Naidu quash petition: Section 17A can’t parachute into cases prior to its birth, AP tells SC

Section 17A of the PC Act requires the investigating agencies to take prior sanction of the competent authorities for the registration of an FIR and initiate “inquiry, enquiry or investigation” against a public servant responsible for the decision or recommendation resulting in a loss to the state exchequer and corruption.

In its response, the Andhra Pradesh government told a Bench of Justices Aniruddha Bose and Bela M Trivedi that the application of Section 17A, which was inserted in the PC Act only in 2018, was prospective and not retrospective.

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‘Governor’s sanction not required’

Appearing for the Andhra Pradesh government, senior advocate Mukul Rohatgi told the  bench that no prior sanction from the state Governor was required for registering an FIR and for the consequent investigation against Naidu for alleged corruption and loss to the state in his skill development project during his tenure as chief minister between 2014 and 2019.

Rohatgi said, “Section 17A is not an umbrella to protect all who are corrupt but only the honest public servant. You cannot parachute back into the times when it was not born.”

Senior advocate Harish Salve — appearing for Naidu — had contended that no registration of FIR could be initiated against the former chief minister without the prior sanction from the Governor.

In response, Rohatgi said, “There is no bar in the law for the registration of an offence under the law that was in operation at the time when the crime was committed.”

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Distinction between FIRs registered

When Justice Trivedi asked whether there “can there be an FIR for the offence that is no more an offence (at a later date)”, Rohatgi said, “There is no bar in the law for the registration of an offence under the law that was in operation (when crime was committed) that now stands deleted. Unless it is barred by limitation. Or there is a bar in the new law.”

Justice Trivedi said that there was distinction between an FIR being registered when an earlier law was operating and an FIR being registered when a new law is in force.

“Can an FIR be registered for an offence committed in the past but not for an offence at present,” Justice Trivedi said, making a distinction between FIRs registered earlier under the old law and at a later date when the law is not in operation.

Rohatgi said that the Section 17A came with a “package of wholesale amendments” to Section 7, 8, 9, 10, and 13, to the Prevention of Corruption Act on 26 July, 2018, but this did not obliterate the old package of original provisions for the registration of offences when they were in operation.

When Justice Trivedi said, “If laws brought in gives a greater protection …” to a public servant for the acts done when he was serving, Mukul Rohatgi said that it (the new provision) will not apply to Naidu as “the new package will not parachute in the old law or package. If that was to be so, then Parliament has to say so, which it cannot say”.

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‘Retrospective, not just prospective’

Earlier in the morning, Salve took the Bench through various judgements of the top court to underline that the operation of Section 17A of the PC Act which was inserted in 2018, was retrospective and not just prospective and was applicable in Naidu’s case of Naidu as well.

Salve said that if the court was to accept his case, then all the proceedings initiated before the Anti-Corruption Bureau (ACB) Court under the PC Act would go as under the anti-corruption law and hence, the proceedings could take place before a sessions court.

However, Rohatgi countered this by saying that one of the allegations against Naidu under the PC Act is of cheating, which is also a penal provision under Section 420 of the Indian Penal Code.

Since arguments by Rohatgi were inconclusive, he will resume them on Friday, 13 October, when the matter is posted for further hearing at 2 pm. The Friday hearing will also witness Salve advancing his rejoinder arguments to those advanced by the Andhra Pradesh government.

The top court is hearing a plea by Naidu seeking the quashing of the FIR against him rooted in Andhra Pradesh State Skill Development Corporation scam in which he is alleged to have siphoned of ₹370 crore from a project meant to set up centre to skill youth in the state.

He has challenged the Andhra Pradesh High Court judgement rejecting his plea for the quashing of the FIR.

Naidu is currently in judicial custody.