New Delhi: The Andhra Pradesh government Tuesday told the Supreme Court that TDP chief N Chandrababu Naidu's claim of protection under a provision mandating prior approval before conducting an inquiry in a corruption case is unacceptable as it is not an "umbrella" where the corrupt can hide but meant to protect honest officials.
Section 17A was introduced by an amendment with effect from July 26, 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 Prevention of Corruption Act (PC Act).
A bench of Justices Aniruddha Bose and Bela M Trivedi was told by senior advocate Mukul Rohatgi, appearing for the Andhra Pradesh government, that the decisions and actions of Telugu Desam Party (TDP) leader N Chandrababu Naidu, arrested in the Skill Development Corporation scam case, has resulted in immense corruption and loss to the state exchequer.
"Section 17A of PC Act is not an umbrella where the corrupt can hide but is meant to protect honest officials, who are scared to take decisions in discharge of their official duty. The PC Act does not provide any roadblock or hurdle to curb corruption. It's a Parliament effort to root out corruption and protect honest officials," Rohatgi submitted, adding that there was no "political vendetta" as alleged by Naidu.
During the over two-hour-long hearing, Justice Bose asked Rohatgi whether the protective umbrella of section 17A could be applied retrospectively.
"No, you cannot parachute section 17A back in time. That's what they want to do. Section 17A was born in 2018, then how can it be applied in 2015? It can be done only if the Parliament specifically says so," Rohatgi said.
The top court is hearing Naidu's plea challenging a high court order refusing to quash the FIR against him in the Skill Development Corporation scam case.
Rohatgi said issues arising in Naidu's petition cannot be decided in the plea filed for quashing of the FIR.
"Questions like what was the official duty, what were the decisions taken, what were the recommendations are some of the issues related to the case which cannot be decided without looking at the evidence and it can be done only before the trial court," he said.
He said such large-scale corruption and misappropriation in the instant case cannot be ex-facie (on the face of it) a case of discharge of official duty.
The senior lawyer added there was no political vendetta and the FIR in the case was registered in 2021, while the offence predates the 2018 amendment made in the PC Act.
"He (Naidu) was added as an accused in 2023 when certain material against him surfaced," Rohatgi said.
The hearing remained inconclusive and would continue on October 13.
At the outset, senior advocate Harish Salve, appearing for Naidu, said before the police started inquiring into the role of a public servant, they should have gone and taken the governor's assent.
Referring to the Devender Pal Singh Bhullar's 2011 verdict of the apex court, Salve said it was held that if initial action was not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root.
"Absence of prior sanction has always been considered to be fatal to the inquiry… The agency will have to procure a sanction and then begin the inquiry. The object of the Prevention of Corruption Act is not only to strengthen the law on corruption, but also to ensure that it is not abused," he submitted.
On Monday, the top court told Naidu that his contention of mandatory prior approval before conducting an inquiry in a corruption case will be viewed in a way that the object of the Prevention of Corruption Act does not get defeated.
Naidu, 73, was arrested on September 9 for allegedly misappropriating funds from the Skill Development Corporation when he was the chief minister in 2015, causing a purported loss of Rs 371 crore to the state exchequer. His judicial remand has been extended by the trial court till October 5.
The CID, in its remand report, alleged that Naidu "indulged in a criminal conspiracy with the intention of fraudulent misappropriation or otherwise conversion of government funds for his own use, disposal of property which was under the control of a public servant, besides engaging in cheating, forging documents and destroying evidence".
Naidu had moved the top court on September 23, challenging the Andhra Pradesh High Court order dismissing his petition for quashing the FIR against him in connection with the alleged scam.
While dismissing his petition, the high court had said criminal proceedings ought not to be scuttled at the initial stage and quashing an FIR should be an exception rather than the rule.
Naidu is currently under judicial remand and lodged in the Rajamahendravaram Central Prison. PTI MNL IJT
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