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TMI Blog2024 (1) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... JUDGMENT ANIRUDDHA BOSE, J. Leave granted. 2. The appellant is aggrieved by initiation of a criminal proceeding against him and his detention in connection with the same by the respondent State through its CID. Allegations have been made against him for commission of offences under Sections 166, 167, 418, 420, 465, 468, 471, 409, 209 and 109 read with Sections 120B, 34 and 37 of the Indian Penal Code, 1860 and Section 12 and 13(2) read with Sections 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. The said offences are alleged to have been committed between the years 2015 and 2019, during which period he was the Chief Minister of the State of Andhra Pradesh. Initially, a First Information Report dated 09.12.2021 was lodged with CID Police Station, Andhra Pradesh, Mangalagiri implicating twentysix persons as accused. On that basis, CR No. 29/2021 was registered. The appellant was not included in the array of accused persons in that F.I.R. The offences primarily relate to siphoning of public funds and I shall refer broadly to the allegations forming the basis of the F.I.R. in the succeeding paragraphs of this judgment. The list of accused persons was subsequently exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government contribution was limited to 10 percent of the cost amounting to Rs.55,00,00,000/, with SIEMENS and Design Tech providing grantinaid of 90% i.e., Rs.491,84,18,908/. It is the State's case that requirement of contribution of the two corporate entities was ignored and the final memorandum of agreement only entailed outflow of Rs.330/crores from the State to Design Tech. A signed copy of this memorandum, which does not carry any date, has been made Annexure R15 to the counteraffidavit of the State (Volume IV at page 206). 4. Submission on the part of the State is that in course of an investigation by the Additional Director General, GST Intelligence at Pune, while examining claims of availing CENVAT credit by Design Tech and one Skillar Enterprises India Pvt. Ltd. ("Skillar"), a financial scam was unearthed involving both SIEMENS and Design Tech. This was in relation to funds pertaining to the project of setting up skill development centres. The complaint of the taxing body was that SIEMENS and Design Tech had subcontracted substantial part of their work to Skillar despite there being no provision of any subcontract in the Agreement. Design Tech had claimed that Skillar pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd approved the cost estimation with criminal intent and by pursuing the government officials, he had ensured release of Rs.370/crores. The project was allotted to Design Tech and SIEMENS on nomination basis, without following any tender process. Misappropriation of government funds through corrupt and illegal methods has been alleged and abuse of official position has been attributed to the appellant. Summary of the allegations against the appellant is revealed from the Memorandum dated 08.09.2023, filed on behalf of the prosecution, for adding the appellant as an accused. These allegations, interalia, are to the following effect: ".... A37 by abusing his (A37) official position, fraudulently committed criminal breach of trust with a common intention, caused wrongful loss to the Government exchequer by allowing accused and others to divert APSSDC funds by using fake invoices as genuine one for purpose of cheating through the shell, defunct companies without providing materials/services to the APSSDCSiemens project." 6. On behalf of the appellant, the main argument, which was also made before the High Court, revolves around noncompliance of Section 17A of the Prevention of Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f one month." 8. The High Court, interalia, held that the said provision cannot be applied to any offence committed prior to 26.07.2018. It has also been highlighted before us on behalf of the State that offences under Section 13 (1) (c) & (d) were deleted from the said statute by the Prevention of Corruption (Amendment) Act, 26 of 2018. It was by the same Amendment Act, that Section 17A was incorporated in the said statute. On this basis, it is urged, that any protective measure, which is conceived in the Amendment Act could not extend to offences committed when such protective measure for obtaining prior approval was not a part of the statutory scheme. The High Court primarily decided the case on the premise that the aforesaid provision cannot be given retrospective effect. 