Prevention Of Corruption Act, 1988; Section 17A – Per Aniruddha Bose J: If an enquiry, inquiry or investigation is intended in respect of a public servant on the allegation of commission of offence under the 1988 Act after Section 17A thereof becomes operational, which is relatable to any recommendation made or decision taken, at least prima facie, in discharge of his official duty, previous approval of the authority postulated in subsection (a) or (b) or (c) of Section 17A of the 1988 Act shall have to be obtained. In absence of such previous approval, the action initiated under the 1988 Act shall be held illegal – Per Bela M. Trivedi J: Section 17A would be applicable to the offences under the PC Act as amended by the Amendment Act, 2018, and not to the offences existing prior to the said amendment – Referred to larger bench.
FIR against Naidu was registered in the year 2021 for the offences under Section 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act. But these offences were deleted vide 2018 amendment of the PC Act. Then how can these offences be applied in 2021?
Justice Aniruddha Bose noted that these Sections 13 (1)(c) and (d) were alive, at the time of alleged commission of the offences in this case. The judge observed: Once certain offences are deleted from an enactment, they do not vanish totally unless the lawmakers say so. They move to the back pages and can be revived if they were committed before being enacted out of the legislation.
According to Justice Bela M Trivedi, the answer to this question lies in Section 6(c) and (e) of the General Clauses Act. She said: Unless a different intention is disclosed in the new Act or repealing Act, a repeal of an Act would not affect the right of the investigating agency to investigate the offences which were covered under the repealed Act. If the offences were committed when the repealed Act was in force, then the repeal of such Act would neither affect the right of the investigating agency to investigate the offence nor would vitiate or invalidate any proceedings instituted against the accused. In the instant case also the offences under Section 13(1)(c) and 13(1)(d) were in force when the same were allegedly committed by the appellant. Hence, the deletion of the said provisions and the substitution of the new offence under Section 13 by the Amendment Act, 2018 would not affect the right of the investigating agency to investigate nor would vitiate or invalidate any proceedings initiated against the appellant.
So both judges agreed that there is nothing illegal in incorporating these offences in the FIR registered after 2018 amendment came into force since these offences were committed when Section 13(1) (c) and (d) was in force.
Precedential Value Of A Concurring Opinion
In this case, an interesting argument came up for consideration of the Supreme Court. It was that a concurring opinion could not be a binding authority on a point which has not been dealt with by the majority of the Judges in the Bench. Reliance was placed on the judgment in Rameshbhai Dabhai Naika vs State of Gurajat and Others [(2012) 3 SCC 400]. According to Justice Aniruddha Bose, position of law laid down in a concurring judgment ought to be treated as part of the main judgment and that opinion would form a binding authority. The judge further observed that a concurring view is just as much part of the main opinion (of majority of the judges) and will be a binding precedent, composite with the majority view. he position of law would be different if the majority view had expressed, either directly or by implication, a contrary view, the judge said. Justice Bela M. Trivedi did not address this argument.