J&K High Court Rules Section 17A Violation In Initial Probe Does Not Vitiate Entire Process | Upholds Corruption FIR Against ARTO Officials | Investigation Into Bribery-Touts Nexus To Continue
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar dismissed a petition seeking quashment of an FIR registered under the Prevention of Corruption Act. The Court held that although certain portions of the investigation were conducted prior to obtaining approval under Section 17A of the Prevention of Corruption Act, 1988, this did not warrant quashing the proceedings. The bench directed that the proceedings may continue in view of the fact that the required approval had since been granted. The interim stay was vacated and the petition was accordingly dismissed.
The case concerned allegations of corruption within the ARTO Office, Anantnag. A Joint Surprise Check (JSC) was conducted by the Anti-Corruption Bureau (ACB), Anantnag, into suspicions that touts and agents were operating in collusion with officials of the ARTO Office. According to the contents of FIR No.04/2021, several irregularities were uncovered during a driving trial test. Application forms bore codes in pencil indicating names of touts or agents. These included abbreviations such as A.F for Altaf Photostat, A.K for Aijaz Khanabal, and others. It was alleged that Board members of the ARTO Office were in active collusion with these agents.
Applicants for driving licenses reportedly confirmed payment of bribes via these touts. The trial and fitness tests were allegedly conducted in a hasty manner to accommodate applicants recommended by these intermediaries. Furthermore, social media chats were recovered showing that application numbers and names of touts were forwarded to officials for preferential treatment.
The FIR was registered under Section 7 of the Prevention of Corruption Act read with Section 120-B of the IPC. The petitioners, who were officials of the Motor Vehicles Department serving at the ARTO Office, Anantnag, in 2021, challenged the FIR on multiple grounds. They contended that their actions, including conducting skill and fitness tests, were part of their official duties. Therefore, investigation without prior approval under Section 17A of the PC Act rendered the FIR and subsequent actions invalid.
The respondents, represented by the ACB, submitted that search operations conducted pursuant to authorization orders dated 02.08.2021 yielded incriminating materials, including driving licenses, registration certificates, permit forms, and related documents from both petitioners and touts. Records showed close links between the petitioners and touts, including phone call records and bank accounts under scrutiny.
The ACB argued that initially, the FIR was registered against unidentified public servants, and the complicity of the petitioners surfaced only during the investigation. Approval under Section 17A was obtained subsequently through General Administration Department communication dated 11.11.2022.
The petitioners also argued that the complainant in the FIR had assumed the role of investigator, thereby vitiating the process. Additionally, they submitted that an earlier Investigating Officer had found no case against them, and therefore, fresh investigation required court approval under Section 173(8) CrPC.
The respondent agency maintained that after a new Investigating Officer was assigned, further investigation was initiated without filing any closure report, keeping the process within permissible legal bounds. The agency clarified that Section 17A applies only to acts having a direct nexus with official duties, and public servants cannot claim immunity for actions outside the lawful domain of service functions.
The Court recorded, "The expression 'shall' used by the Legislature in Section 17A of the PC Act, makes it clear that approval of the competent authority is a mandatory requirement for undertaking enquiry, inquiry or investigation into an administrative or official act of a public servant which may constitute an offence under the said Act."
The judgment referred to Supreme Court decisions, including Yashwant Sinha vs. CBI (2020) 2 SCC 338 and Nara Chandrababu Naidu vs. State of Andhra Pradesh (2024 SCC OnLine SC 47), to clarify the mandatory nature of Section 17A.
In examining the FIR, the Court stated, "In the instant case, in the impugned FIR none of the petitioners and, in fact, none of the officials of the ARTO Office, Anantnag, has been named. There is a general allegation that certain touts are in league with officers/officials of ARTO Office, Anantnag."
Further, the Court noted, "It is for the first time in the month of August, 2021 that the Investigating Agency suspected the role of petitioners in the alleged activities... Thus, at that stage, the Investigating Agency was in knowledge about the identity of the suspects i.e. the petitioners herein."
The Court held that once the suspects were identified, the investigating agency was required to seek approval under Section 17A, observing: "It was incumbent upon the respondent Investigating Agency to seek prior approval of the Government for proceeding ahead with the investigation once they came to know about the identity and role of the petitioners."
Regarding the period between 02.08.2021 to 11.11.2022, during which the investigation was carried out without approval, the Court held, "This cannot form a ground for quashing the impugned FIR or the entire investigation conducted so far."
The Court also referred to Section 465 CrPC, stating, "Any finding, sentence or order passed by a Court would not get affected, inter alia, on account of any error or irregularity in any sanction for prosecution unless it is shown that a failure of justice has occasioned thereby."
On the issue of fresh investigation despite the earlier officer’s opinion, the Court recorded, "Section 173(8) of the Cr.P.C operates only after the final report is produced before the Court... it was well within the domain of the Investigating Agency to differ with the opinion of the previous Investigating Officer and to hold fresh investigation into the matter."
The Court concluded, "For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed. Interim stay order shall stand vacated."
The Court held that the investigation conducted between 02.08.2021 and 11.11.2022, though in violation of Section 17A, did not prejudice the petitioners and was not grounds for invalidating the proceedings.
The Court recorded, "Therefore, in the peculiar facts and circumstances of this case, the part of investigation conducted by the respondent Investigating Agency in violation of Section 17A of the PC Act would not vitiate the same, nor would it affect the registration of the impugned FIR and the investigation conducted pursuant thereto."
Further, the Court held, "It was well within the jurisdiction of the Investigating Agency to hold fresh investigation into the matter" and that the initial opinion of the prior Investigating Officer did not preclude ongoing investigation in absence of a final report before court.
Advocates Representing the Parties:
For the Petitioners: Mr. Syed Faisal Qadiri, Senior Advocate, with Mr. Khursheed, Advocate
For the Respondents: Mr. Mohsin Qadiri, Senior AAG, with Ms. Nadiya Abdullah, Assisting Counsel
Case Title: Asif Amin Chalkoo & Ors. v. UT of J&K
Case Number: CRM(M) No.197/2023
Bench: Justice Sanjay Dhar