9. The other limb of argument of the State, which was also sustained by the High Court is that a regular inquiry was already ordered on 05.06.2018 regarding the allegations of corruption against the officials of APSSDC. This was ordered by the Director General of AntiCorruption Bureau, Andhra Pradesh. A redacted version of this letter dated 05.06.2018 has been annexed in Volume V of the compilation of docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uption Bureau of that State, which states that the bureau is investigating a regular enquiry pertaining to allegations of corruption, misappropriation of funds and procedural lapses in relation to collaboration of APSSDC/AP Government with Design Tech. It appears that there was a previous communication in this regard dated 09.02.2021. Even though reference is made to the letter of 05.06.2018 in this communication, there are no specific particulars of such enquiry or the date on which such enquiry was started. There are subsequent letters dated 22.02.2021, 30.03.2021, 23.06.2021 and 18.08.2021, all referring to the letter of 05.06.2018. But as it has been already observed earlier, there are no specific particulars regarding when and in what form the enquiry has started. There obviously was a time gap between the date of issue of the letter of 05.06.20218 and actual date on which the enquiry was commenced. The State has justified this delay in its counter affidavit. It has been stated that instead of acting on the letter of the taxing authorities dated 14.05.2018, which in turn has been referred to in the communication of 05.06.2018, the note file pertaining to the project was remove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecified therein. A request to conduct an enquiry by itself cannot be the starting point of the enquiry under the said provision to bypass the restriction postulated therein. Moreover, in the facts of this case, actual search for information had commenced in the year 2021, as I have already indicated, and lack of action on this count has been attributed by the State to the appellant and the other accused persons themselves. We are not going into the truth of such allegations. But if such allegations are assumed to be correct, the same shall only support the appellant's case that no enquiry was initiated before incorporation of Section 17A in the statute book. Further, in the F.I.R. or the preliminary enquiry report dated 09.12.2021, there was no reference to the communication of 05.06.2018. I, accordingly, hold that before Section 17A of the 1988 Act had become operational, no enquiry, inquiry or investigation had commenced as against the appellant in relation to the subject crime. 14. Mr. Salve has also relied on a Standard Operating Procedure (hereinafter referred to as "SOP") for processing cases under Section 17A of the 1988 Act. This has been issued under Memo no.428/07/2021AV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held by a Coordinate Bench of this Court that looking at the nature of allegations in the complaint, at that stage it was impossible to conclude that the acts alleged to have been done by the accused were committed by her while in discharge of official duty. The High Court judgment was set aside and it was opined by the Coordinate Bench in the facts of that case, that a final view on that issue would be taken only after the evidence was recorded. 17. So far as the provision of Section 197 of the 1973 Code is concerned, the requirement for deciding the question on obtaining sanction is at the stage of taking cognizance. Thus, some element of application of mind is necessary while examining that issue. In the case of Matajog Dobey vsH. C. Bhari (AIR 1956 SC 44), there was use of force when a tax raiding party was resisted from conducting a search. This gave rise to two complaints, which were sent to two magistrates for judicial enquiry. Summonses were issued against the income tax officials and the accompanying policemen over use of force. Matajog Dobey (supra), the resistor, contended that use of such force was not in discharge of official duty. Objection was raised against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with it the power of doing all such acts or employing such means as are reasonably necessary for such execution. If in the exercise of the power or the performance of the official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance. This accords with common sense and does not seem contrary to any principle of law. The true position is neatly stated thus in Broom's Legal Maxims, 10th Edn. at p. 312:" It is a rule that when the law commands a thing to be done, it authorises the performance of whatever may be necessary for executing its command." The scope of operation of Section 17A of the 1988 Act is, however, different from that of Section 197 of the Code. The requirement of taking sanction under Section 19 of the 1988 Act also is at the same stage. Unlike Section 197 of 1973 Code (which is near identically phrased as the same section in the earlier version of the Code), Section17A of the 1988 Act imposes restriction on police officer at the enquiry stage itself, from proceeding against a public servant in relation to any offence alleged to have been committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etired public servant, is a question which can be examined during the course of the trial as held by this Court in K. Kalimuthu [K. Kalimuthu v. State, (2005) 4 SCC 512 : 2005 SCC (Cri) 1291] . In fact, in a recent judgment in Vinod Kumar Garg v. State (NCT of Delhi) [Vinod Kumar Garg v. State (NCT of Delhi), (2020) 2 SCC 88 : (2020) 1 SCC (Cri) 545 : (2020) 1 SCC (L&S) 146] , this Court has held that if an investigation was not conducted by a police officer of the requisite rank and status required under Section 17 of the Act, such lapse would be an irregularity, however unless such irregularity results in causing prejudice, conviction will not be vitiated or be bad in law. Therefore, the lack of sanction was rightly found not to be a ground for quashing of the proceedings." 