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Report No. 254

Chapter VII

Analysis of Section 17A(1) of the 2013 Bill

7.1.1. The proposed Section 17A of the PC Act, introduced pursuant to the 2014 amendment, provides for investigation of offences relatable to recommendations made or decision taken by a public servant in the discharge of their official duties. Section 17A(1) provides for "previous approval" to be taken from the Lokpal or the Lokayukta, as the case may be, where the "alleged offence is relatable to any recommendation made or decision taken by a public servant in the discharge of his official functions or duties." The proposed Section 17A(1) reads as follows:

17A. Investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.

(1) No police officer shall conduct any investigation 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 a public servant in the discharge of his official functions or duties, without the previous approval-

(a) of the Lokpal, in the case of a public servant who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union, and is a person referred to in clauses (a) to (h) of sub-section (1) of section 14 of the Lokpal and Lokayuktas Act, 2013;

(b) of the Lokayukta of the State or such authority established by law in that State under whose jurisdiction the public servant falls, in the case of a person who is employed, as the case may be, was at the time of commission of the alleged offence employed in connected with the affairs of a State, conveyed by an order issued by the Lokpal in accordance with the provisions contained in Chapter VII of the Lokpal and Lokayuktas Act, 2013 or Lokayukta of the State or such authority referred to in clause (b) for processing of inestigation against the public servant

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue financial or other advantage for himself or for any other person intending that, in consequence, a relevant public function or activity shall be performed improperly either by himself or by another public servant.

7.1.2. The proposed section 17A (1), introduced in 2014, thus extends such a limited requirement of "previous approval" to public servants who are or were in service at the time of the alleged offence. This is in line with the provisions of section 197 Cr.P.C. and the scheme of section 14 of the Lokpal Act.

7.1.3. The proviso to the proposed section 17A (1) is similar to Clause (2) of the repealed section 6A of the Delhi Special Police Establishment Act, 1946 (hereinafter "DSPE Act") which provided that in certain factual scenarios/gross cases, no sanction/previous approval would be necessary.

However, the proviso to the proposed section 17A (1) is narrower than Section 6A (2) of the DSPE Act - now requiring that even if a person is caught on the spot while accepting illegal gratification ("undue financial or other advantage"), it would have to be shown by the prosecution that it was intended that such acceptance consequential to a relevant public function or activity being performed improperly.

7.1.4. Recommendation: The following expression should be deleted from the proviso to Section 17A(1):

"intending that in consequence a relevant public function or activity shall be performed improperly either by himself or another public servant"

7.2 The amended version of the proposed section 17A(1), introduced vide the 2014 amendment, along with other consequential amendments, should now read as follows:

17A. Investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.

(2) No police officer shall conduct any investigation 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 a public servant in the discharge of his official functions or duties, without the previous approval-

(c) of the Lokpal, in the case of a public servant who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union, and is a person referred to in clauses (a) to (h) of sub-section (1) of section 14 of the Lokpal and Lokayuktas Act, 2013;

(d) of the Lokayukta of the State or such authority established by law in that State under whose jurisdiction the public servant falls, in the case of a person who is employed, as the case may be, was at the time of commission of the alleged offence employed in connected with the affairs of a State, conveyed by an order issued by the Lokpal in accordance with the provisions contained in Chapter VII of the Lokpal and Lokayuktas Act, 2013 or Lokayukta of the State or such authority referred to in clause (b) for processing of investigation against the public servant Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person.



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