Retrospective application of Section 17A of the Prevention of Corruption Act, 1988 rejected by the Hon'ble Supreme Court

Section 17A of the Prevention of Corruption Act, 1988 (hereinafter referred to as the "PC Act"), was inserted vide an amendment in 2018 and became effective from 26.07.2018. The said Section 17A of the PC Act states that no inquiry, enquiry or investigation can be conducted into an offence alleged to have been committed by a public servant in discharge of official functions or duties without prior approval of the Central or State Government as the case may be.

In a recent case, the Hon’ble Supreme Court held that Section 17A of the PC Act does not have retrospective application as obvious from the plain, clear and unambiguous language of the provision depicting the doubtless and unequivocal legislative intent to not render all the pending investigations upto July 2018 infructuous.?

A brief background of the said case is that an FIR was lodged against the respondent therein under Section 13(1)(g) and 13(2) of the PC Act read with Sections 420, 467, 468, 471 and 120B of the Indian Penal Code, on 01.01.2018, i.e., before Section 17A of the PC Act was enacted. On appeal filed by the respondent, the FIR was quashed by the High Court of Judicature for Rajasthan at Jabalpur solely on the ground of non-compliance with the requirement of prior approval of the appropriate government under Section 17A of the PC Act.?

The State moved an appeal before the Hon’ble Supreme Court, challenging the final judgment and order of the Rajasthan High Court. The State argued that the Rajasthan High Court should not have quashed the FIR registered on 01.01.2018 on the basis of Section 17A of the PC Act, which was enforced on a later date.?

The question of law before the Hon’ble Supreme Court was whether Section 17A of the PC Act would apply to an investigation that had commenced before Section 17A was enacted?

The Apex Court, to answer the question constructively, reiterated the cardinal principle of construction that every piece of legislation has prospective operation unless stated or proven otherwise. The presumption against retrospectivity could be rebutted by necessary implication or expressed provision made to that effect or even by devising a legal fiction. The Hon’ble Supreme Court while relying?inter alia?on various judgments of Hon’ble Supreme Court itself went on to observe that it is a general principle of interpretation of statutes that a statute dealing with substantive rights and/or liabilities would have prospective application unless stated otherwise, whereas a statute that merely affects the procedure is presumed to be retrospective. However, where a statute changes the procedure along with the rights and liabilities of the parties would be construed as prospective subject to provided otherwise either expressly or by necessary implication.?

The Hon’ble Supreme Court held that the language of Section 17A of the PC Act does not either expressly or by necessary implication supports the retrospective operation of the provision.?

The Hon’ble Court also referred to judgments of the High Courts in State of Telangana vs. Managipet alias Mangipet Sarveshwar Reddy, reported as 2019 (19) SCC 87 and in T.N. Bettaswamaiah vs. State of Karnataka, reported in MANU/KA/9503/2019, deciding against the retrospectivity of Section 17A of the PC Act to substantiate its ruling.????

Therefore, the Hon’ble Supreme Court has by this judgment prevented possible misuse of Section 17A of the PC Act by other accused persons intending to take the benefit of inconsistent decisions of various High Courts.????

-By Poorvi Rai

-Under Guidance of Ms. Aditi Tomar & Ms. Kriti Srivastav

(Team A&S Legal)