18. I shall test later in this judgment as to whether the remand proceeding before the Special Judge was mere irregularity or fatal, but before that I have to answer the question as to whether the protection of Section 17A is applicable in the case of the appellant. 19. Large part of Mr. Salve's arguments was devoted to the proposition that the content of Section 17A of the 1988 Act was procedural in nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n FIR, registered before the said amendment came into force and found that the High Court had rightly held that no grounds had made out for quashing the proceedings." In the present case, original FIR was registered on 09.12.2021 and the appellant was implicated in the aforesaid offences on 08.09.2023. There is no evidence of any substantive enquiry, inquiry, or investigation made against him prior to coming into operation of the Section 17A of the 1988 Act. Hence, the case at hand is distinguishable from the ratio laid down in the judgment of this Court of in the case of Tejmal Choudhary (supra). 21. The Amendment Act by which Section 17A of the 1988 Act was brought into the said statute also deleted the provisions of sub-clauses (c) and (d) of Section 13 (1) thereof. At the time the memorandum of adding the appellant as accused was issued, the said Amendment Act had become operational, but at the time of alleged commission of offence, aforesaid two sub-clauses were part of the statute book. Thus, per se, the appellant could be held liable for commission of offences stipulated in the said provisions, though their subsequent deletion might have some impact on the ultimate outcom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime of alleged commission of the offences, these provisions were alive. 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. But I cannot give a restrictive interpretation to the expression "under this Act" to give an isolated retrospective operation to the said phrase, detaching it from rest of the provisions of Section 17A of the Act and remove the protective shield in a situation where an enquiry has started after introduction of the said provision but relates to an offence committed prior to its introduction in 2018. The said phrase ought to be relatable to the date of starting of the enquiry, inquiry or investigation and not to the time or date of commission of offence. 23. Otherwise, if I apply an interpretation of the expression "under this Act" to mean the statute as it exists at the time the enactment is invoked, the same phrase is invoked, the same might result in divesting the Special Judge of his power to proceed against the appellant, as at the time the appellant's case was brought to the Special Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding six months at a time; so, however, that the said period together with such extended period shall not exceed ordinarily four years in aggregate." 24. Now if I accept the meaning Mr. Rohtagi wants us to give to the said expression as employed in Section 17A of the 1988 Act, the same expression i.e. "under this Act" as contained in Section 3 (1) (a) would also have to be read to mean as "the Act" prevailing at the point of time the appellant's case is brought to the Special Judge. This would result in shrinking the jurisdiction of the Special Judge to try offences which have been repealed by the Amendment Act of 2018. I am unable to agree with Mr. Rohatgi on this point. It is an established principle of statutory interpretation that if a particular phrase is employed in different parts of an enactment, Courts ought to proceed with an understanding that the legislature intended to assign the same meaning to that expression used in different provisions thereof, unless of course, a contrary intention appears from the statute itself. Here I find no such contrary intention. 25. Now I shall examine the legality of a proceeding which is started without complying with the requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged is relatable to any recommendation made or decision taken by the public servant in discharge of his public functions without previous approval, inter alia, of the authority competent to remove the public servant from his office at the time when the offence was alleged to have been committed. In respect of the public servant, who is involved in this case, it is clause (c), which is applicable. Unless, therefore, there is previous approval, there could be neither inquiry or enquiry or investigation. It is in this context apposite to notice that the complaint, which has been filed by the petitioners in Writ Petition (Criminal) No. 298 of 2018, moved before the first respondent CBI, is done after Section 17A was inserted. The complaint is dated 4-10-2018. Para 5 sets out the relief which is sought in the complaint which is to register an FIR under various provisions. Paras 6 and 7 of the complaint are relevant in the context of Section 17A, which read as follows: "6. We are also aware that recently, Section 17A of the Act has been brought in by way