not operate
retrospectively, however depending upon the status and nature of
the events or transactions, the operation of the statute is extended
or given effect from the date prior to its enactment. So far as the
Amendment Act, 2018 is concerned, it has been made applicable
specifically from the date of its notification i.e. 26.07.2018.
18. In Hitendra Vishnu Thakur and Others vs. State of Maharashtra
and Others14, it was held by this Court that a statute which not only
changes the procedure but also creates new rights and liabilities
shall be construed to be prospective in operation unless otherwise
provided either expressly or by necessary implication. The ratio of
the said judgment in Hitendra Vishnu Thakur was also followed in
G.J. Raja vs. Tejraj Surana15.
19. In State of Telangana vs. Managipet @ Mangipet Sarveshwar
Reddy16, this Court rejected the arguments that the amended
provisions of the PC Act would be applicable to an FIR registered
before the said amendment came into force.
20. In a very recent decision in the case of State of Rajasthan vs.
Tejmal Choudhary17, this Court set-aside the interim order passed
by the High Court which had quashed the proceedings only on the

14 (1994) 4 SCC 602
15 (2019) 19 SCC 469
16 (2019) 19 SCC 87
17 (2021) SCC OnLine SC 3477
598 [2024] 1 S.C.R.

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ground that the approval was not obtained under Section 17A of
the PC Act, by observing inter alia that the legislative intent in the
enactment of a statute is to be gathered from the express words
used in the statute, unless the plain words literally construed give
rise to absurd results. It has been further observed therein that this
Court has to go by the plain words of the statute to construe the
legislative intent, and that it could not possibly have been the intent
of the legislature that all pending investigations up to July 2018
should be rendered infructuous.
21. Apart from the afore-stated legal position, it is also required to be
noted that while passing the Amendment Act 2018 by which the
then existing offences under the PC Act were deleted and redefined,
and by which some new offences were inserted, the Legislature
had simultaneously introduced Section 17A. It was also stated in
the Amendment Act that the same shall come into force from the
date as may be notified by the Central Government. Therefore, it is
required to be presumed that the intention of the legislature was to
make Section 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. Any
other interpretation may lead to an anomalous situation resulting
into absurdity in as much as there could not be prior approval of the
authorities as contemplated under Section 17A for the offences which
have been deleted by the Amendment Act, 2018. If the submission
of Mr. Salve that Section 17A is retroactive in operation is accepted,
then all the pending proceedings of enquiry, inquiry and investigation
as on 26.7.2018, carried out in respect of the offences which existed
prior to the amendment would become infructuous, frustrating the
very object of the Act.
22. As stated earlier, the very object of the PC Act is to combat the
corruption, and the object of Section 17A is to protect the honest
and innocent public servants from undergoing the harassment by the
police for the recommendations made or decisions taken in discharge
of official functions or duties. It cannot be the object of Section 17A
to give benefit to the dishonest and corrupt public servants. If any
enquiry or inquiry or investigation carried out by a police officer
in respect of the offence committed by a public servant is held to
[2024] 1 S.C.R. 599

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

be non est or infructuous by making Section 17A retrospectively
or retroactively applicable, the same would not only frustrate the
object of the PC Act but also would be counter-productive. It is
axiomatic that no proceeding could stand vitiated or could become
infructuous on account of the subsequent amendment in the Act.
The well-known and well accepted rule of interpretation of statute
is that the courts should take into consideration the other provisions
of the Act also while interpreting a particular provision, and should
avoid such interpretation as would lead to an anomalous situation
or to frustration of the object of the Act.
23. As held in Subramanian Swamy vs. Manmohan Singh and
Another18, in case of two possible constructions of a provision in the
PC Act, it would be the duty of the court to accept the one that seeks
to eradicate corruption to the one which seeks to perpetuate it. In
Subramanian Swamy vs. Director, Central Bureau of Investigation
and Another19, the Constitution Bench had observed while dealing
with Section 19 of the P.C. Act that the protection against malicious
prosecution which is extended in public interest, cannot become a
shield to protect corrupt officials.
24. The judgment in case of Yashwant Sinha and Others vs. Central
Bureau of Investigation (supra), relied upon by Mr. Salve also
would not be of any help to the appellant. Mr. Salve has relied upon
the observations made by Hon’ble Justice Joseph in his concurring
judgment, which according to Mr. Rohtagi was a discordant note in
variance with the main judgment of two judges. Be that as it may, what
has been observed by Justice Joseph is that Section 17A constitutes
a bar of any enquiry, inquiry or investigation without the previous
approval of the concerned authority. The said observation nowhere
states that Section 17A shall operate retrospectively or retroactively.
25. Even otherwise, absence of approval before conducting any enquiry
or inquiry or investigation into an offence alleged to have been
committed by a public servant, as contemplated in Section 17A
could never be the ground for quashing the FIR registered against

18 (2012) 3 SCC 64
19 (2014) 8 SCC 682
600 [2024] 1 S.C.R.

