Section 17A of PC Act took away element of surprise, helped wrongdoers: CBI officials

CEntral Bureau of investigating (CBI) officials say that piece they feature had no problems in getting indorsement for investigating, in high profile cases, of government employees as required under Section 17A of the Prevention of Corruption (PC) Act, the change in law effected in 2018 has taken away the element of surprise, and perhaps helped wrongdoers.The Supreme Court on Tuesday delivered a split verdict on the constitutional validity of 17A, with Justice BV Nagarathna saying it is unconstitutional and needs to be struck down, while Justice KV Viswanathan termed it constitutional and stressed on the need to protect honest officers. It will now be referred to a larger bench by the Chief Justice of India.“In high profile political cases or large frauds involving government servants, getting prior approval has not been a problem,” said a CBI officer, offering the example of Section 17A approvals received by CBI for cases against former Delhi chief minister Arvind Kejriwal and deputy chief minister Manish Sisodia.“However, what 17A has done is that if we inform a particular department that we want to investigate their official and that information reaches them, it takes away the surprise element and gives a chance to that person to destroy evidence or manipulate complainants/witnesses even before a probe has begun,” this officer added, asking not to be named.In statute books since July 2018, 17A states that no enquiry or investigation can be conducted against any public servant, both serving and retired, without prior sanction of the competent authority for any acts or decisions taken during discharge of their official duty.To be sure, the competent authorities do not display the same alacrity when it comes to less high profile cases.According to CBI data, till December 2024, as many as 72 requests concerning 171 government servants under 17A were pending with various ministries and government departments, including the ministries of railways, defence, health, aviation and finance. Out of these, 25 requests involving 80 officials are pending for more than three months even though there are clear guidelines that competent authorities have to decide on police or CBI’s request to grant approval for a probe within three months.“Most of these pending references are in smaller cases,” said a second CBI officer, who too asked not to be named.Some CBI officials say the challenges presented by 17A are similar to those related to the withdrawal of general consent under section 6 of the Delhi Special Police Establishment (DSPE) act, which stipulates that without the consent of the state government, the agency cannot exercise its powers and jurisdiction. Eight states -- West Bengal, Kerala, Jharkhand, Punjab, Meghalaya, Telangana, Tamil Nadu and Karnataka -- have withdrawn this general consent given to CBI due to which it has to send a special request to these states every time it wants to conduct a probe in their jurisdiction.The parliamentary standing committee on personnel, public grievances and law and justice, in its multiple reports in the last few years, has recommended having a separate law granting CBI wider investigative powers without state consent for cases.The second CBI officer cited above said that the agency has taken a proactive approach in the last couple of years by focusing more on so-called trap cases “as no prior approval is required in such corruption probes”.Trap cases, as defined by the agency, are those in which a public servant is caught red-handed while demanding or accepting a bribe.“Out of 807 regular cases (RCs) and preliminary enquiries (PEs) registered by CBI in 2024, 222 were trap cases. Similarly 198 trap cases were registered in 2023. This number used to be around 150-160 cases before 2023,” said the officer.