of an amendment to introduce the requirement of prior permission of the Government for investigation or inquiry under the Prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. I should not distinguish between the main judgment and the concurring view and isolate the reasoning contained in the concurring opinion and hold the reasoning contained in the main opinion (of majority of the judges) only to have the status of a binding precedent. The 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. The position of law would be different if the majority view had expressed, either directly or by implication, a contrary view. That is not the case so far as the judgment in the case of Yashwant Sinha (supra) is concerned. Hence this principle of law contained in the concurring judgment would constitute precedent even though it was expressed in a concurring judgment of a learned Single Judge which the majority members of the Bench have not differed. Thus, the steps taken against the appellant under the 1988 Act ought to be invalidated as the same did not commence with prior approval as laid down under Section 17A of the 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused and also the order of the remand Court. The IPC offences also relate to the same or similar set of transactions, for which the aforesaid provisions of the 1988 Act were applied. The substantive offences alleged against the appellant are Section 12 and Sections 13(1) (c) and (d) read with Section 13(2), which is the provisions prescribing punishment. I am not satisfied, at this stage, that the 1988 Act offences are so dominant in the set of allegations against the appellant that once I consider the allegations against the appellant de hors the alleged offences under 1988 Act, the allegations of commission of the IPC offences would automatically collapse. At this stage, in my opinion, the alleged commission of IPC offences are not mere ancillary to the 1988 Act offences, as has been argued by Mr. Salve and Mr. Luthra and if commission of offences by the appellant under the IPC provisions is proved, could form the basis of conviction independent of the offences under the 1988 Act. Thus, the ratio of the judgement of this Court in the case of Ebha Arjun Jadeja and others vs State of Gujarat [(2019) 9 SCC 789], to which I was a party, would not aid the appellant. In this judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case" relating to PC offences. In the instant case, no PC offence has been committed by any of the nonpublic servants so as to fall under Section 3(1) of the PC Act. Consequently, there was no occasion for the Special Judge to try any case relating to the offences under the PC Act against the appellant. The trying of any case under the PC Act against a public servant or a nonpublic servant, as already indicated, is a sine qua non for exercising powers under subsection (3) of Section 4 of the PC Act. In the instant case, since no PC offence has been committed by any of the nonpublic servants and no charges have been framed against the public servant, while he was alive, the Special Judge had no occasion to try any case against any of them under the PC Act, since no charge has been framed prior to the death of the public servant. The jurisdictional fact, as already discussed above, does not exist so far as this appeal is concerned, so as to exercise jurisdiction by the Special Judge to deal with nonPC offences. 47. Consequently, we find no error in the view taken by the Special Judge, CBI, Greater Mumbai in forwarding the case papers of Special Case No. 88 of 2001 in the Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this context, I shall refer to Section 223 of the 1973 Code, which stipulates : " 223. What persons may be charged jointly.-The following persons may be charged and tried together, namely:- (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence; (c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last named offence; (f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and Sections 220 and 223 of the Code of Criminal Procedure, it must be held that the appellant and his co-accused may be tried by the Special Judge in the same trial. 15. This is because the co-accused of the appellant who have been also charged of offences specified in Section 3 of the Act must be tried by the Special Judge, who in view of the provisions of subsection (3) of Section 4 and Section 220 of the Code may also try them of the charge under Section 120B read with Section 420 IPC. All the three accused, including the appellant, have been charged of the offence under Section 120B read with Section 420 IPC. If the Special Judge has jurisdiction to try the co-accused for the offence under Section 120B read with Section 420 IPC, the provisions of Section 223 are attracted. Therefore, it follows that the appellant who is also charged of having committed the same offence in the course of the same transaction may also be tried with them. Otherwise it appears rather incongruous that some of the conspirators charged of having committed the same offence may be tried by the Special Judge while the remaining conspirators who are also charged of the same offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to as the "PC