While Justice Bose is in favour of applicability of the Sec 17A PC Act, which mandates the Governor's permission in Naidu's arrest, his colleague Justice Trivedi disagrees.
Published Jan 16, 2024 | 2:51 PM ⚊ Updated Jan 16, 2024 | 2:51 PM
Currently, Naidu faces six cases filed by the YSRCP. (Commons)
TDP chief and former chief minister Chandrababu Naidu’s plea to quash the FIR in the Skill Development scam case against him has been referred by the Supreme Court, on Tuesday, 16 January, to the Chief Justice of India (CJI) for consideration by a larger bench.
The two-judge apex court bench was divided over the applicability of Section 17A of the Prevention of Corruption Act, 1988, amended in 2018.
Currently, Naidu faces six cases filed by the YSRCP regime. Apart from the APPSSDC scam case, he is being investigated for the Amaravati Inner Ring Road case, the AP FiberNet case, the Punganur violence case, the free sand policy case, and the liquor policy case.
Naidu has secured interim bail in all cases except for the AP Fibernet scam case and the CID petition challenging the regular bail granted to him by the state High Court in the APSSDC scam case.
The Supreme Court has scheduled the hearing for the Fibernet case on 17 January and the CID petition challenging his regular bail on January 19.
Justice Bose stated that obtaining sanction from the Governor before any such arrest is necessary, but his colleague, M Trivedi, disagreed. Both the judges delivered separate judgements.
Trivedi argued that Section 17A of the Prevention of Corruption Act, 1988, amended in 2018, would only be applicable to new offences under the PC Act. In this case, the CBI initiated the investigation in 2017.
Justice Bose asserted that prior sanction under Section 17A of the Prevention of Corruption Act, 1988, must be obtained after it became operational. Failing to do so would render an inquiry illegal.
Consequently, he concluded that Naidu could not be proceeded against for offences under Section 13(1)(c), 13(1)(d), and 13(2) of the 1988 Act due to the absence of prior approval from the concerned authority.
However, he clarified that the CID could now apply for and obtain the approval order. He also ruled that the trial court had jurisdiction to pass the remand order and rejected the plea to quash it.
Justice Bose said, “However, I refuse to quash the remand order. The lack of approval will not make remand order non-est.”
Justice Bela Trivedi held a different view on interpreting Section 17A.
She stated that this provision could not be applied retrospectively. Section 17A, being substantive, would only apply to new offences under the PC Act, amended in 2018. The prior sanction requirement under Section 17A would only be applicable to new offences and not to offences existing before the 2018 amendment. She emphasised the legislative intent, stating that “Applying Section 17A retrospectively would frustrate many pending inquiries and investigations and would not serve the objective of benefiting dishonest public servants.”
Trivedi opined, “The lack of approval of Section 17A cannot be a ground to quash the FIR, especially when offences under IPC are also registered.”
Following their split views, the two justices referred the case to the CJI for appropriate directions referring to a larger bench.
Naidu, while on a campaign trail in Nandyal, was arrested by the Andhra Pradesh CID on 9 September in connection with the ₹371 crore APSSDC scam. Subsequently, on 10 September, he was sent to judicial custody at Rajahmundry Central Jail until 31 October.
On 31 October, he was granted a four-week health bail for undergoing cataract surgery on his right eye. Subsequently, on 20 November, the high court granted him regular bail starting from 28 November, when the conditional bail expired.
The case revolved around establishing clusters of Centres of Excellence (CoEs) in Andhra Pradesh, with a total estimated project value of ₹3,300 crore. The alleged fraud caused a massive loss to the Government of Andhra Pradesh to the tune of ₹371 crore.
In an attempt to quash the FIR related to the APSSDC scam case, Naidu approached the high court.
However, in its verdict on 22 September 2023, the high court declined to entertain the request, asserting that ‘criminal proceedings ought not to be scuttled at the initial stage and quashing an FIR should be an exception rather than the rule.’
Naidu immediately approached the Supreme Court, filing a special leave petition to challenge the high court order.
On 17 October of the previous year, Justices Aniruddha Bose and Bela M Trivedi, constituting an apex court bench, reserved their verdict on Naidu’s plea.
In the arguments, the lawyers appearing for Naidu had argued that all allegations in the FIR pertained to decisions, instructions or recommendations made by Naidu when he was the chief minister.
They argued that section 17A of the Prevention of Corruption Act (PCA) was applicable in the case as the inquiry started in December 2021.
They further contended that the FIR against Naidu was registered without obtaining the prior approval of the competent authority in the scam case, and, therefore, his arrest was illegal.
The counsel appearing for the state had argued that Naidu’s petition for quashing the FIR be rejected as the question about the applicability of section 17A of the PCA does not arise as the provision came into force in July 2018, while the CBI began probing the case in 2017.
The state counsel highlights that Section 17A was introduced by an amendment with effect from 26 July 2018, and the provision stipulates a mandatory requirement for a police officer to seek prior approval from the competent authority for conducting any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the PCA.
