The Bombay High Court has clarified that Section 17(A) of the Prevention of Corruption Act, 1988 is not applicable to cases of disproportionate assets, as such offences are not relatable to any recommendation made or decision taken by a public servant in the discharge of official functions or duties; therefore, no previous approval from the Competent Authority is required for the police to conduct an enquiry or inquiry into such offences.
The High Court explained that the Competent Authority under Section 17(A) of the PC Act has a limited role to verify if the preliminary material collected by the Enquiry Officer makes out a prima facie case warranting investigation for offences relatable to official decisions or recommendations. The Competent Authority has no jurisdiction, power, or authority under Section 17(A) to usurp the powers of the authorized Enquiry Officer under Section 17, conduct a hearing, evaluate evidence on merits, undertake a detailed enquiry, or conclude that no offence is committed.
The Division Bench comprising Justice A. S. Gadkari and Justice Ranjitsinha Raja Bhonsale observed that Section 17(A) of the Prevention of Corruption Act, 1988 (PC Act) comes into play at a stage prior to conducting investigation and is restricted in its scope. This section can be invoked only when there is a ‘decision’ taken or ‘recommendation’ made by a public servant in the discharge of his official functions or duties. Previous approval under Section 17(A) is not envisaged for each and every enquiry or investigation into any or every offence committed by a public servant.
The Bench pointed out that acts and conduct of public servants which are independent of the official duty and/or ex facie criminal do not require previous approval under Section 17(A), which does not protect offences like cheating, misappropriation, fraud, falsification of accounts, criminal breach of trust, receiving bribes, and/or cases of disproportionate assets, as these are beyond its scope and ambit.
The present case pertains to the grievance of Waghmare possessing assets disproportionate to his known sources of income, which is not relatable to any recommendation made or decision taken in the official capacity. Therefore, the basic premise that Section 17(A) of the PC Act is applicable in the present case is totally misplaced and misconceived, and no previous approval from the competent authority was required, added the Bench.
The Bench then emphasised that the power and authority to investigate an offence under the PC Act is vested exclusively in authorized police officers under Section 17 of the PC Act. The Competent Authority under Section 17(A) cannot and ought not to take over the role and duties of the authorized Enquiry Officer. The Competent Authority has no power to shut down or foreclose an enquiry or investigation, nor can it take over and enter into the arena and domain of investigation.
At the stage of seeking ‘previous approval’, the Enquiry Officer is required to form only a preliminary and tentative opinion or a prima facie case based on credible evidence. The Competent Authority considering on merits the incriminating material, the say of the public servant, or giving him a hearing to conclude that an investigation is unnecessary is a concept alien to Section 17(A) and cannot be accepted in law, added the Bench.
Lastly, the Bench stated that the Respondent No. 4 exceeded its jurisdiction by granting a hearing to Waghmare, which is not envisaged under Section 17(A), and by taking upon itself the task of inquiry and investigation. By refusing ‘previous approval’ and recording a finding that there are no ‘disproportionate assets’, the Competent Authority acted without authority, encroached upon the powers of the Officers under Section 17 and 19 of the PC Act, and attempted to obstruct an independent and impartial investigation.
Briefly, the Petitioner filed a complaint with the Superintendent of Police, Anti-Corruption Bureau (ACB), vide letter dated 18th May 2016, raising the issue of disproportionate assets against Prashant Madhukar Waghmare, who worked as a City Engineer at Pune Municipal Corporation. The Petitioner alleged that Waghmare owned disproportionate assets approximately to the tune of Rs. 2000 Crores, routed corrupt money through companies owned by his wife and brother, protected illegal constructions by builders, and misused TDR.
The Enquiry Officer, Sanjay Patange, recorded the statement of the Petitioner on 12th November 2018 and was directed to conduct a discreet enquiry against Mr. Waghmare. During the discreet enquiry, Waghmare did not fully co-operate, failing to provide information regarding his son’s education expenses, overseas trips, details of shares, bank deposits, properties, and the books of accounts and income tax returns of the companies owned by his mother, wife, and brother. Due to the non-cooperation and the need for a detailed investigation, the Enquiry Officer sought permission for conducting an open enquiry. The Superintendent of Police, ACB, Pune, recommended seeking ‘prior approval’ of the Competent Authority for the open enquiry.
The Competent Authority, i.e., the Commissioner of the Pune Municipal Corporation (Respondent No. 4), by Orders dated 16th April 2019 and 25th April 2019, rejected the sanction sought by the ACB for an open enquiry. This rejection was based on a hearing granted to Waghmare, his written explanation, and documents produced by him, leading the Competent Authority to conclude that no case was made out against Waghmare. Consequently, directions were issued by the ACB on 28th June 2019 and 18th July 2019 for the closure of the ongoing confidential enquiry.
Appearances:
Senior Advocate Rajiv Chavan, along with Advocates Rohan Mahadik, Mekhala More, Bharvi Samel, Bhavin Vora, Asmi Desai and Sonal Pandey, for the Petitioner
APP Ajay Patil, for the Respondent/ State
Senior Advocate Sanjeev Kadam, along with Advocates Abhijit Kulkarni, Varsha Thorat, Rahul Garg, Sweta Shah, Gourav Sahane and Abhishek Roy, for the Respondent No. 4/ PMC