Act"), and its applicability to the facts of the present case. Having had the benefit of going through the draft opinion of my esteemed Brother Justice Aniruddha Bose, I deem it appropriate to pen down my views on the issues involved in the Appeal. FACTUAL MATRIX: 3. Bereft of unnecessary details, the bare minimum facts required to decide the present Appeal are that the appellant, who is sought to be added as the accused No. 37 vide the "Accused Adding Memo" dated 08.09.2023, in the FIR No. 29/2021 registered at the P.S. CID P.S., AP, Amarvathi, Mangalalagiri, on 09.12.2021, was the Chief Minister of Andhra Pradesh between 2014-2019. The said FIR No.29/2021 was initially registered against 26 accused on the basis of the report of the Chairman APSSDC dated 07.09.2021 and the preliminary enquiry report dated 09.12.2021, for the offences under Sections 166, 167, 418, 420, 465, 468, 471, 409, 201, 109 read with 120-B IPC and Section 13(2) read with Section 13(1)(c) and 13(1)(d) of the PC Act, in connection with the alleged swindling of funds by the then Special Secretary and other officers of the Government and by the Directors, Project team members and other office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to himself and others. Therefore, a prima-facie case was established for the offences U/s 120(B), 418, 420, 465, 468, 471, 409, 201, 109 r/w 34 & 37 IPC & Section 12, 13(2) r/w 13(1) (c) and (d) of Prevention of Corruption Act, 1988 against Sri Nara Chandra Babu Naidu (A- 37), formerly Chief Minister of Andhra Pradesh and against Sri K. Atchannaidu, the then Minister for Labour & Employment, Factories, Youth & Sports, Skill Development and Entrepreneurship, Govt. of A.P were added as accused no. 37 and A-38 respectively to this case." 6. The appellant was arrested on 09.09.2023 and was produced before the Special Court for SPE and ACB cases Vijayawada, A.P. The Special Court on 10.09.2023, passed the order remanding the appellant (accused no.37) to the judicial custody till 22.09.2023 under Section 167 Cr.PC by holding inter alia that the material on record prima facie showed that accused no. 37 had in pursuance of criminal conspiracy, while holding his office as a public servant, colluded with the other accused and committed misappropriation of government funds to the tune of Rs.279 crores by corrupt and illegal methods, causing huge loss to the Government exchequer. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;and on Rattan Lal Alias Ram Rattan Vs. State of Punjab AIR 1965 SC 444. (v) No person has a "vested right in the remedies and the methods of procedure in trials for crime." A law that draws upon antecedent facts in its prospective operation is not retrospective - it is sometimes referred to as being retroactive. (vi) Section 17A is retroactive in the sense that it would apply in future in relation to all enquires, inquires or investigations being conducted, even though such enquiries, inquires or investigations may be in respect of offences which may have allegedly been committed prior to coming into force of Section 17A. (vii) Section 17A (c) uses the phrase "at the time when the offence was alleged to have been committed". Meaning thereby it suggest that the provision is intended to apply to offences committed in the past without any limitation. (viii) The question whether a prosecution can be initiated after a substantive offence is deleted is not being raised in the present case - the appellant's case will be that in such matters, if the law does not consider an act to be an offence anymore, initiating a prosecution after the offence is deleted violates Article 21. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Punjab vs. Davinder Pal Singh Bhullar & Others (2011) 14 SCC 770. (xiv)A legal bar to a prosecution is a valid ground for quashing the proceedings as held by this Court in R.P. Kapur vs. State of Punjab AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal 1992 (Suppl.) SCC 335. 9. Learned Senior Advocate Mr. Mukul Rohtagi for the Respondent - State of Andhra Pradesh made following submissions: - (i) None of the facets contained in Section 17A would be applicable to the facts of the present case in as much as Section 17A of the PC Act came into force with effect from 26.07.2018, whereas the Regular Enquiry was initiated in respect of the alleged scam against the appellant and others by ACB vide the letter dated 05.06.2018, on the basis of the complaint received from within the DGSTI on 14.05.2018. When the Enquiry began, Section 17A was not in existence and therefore cannot be made applicable to the present case. (ii) On 11.07.2021, the State issued a memo at the request of the M.D. of APSSDC entrusting a detailed investigation into the very alleged scam. As long as the enquiry into the offence. i.e. facts constituting the offence by the ACB and the CID enquiry are one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an obstacle/ hurdle in the investigation process of the prosecution, especially when the sanction is denied. Section 17A creates new rights, disabilities and obligations and therefore it ought not to be applied retrospectively as held in G.J. Raja vs. Tejraj Surana (2019) 9 SCC 469. (viii) Under the 2018 amendment, other than introducing