INDIA Trends and Developments Contributed by: Kamal Shankar, Atul N Menon, Arjun Narang and Shivam Jain, AZB & Partners
The BNS imposes punishment for bribery with imprisonment extendable up to one year or with a fine, or both. Even bribery by treating – which is gratification consisting of food, drinks, enter - tainment or provisions – is punishable with a fine. The BNS categorically excludes a declaration of public policy or a promise of public action from the offence of bribery. There are no other offences on corruption/brib - ery in the BNS, and the PCA is now the primary law on corruption in India. Law on Sanctioning Required for Prosecuting a Public Servant The PCA mandates that prior approval of the competent authority is required before inves - tigating alleged offences by public servants in the discharge of their official functions or duties. Section 17A of the PCA, which came into effect on 26 July 2018, aims to protect honest pub - lic servants from harassment during inquiries in respect of the decisions taken or acts done in the bona fide performance of their official functions or duties. Recent court cases have explored the application and scope of Section 17A, which are discussed below. In Nara Chandrababu Naidu v State of Andhra Pradesh, 2024, SCC OnLine SC 47, a two-judge bench of the Supreme Court gave a split verdict on the applicability of Section 17A to an inquiry initiated after the inclusion of the provision in the PCA, and referred the matter to a larger bench. Although the Court agreed on the prospective nature of Section 17A, the divergence of views was on the issue of the timing of applicability of Section 17A – ie, whether it applies when the inquiry has started or when the offence is com - mitted. While a larger bench of the Supreme Need for sanctioning before the commencement of investigation
Court is yet to decide on this moot point, various High Courts have expressed views on the scope and application of Section 17A. More recently, in Ranidan Singh v State of Rajasthan and Another, SB Criminal Misc (Pet) No 1219/2022, the Rajasthan High Court held that a prior approval under Section 17A is not required to trap a public servant who allegedly demanded gratification. However, after the trap is successful, prior approval under Section 17A must be obtained from the competent authority of the State to lodge an FIR against said public servant and to initiate an investigation into the offence. In the case of Bindulal and Others v State and Another, WP (Crl) No 281/2024, the Kerala High Court directed the State Vigilance and Corrup - tion Bureau to conduct a preliminary inquiry under Section 154 of the CrPC, and, while doing so, waived the mandate of a prior sanc - tion on the grounds that the prior sanction is not required when a constitutional court passes an order to enquire or investigate under Sec - tion 17A of the PCA. Section 154 of the CrPC mandates the registration of an FIR by the police upon receiving information about the commis - sion of a cognisable offence. Recently, in Shri Siddaramaiah v State of Kar - nataka and Others, WP No 22356 of 2024, the Karnataka High Court dismissed Chief Minister Siddaramaiah’s plea challenging the governor’s decision to grant a sanction under Section 17A of the PCA for an investigation into an alleged corruption scam. The Court ruled that approval under Section 17A can be sought by the com - plainant directly from the competent authority, who in the present case was the governor of Karnataka. The Court further held that the gov - ernor in normal circumstances has to act on the
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