Former Andhra Pradesh Chief Minister and Telugu Desam Party (TDP) chief N Chandrababu Naidu Tuesday failed to secure any relief from the Supreme Court which posted for October 9 his plea challenging the high court order refusing to quash an FIR against him in the Skill Development Corporation scam case.
A bench of Justices Aniruddha Bose and Bela M Trivedi asked senior advocate Mukul Rohatgi, appearing for the Andhra Pradesh government, to place on record all material which were produced before the high court in connection with the case.
Rohatgi argued that Naidu’s petition for quashing the FIR be rejected as the question about the applicability of section 17A of the Prevention of Corruption Act does not arise as the provision came into force in July 2018, while the CBI began probing the case in 2017.
Section 17A was introduced by an amendment with effect from July 26, 2018 and the provision stipulates a mandatory requirement for a police officer to seek prior approval from the competent authority for conducting any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under the Prevention of Corruption Act (PC Act).
Senior advocates Harish Salve, Abhishek Singhvi and Siddharth Luthra, appearing for Naidu, said all allegations in the FIR pertain to decisions, instructions or recommendations made by Naidu when he was the chief minister.
“This is nothing but a political case and section 17A would apply in the matter,” Salve said, adding section 17A is applicable in the case as the inquiry started in December, 2021.
There is a subtle difference between the words enquiry and inquiry, with the former denoting general asking of questions and the latter meaning formally seeking information or beginning investigation.
During the hearing that lasted nearly 50 minutes, the bench questioned the applicability of section 17A of the PC Act in the case and asked whether the provision will be applicable even when the FIR speaks about offences under the Indian Penal Code.
Salve said section 17A of the PC Act says “any offence” and hence the provision would also apply to offences under the IPC as it makes no distinction between offences.
He said the high court wrongly interpreted Section 17A of the PC Act which relates to acts done by a public servant in discharge of official functions.
“The manner in which the judge gave its finding is not correct. This is pure procedure. You have to obtain a sanction. It has nothing to do with the date of the offence, it has to do with the date of the inquiry,” Salve said, adding that the provision was inserted to prevent the abuse of the process of law.
He said the inquiry of the alleged offence started on December 9, 2021 which was based on a letter dated September 7, 2021 written to the Director General of Police.
“This is a pure political act and the judge has interpreted that the provision would not apply retrospectively. The applicability of the provision section 17A has nothing to do with the date of offence but the date of inquiry is relevant,” he contended.
Salve said the provision mandates the police officer to have a screening before a case is lodged.
Justice Bose said it needs to be seen whether on the date of inquiry there was any approval or not.
Senior advocate Abhishek Singhvi, also appearing for Naidu, referred to Justice KM Joseph’s separate judgement on the review petition in the Rafale fighter jet deal case in which it was held that Section 17A of the PC Act mandates prior approval for investigation. He said the top court had held that section 17A is applicable with respect to offences which were allegedly committed prior to the 2018 amendment to the PC Act.
As soon as senior advocate Siddharth Luthra, also appearing for Naidu, started arguing, Justice Trivedi asked as to how many senior lawyers are going to argue for the same person.
“We would not have permitted so many lawyers had it been lower court or the high court. In the Supreme Court, you have that privilege,” Justice Trivedi said.
Luthra said, “They are roping him (Naidu) in FIR after FIR. This is a clear case of regime revenge. A 73-year-old person is being interrogated continuously and another two FIRs are lined up. Kindly don’t allow the trial court to entertain the plea of investigators seeking police custody of Naidu.”
Justice Bose said the court is not going to examine the question of police remand at this stage. He also assured Luthra that the court will not give a longer date.
Rohatgi, appearing for the Andhra Pradesh government, said the question about the applicability of section 17A of the PC Act does not arise in this case as the provision kicked in in July 2018.
“Though the FIR was registered in 2021, the inquiry in the case arose prior to the insertion of 17A,” he insisted, adding the CBI was seized of the matter since 2017 and thus inquiry had actually started prior to 2018.
The bench asked if there are documents to show that the inquiry had actually started before 2018 and what kind of inquiry it was. Rohatgi said he will place on record all relevant documents which were furnished to the high court. The bench then directed Rohatgi to place on record all relevant material and listed the matter for hearing on October 9.
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Naidu’s plea had initially come up for hearing before the designated bench of justices Sanjiv Khanna and SVN Bhatti on September 27 but the latter recused himself from hearing the matter.
The matter then came up for hearing before a bench headed by Chief Justice DY Chandrachud, which refused to restrain the trial court from dealing with a plea seeking Naidu’s police custody as it announced that a new bench will hear his petition.
Naidu, 73, was arrested on September 9 for allegedly misappropriating funds from the Skill Development Corporation when he was the chief minister in 2015, causing a purported loss of Rs 371 crore to the state exchequer. His judicial remand has been extended by the trial court till October 5.
The CID, in its remand report, alleged that Naidu “indulged in a criminal conspiracy with the intention of fraudulent misappropriation or otherwise conversion of government funds for his own use, disposal of property which was under the control of a public servant, besides engaging in cheating, forging documents and destroying evidence”.
Naidu had moved the top court on September 23, challenging the Andhra Pradesh High Court order dismissing his petition for quashing the FIR against him in connection with the alleged scam.
While dismissing his petition, the high court had said criminal proceedings ought not to be scuttled at the initial stage and quashing an FIR should be an exception rather than the rule.