Section 17A, other sections like Section 13 (1)(c) and 13(1) (d) i.e. the offences for which the appellant is charged, were specifically repealed and the offences were redefined. Section 17A can have no application to the offences as they existed prior to the 2018 amendment. (ix) Even if Section 17A of the PC Act were to be applicable to the present case, the IPC offences would survive and therefore also the FIR qua the appellant cannot be quashed. The question of competence of a particular court to try the offences would arise only after the investigation is complete and a chargesheet is filed. (x) When one of the co-accused has been charged under the offences under both the PC Act and the IPC, while the other co-accused have only been charged under the IPC, the Special Court would have jurisdiction to try both the accused persons in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution of corruption cases, outlining the procedure for gathering evidence, conducting trials and ensuring a fair and expeditious legal process. By the Prevention of Corruption (Amendment) Act 2018 (hereinafter referred to as the Amendment Act, 2018), the PC Act 1988 was further amended, to fill in the gaps in the description and coverage of the offence of bribery so as to bring it in line with the current international practices and also to meet more effectively the country's obligations under the United Nations Convention Against Corruption. The Central Government in exercise of the powers conferred by sub section (2) of Section (1) of the Amendment Act, 2018, had vide the Notification dated 26.07.2018 appointed the 26th July 2018 as the date on which the provisions of the said Amendment shall come into force. Accordingly, the said provisions of the Amendment Act, 2018 came into force on 26.07.2018. 11. By the Amendment Act 2018, several provisions more particularly the offences described under Section 7, 8, 9, 10 and 13 in the PC Act, 1988 were substituted with the new provisions; and several new provisions like Section 7A, 17A, 18A, 29A etc. were inserted. Certain provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act must be looked into while interpreting any of the expressions used in the Statue. If two views are possible, the view which most accords the object of the Act, and which makes the Act workable must necessarily be the controlling view. Even penal Statutes are governed not only by their literal language, but also by the object sought to be achieved by Parliament Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs. Central Bureau of Investigation; 2018 (16) SCC 299. Even if the words occurring in the Statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the Statutes and bring about the real intention of the legislature R.M.D. Chamarbaugwalla & Anr. Vs. Union of India & Anr; AIR 1957 SC 628. 13. Although not specifically mentioned in the Statement of Objects and Reasons of the Amendment Act, 2018, the object of inserting Section 17A in the PC Act, which is in pari materia with the provisions contained in Section 6A of the Delhi Special Police Establishment Act 1946, is to protect the honest public servants from the harassment by way of inquiry or investigation in respect of the decisions taken or acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions pertaining to the offences, in my opinion, Section 17A could be made applicable only to the said amended/ newly inserted offences under the PC Act. Section 17A having been introduced as a part of larger legislative scheme, and the other offences under the PC Act having been redefined or newly inserted by way of Amendment Act, 2018, Section 17A is required to be treated as a substantive and not merely a procedural in nature. Such a substantive amendment could not be made applicable retrospectively to the offences like Section 13(1)(c) and 13(1)(d), which have been deleted under the Amendment Act, 2018. 16. The submission of ld. Senior Advocate Mr. Salve that since Section 17A constitutes a legal bar to the very initiation of enquiry, inquiry or investigation into the offence alleged to have been committed by a public servant, without the previous approval of the functionaries specified in the said provision, such a provision is procedural in nature, and therefore the mandate of Section 17A should be made retroactively applicable i.e. even to the pending enquiry, inquiry or investigation, if not made applicable retrospectively, also can not be accepted. The cardinal princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the legislature either expressly or by necessary implication as the Act itself expressly provided that it shall be deemed to have come into force on 23-1-1973; and therefore there would be no justification to giving it retrospective operation. The vested right to contest which was created on the alienation having taken place and which had been litigated in the court, argues Mr Sachar, could not be taken away. In other words, the vested right to contest in appeal was not affected by the Amendment Act. However, to appreciate this argument we have to analyse and distinguish between the two rights involved, namely, the right to contest and the right to appeal against the lower court's decision. Of these two rights, while the right to contest is a customary right, the right to appeal is always a creature of statute. The change of the forum for appeal by enactment may not affect the right of appeal itself. In the instant case we are concerned with the right to contest and not with the right to appeal as such. There is also no dispute as to the propositions of law regarding vested rights being not taken away by an enactment which is ex facie or by implication not retrospective. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt which had quashed the proceedings only on the ground that the approval was not obtained under Section 17A of the PC Act, by observing inter alia that the legislative intent in the enactment of a statute is to be gathered from the express words used in the statute, unless the plain words literally construed give rise to absurd results. It has been further observed therein that this Court has to go by the plain words of the statute to construe the legislative intent, and that it could not possibly have been the intent of the legislature that all pending investigations up to July 2018 should be rendered infructuous. 21. Apart from the afore-stated legal position, it is also required to be noted that while passing the Amendment Act 2018 by which the then existing offences under the PC Act were deleted and redefined, and by which some new offences were inserted, the Legislature had simultaneously introduced Section 17A. It was also stated in the Amendment Act that the same shall come into force from the date as may be notified by the Central Government. Therefore, it is required to be presumed that the intention of the legislature was to make Section 17A applicable only to the new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution which is extended in public interest, cannot become a shield to protect corrupt officials. 24. The judgment in case of Yashwant Sinha and Others vs. Central Bureau of Investigation (supra), relied upon by Mr. Salve also would not be of any help to the appellant. Mr. Salve has relied upon the observations made by Hon'ble Justice Joseph in his concurring judgment, which according to Mr. Rohtagi was a discordant note in variance with the main judgment of two judges. Be that as it may, what has been observed by Justice Joseph is that Section 17A constitutes a bar of any enquiry, inquiry or investigation without the previous approval of the concerned authority. The said observation nowhere states that Section 17A shall operate retrospectively or retroactively. 25. Even otherwise, absence of approval before conducting any enquiry or inquiry or investigation into an offence alleged to have been committed by a public servant, as contemplated in Section 17A could never be the ground for quashing the FIR registered against the public servant or the proceedings conducted against him, more particularly when he is also charged for the other offences under the IPC in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. In this case, the right which had accrued to the investigating agency to investigate the crime which took place prior to the coming into force of the new Act and which was covered by the 1947 Act remained, unaffected by reason of clause (c) of Section 6. Clause (e) says that the repeal shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment and Section 6 further states that any such investigation, legal proceeding or remedy may be instituted, continued or enforced and such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed. Therefore, the right of CBI to investigate the crime, institute proceedings and prosecute the appellants is saved and not affected by the repeal of the 1947 Act. That is to say, the right to investigate and the corresponding liability incurred are saved. Section 6 of the GC Act qualifies the effect of repeal stated in sub-clauses (a) to (e) by the words "unless a different intention appears". Differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the instant case, the Appellant having been implicated for the other offences under IPC also, the Special Court was completely within its jurisdiction to pass the remand order in view of the powers conferred upon it under Section 4 and 5 of the PC Act. There was no jurisdictional error committed by the Special Court in passing the impugned order of remand. The impugned judgment and order passed by the High Court also does not suffer from any illegality or infirmity which would warrant interference of this Court. 30. In that view of the matter, the appeal being devoid of merits is dismissed. ORDER As we have expressed opinions taking different views on the interpretation of Section 17A of the Prevention of Corruption Act, 1988 as also its applicability to the appellant in the subject-case, we refer the matter to the Hon'ble the Chief Justice of India. The Registry to place the papers before the Hon'ble the Chief Justice of India so that appropriate decision can be taken for the constitution of a Larger Bench in this case for adjudication on the point on which contrary opinions have been expressed by us. ............................. J. (ANIRUDDHA BOSE) ................... ..... X X X X Extracts X X X X X X X X Extracts X X X X
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