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the public servant or the proceedings conducted against him, more
particularly when he is also charged for the other offences under the
IPC in respect of the same set of allegations. As stated earlier, there
are other important facets contained in Section 17A, like whether the
alleged offence is relatable to the recommendation made or decision
taken by the public servant or not, and whether such recommendation
or decision was made or taken in discharge of his official functions
or duties or not etc. Such facets could be examined only when the
evidence is led during the course of trial. The alleged acts which
prima facie constitute the offences, though done under the purported
exercise of official function or duty, could not fall within the purview
of Section 17A. The Protection sought to be granted to a public
servant under Section 17A could not be extended to his acts which
prima facie were not in discharge of his official functions or duties.
Any other interpretation would certainly tantamount to scuttling the
investigation at a very nascent stage. Such could neither be the
intention of the legislature nor could such provision be interpreted
in the manner which would be counter productive or frustrating the
very object of the PC Act.
26. In response to the court’s query as to how an FIR could have been
registered in 2021 for the offences under Section 13(1)(c) and 13(1)
(d) which have already been deleted by the Amendment Act 2018,
Mr. Rohtagi submitted that though the old provision of Section 13 has
been substituted by the new provision, and though Section 13(1)(c)
and 13(1)(d) are no more offences under the amended provision of
Section 13, the right of the investigating agency which had accrued
to investigate the crime which took place prior to the amended
provision of Section 13, continues in view of Clauses ‘c’ and ‘e’ of
Section 6 of the General Clauses Act. According to him, unless a
different intention appears in the Amendment Act 2018, the right of
the investigating agency to investigate the offences under Section
13(1)(c) and 13(1) (d) could not be said to have been affected by
the Amendment Act 2018. I find substance in the said submission of
Mr. Rohtagi, in view of the observations made by this Court in M.C.
Gupta vs. Central Bureau of Investigation, Dehradun20, which
clinches the issue.

20 (2012) 8 SCC 669
[2024] 1 S.C.R. 601

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

“14. Viewed from this angle, clauses (c) and (e) of Section
6 of the GC Act become relevant for the present case.
Sub-clause (c) says that if any Central Act repeals any
enactment, the repeal shall not affect any right, privilege,
obligation or liability acquired, accrued or incurred under
any enactment so repealed. In this case, the right which
had accrued to the investigating agency to investigate the
crime which took place prior to the coming into force of the
new Act and which was covered by the 1947 Act remained,
unaffected by reason of clause (c) of Section 6. Clause (e)
says that the repeal shall not affect any investigation, legal
proceeding or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment and
Section 6 further states that any such investigation, legal
proceeding or remedy may be instituted, continued or
enforced and such penalty, forfeiture or punishment may
be imposed as if the repealing Act had not been passed.
Therefore, the right of CBI to investigate the crime, institute
proceedings and prosecute the appellants is saved and not
affected by the repeal of the 1947 Act. That is to say, the
right to investigate and the corresponding liability incurred
are saved. Section 6 of the GC Act qualifies the effect
of repeal stated in sub-clauses (a) to (e) by the words
“unless a different intention appears”. Different intention
must appear in the repealing Act (see Bansidhar [(1989)
2 SCC 557] ). If the repealing Act discloses a different
intention, the repeal shall not result in situations stated in
sub-clauses (a) to (e). No different intention is disclosed
in the provisions of the new Act to hold that the repeal of
the 1947 Act affects the right of the investigating agency to
investigate offences which are covered by the 1947 Act or
that it prevents the investigating agency from proceeding
with the investigation and prosecuting the accused for
offences under the 1947 Act. In our opinion, therefore,
the repeal of the 1947 Act does not vitiate or invalidate
the criminal case instituted against the appellants and the
consequent conviction of the appellants for offences under
the provisions of the 1947 Act.”
602 [2024] 1 S.C.R.

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27. In view of the afore-stated legal position, unless a different intention is
disclosed in the new Act or repealing Act, a repeal of an Act would not
affect the right of the investigating agency to investigate the offences
which were covered under the repealed Act. If the offences were
committed when the repealed Act was in force, then the repeal of
such Act would neither affect the right of the investigating agency to
investigate the offence nor would vitiate or invalidate any proceedings
instituted against the accused. In the instant case also the offences
under Section 13(1)(c) and 13(1)(d) were in force when the same
were allegedly committed by the appellant. Hence, the deletion of
the said provisions and the substitution of the new offence under
Section 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.
28. Having considered the different contours of Section 17A, I am of the
opinion that Section 17A would be applicable to the offences under
the PC Act as amended by the Amendment Act, 2018, and not to
the offences existing prior to the said amendment. Even otherwise,
absence of an approval as contemplated in Section 17A for conducting
enquiry, inquiry or investigation of the offences alleged to have been
committed by a public servant in purported exercise of his official
functions or duties, would neither vitiate the proceedings nor would
be a ground to quash the proceedings or the FIR registered against
such public servant.
29. In the instant case, the 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 under Section 4 and 5 of the PC Act. There was
no jurisdictional error committed by the Special Court in passing
the impugned order of remand. The impugned judgment and order
passed by the High Court also does not suffer from any illegality or
infirmity which would warrant interference of this Court.
30. In that view of the matter, the appeal being devoid of merits is
dismissed.
[2024] 1 S.C.R. 603

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

ORDER
As we have expressed opinions taking different views on the
interpretation of Section 17A of the Prevention of Corruption Act,
1988 as also its applicability to the appellant in the subject-case,
we refer the matter to the Hon’ble the Chief Justice of India. The
Registry to place the papers before the Hon’ble the Chief Justice of
India so that appropriate decision can be taken for the constitution
of a Larger Bench in this case for adjudication on the point on which
contrary opinions have been expressed by us.

Headnotes prepared by: Divya Pandey Result of the case: Matter
referred to the Hon’ble the Chief
Justice of India for constitution of a Larger Bench.