The Supreme Court on Monday referred to a larger bench the legal issues stemming from a plea of BJP leader B S Yediyurappa, including the question whether a prior sanction to prosecute is needed under the Prevention of Corruption Act after a magisterial court order of inquiry.A bench of Justices J B Pardiwala and Manoj Misra on April 4 reserved its verdict on Yediyurappa’s plea against an order of the Karnataka High Court reviving a corruption case against him.However, Justice Pardiwala on Monday said when the bench began to write the verdict, it came across an order of April 16, 2024 of a coordinate bench referring similar questions to a larger bench in a separate case.He referred to the principle of “judicial propriety” and said on this aspect alone, Yediyurappa’s plea was being sent to the Chief Justice of India for setting up a larger bench.”When we were about to start working on the judgement, we realised that there is another order passed by a coordinate bench on April 16, 2024 in SLP. The very same issues were referred to the large bench. So we felt that propriety demands that this be also referred,” the bench said.The top court added, “We deem it appropriate to tag these petitions to the referred matter Manju Surana v. Sunil Arora. The registry is directed to place these matters before the CJI.” The bench clarified the reference was only on the ground of propriety and listed out seven questions for adjudication by the larger bench.The high court, on January 5, 2021, allowed a plea of Bengaluru-based A Alam Pasha and revived his complaint against Yediyurappa, former Industries Minister Murugesh R Nirani and Shivaswamy KS, former managing director of Karnataka Udyog Mitra. Pasha alleged charges of corruption and criminal conspiracy against Yediyurappa, Nirani and Shivaswamy KS.The high court ruled the absence of a prior sanction for prosecution leading to the quashing of an earlier complaint did not bar the filing of a fresh complaint once the accused demitted office but did not allow prosecution of V P Baligar, a retired IAS officer and former principal secretary of state government in the case.The top court after hearing the case framed questions for adjudication including whether after a judicial magistrate orders a probe under Section 156(3) of Code of Criminal Procedure (CrPC), would a prior sanction of the appropriate authorities still be required under Section 17A of the PC Act?Section 156 (3) of CrPC permits a judicial magistrate to order a police probe into a complaint and it may include order for a preliminary inquiry or registration of an FIR. Section 17A of the PC Act says, “No police officer shall conduct any enquiry 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 such public servant in discharge of his official functions or duties, without the previous approval”.The legal issues are primarily focused on the interplay between the provisions of the PC Act and CrPC on the issue of prior sanction to prosecute a public servant and power of judicial magistrate to entertain a complaint and order probe and an FIR.”What are the relevant considerations as contemplated by Section 17A of the PC Act, 1988 which the appropriate authority is expected to look into before the grant of approval for initiation of any enquiry, inquiry, or investigation by the police?” read the first question the bench framed.Whether the considerations which weigh with the appropriate authority or government while granting approval under Section 17A of the PC Act are fundamentally so different from the one that a magistrate is ordinarily expected to apply while passing an order under Section 156(3) of CrPC, read the second issue.”In other words, whether the considerations under Section 17A of the PC Act are of such a nature that they are necessarily beyond the ambit or scope of consideration by a Magistrate while directing an investigation under Section 156(3) of the CrPC,” it said.It asked if it could be said that once a magistrate has applied his mind under Section 156(3) of the CrPC, the requirement of a prior approval under Section 17A of the PC Act is meaningless, redundant and no longer necessary.”Could it be said that a police officer, despite a direction under Section 156(3) by a magistrate, would remain inhibited from conducting any enquiry, inquiry, or investigation without prior approval as required by Section 17A,” it added.Whether a magistrate could proceed with inquiry under Sections 200 (examination of private complainant) and 202 (postponement of a criminal case) of CrPC without prior sanction, and whether such actions are limited only to the pre-cognisance stage, read another question.Pasha filed a complaint alleging Yediyurappa and others conspired to forge documents to revoke a high-level clearance committee’s approval for allotting 26 acre of industrial land to him at Devanahalli Industrial Area. The complaint, which invoked provisions under IPC and the PC Act, was initially investigated by Lokayukta Police, but in 2013, the high court quashed the complaint for a lack of mandatory sanction under Section 19 of the PC Act.Subsequently, after the accused vacated their offices, Pasha filed a fresh complaint in 2014, arguing that sanction was no longer required in light of Supreme Court judgment in the A R Antulay case. The special judge, however, dismissed the second complaint in 2016, citing lack of sanction. Challenging dismissal, Pasha approached the high court which passed a partly favourable order.
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