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NEW DELHI: The Supreme Court on Monday referred to a larger bench the legal issues stemming from a plea of BJP leader B S Yediyurappa, including the question whether a prior sanction to prosecute is needed under the Prevention of Corruption Act after a magisterial court order of inquiry.
The bench was in the process of dictating its judgement on Yediyurappa’s plea against an order of the Karnataka High Court reviving a corruption case against him when it found that a matter with similar legal issues was referred to a larger bench.
A bench of Justices J B Pardiwala and Manoj Misra, therefore, refrained from passing the judgement on the ground of judicial propriety.
“We had reserved the matter for judgment while framing the aforesaid questions for consideration (on April 4). However, while preparing the judgment, on the issue relating to the applicability of Aiyappa’s decision we came across an order of this court dated April 16, 2024 passed by a coordinate bench of this court in SLP (Crl),” it noted.
The top court went on, “As for maintaining judicial discipline a coordinate bench of this court has refrained from proceeding further in deciding the underlying issue, which is under reference to a larger bench, we deem it appropriate to tag these petitions with the referred matter.”
The bench then directed its registry to place the matters before the Chief Justice of India for appropriate orders. The verdict was reserved on April 4.
The high court, on January 5, 2021, allowed a plea of Bengaluru-based A Alam Pasha and revived his complaint against Yediyurappa, former Industries Minister Murugesh R Nirani and Shivaswamy KS, former managing director of Karnataka Udyog Mitra.
Pasha alleged charges of corruption and criminal conspiracy against Yediyurappa, Nirani and Shivaswamy KS.
The high court ruled the absence of a prior sanction leading to the quashing of an earlier complaint did not bar the filing of a fresh complaint once the accused demitted office but did not allow prosecution of V P Baligar, a retired IAS officer and former principal secretary of state government in the case.
The top court framed questions, including whether after a judicial magistrate orders a probe under Section 156(3) of Code of Criminal Procedure (CrPC), would a prior sanction of the appropriate authorities still be required under Section 17A of the PC Act? Section 156 (3) of CrPC permits a judicial magistrate to order a police probe into a complaint and it may include order for a preliminary inquiry or registration of an FIR.
Section 17A of the PC Act says, “No police officer shall conduct any enquiry 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.”
One of the questions framed by the top court asks, “What are the relevant considerations as contemplated by Section 17A of the PC Act, 1988 which the appropriate authority is expected to look into before the grant of approval for initiation of any enquiry, inquiry, or investigation by the police?” Whether the considerations which weigh with the appropriate authority or government while granting approval under Section 17A of the PC Act are fundamentally so different from the one that a magistrate is ordinarily expected to apply while passing an order under Section 156(3) of CrPC, read the second issue.
Further, once a magistrate has applied their mind under Section 156(3) of the CrPC, whether the requirement of a prior approval under Section 17A of the PC Act is “meaningless, redundant and no longer necessary”.
Whether a magistrate could proceed with inquiry under Sections 200 (examination of private complainant) and 202 (postponement of a criminal case) of CrPC without prior sanction, and whether such actions are limited only to the pre-cognisance stage, read another question.
Pasha filed a complaint alleging Yediyurappa and others conspired to forge documents to revoke a high-level clearance committee’s approval for allotting 26 acre of industrial land to him at Devanahalli Industrial Area.
The complaint, which invoked provisions under IPC and the PC Act, was initially investigated by Lokayukta Police, but in 2013, the high court quashed the complaint for a lack of mandatory sanction under Section 19 of the PC Act.
Subsequently, after the accused vacated their offices, Pasha filed a fresh complaint in 2014, arguing that sanction was no longer required in light of Supreme Court judgment in the A R Antulay case. The special judge, however, dismissed the second complaint in 2016, citing lack of sanction.
Challenging dismissal, Pasha approached the high court which passed a partly favourable order.
