Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties

Section 17A of the Prevention of Corruption Act, 1988 deals with enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties. [17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.-- No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a pub The Act came into force on 09 Sep 1988.

¹[17A. Enquiry or Inquiry or investigation of offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties.-- No police officer shall conduct any enquiry or inquiry or investigation 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--

(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;

(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:

Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:

Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.]

STATE AMENDMENT

Union Territory of Jammu and Kashmir and Union Territory of Ladakh

Insertion of section 17B. After section 17A, insert the following section, namely:

17B. Establishment of Anti-Corruption Bureau for the Union territory of Jammu and Kashmir.(1) Notwithstanding anything contained in this Act, the Government of Union territory of Jammu and Kashmir shall, by notification in the Official Gazette, establish a Bureau for investigation of offences under this Act under the name of Anti-Corruption Bureau.

(2) The Bureau shall consist of the Director and such other officers and staff subordinate to him as the Government of Union territory of Jammu and Kashmir may from time to time think fit to appoint.

(3) The qualification of officers (other than the Director) shall be such as may be prescribed by the Government of Union territory of Jammu and Kashmir:

Provided that till qualification of officers (other than the Director) is prescribed by the Government of Union Territory of Jammu and Kashmir, the rules notified by the Government in this regard under the Prevention of Corruption Act, Samvat, 2006 (now repealed) shall continue to govern the qualification of such officers.

(4) The Director and the officers and staff subordinate to him shall hold office for such term and on such conditions as the Government of Union Territory of Jammu and Kashmir may from time to time determine.

Explanation:-The Anti-Corruption Bureau established under the Prevention of Corruption Act, Samvat, 2006 (now repealed) shall deemed to be Anti-Corruption Bureau established under the provisions of this Act, as if the same has been established under the provisions of this Act and any reference to the Anti-Corruption Bureau in any law, order, notification or rules in force in the Union Territory of Jammu and Kashmir shall be construed to mean the Anti-Corruption Bureau established under the provisions of this Act.

Insertion of section 17C to 17G.After section 17A, insert the following sections, namely:

17C. Powers of attachment of property.(1) If an officer (not below the rank of Deputy Superintendent of Police) of the Anti-Corruption Bureau, investigating an offence committed under this Act, has reason to believe that any property in relation to which an investigation is being conducted has been acquired by resorting to such acts of omission and commission which constitute an offence of criminal misconduct as defined under section 5, he shall, with the prior approval in writing of the Director of the Anti-Corruption Bureau, make an order seizing such property and, where it is not practicable to seize such property, make an order of attachment directing that such property shall not be transferred or otherwise dealt with, except with the prior permission of the officer making such order or of the Designated Authority to be notified by the Government of Union territory of Jammu and Kashmir before whom the properties seized or attached are produced and a copy of such order shall be served on the person concerned:

Provided that the Investigating Officer may, at any stage of investigation after registration of F.I.R. in respect of any case under the Act where he has reason to believe that such property is likely to be transferred or otherwise dealt with to defeat the prosecution of the case direct that such property shall not be transferred or dealt with for such period, not exceeding ninety days, as may be specified in the order except with the prior approval of the Designated Authority.

Explanation.For the purposes of this section, attachment shall include temporarily assuming the custody, possession and/or control of such property].

(2) The Investigating officer shall inform the Designated Authority, within forty eight hours, of the seizure or attachment of such property together with a report of the circumstances occasioning the seizure or attachment of such property, as the case may be.

(3) It shall be open to the Designated Authority before whom the seized or attached properties are produced either to confirm or revoke the order of seizure or attachment so issued within [thirty days]:

Provided that an opportunity of being heard shall be afforded to the Investigating Officer and the person whose property is being attached or seized before making any order under this sub-section:

Provided further that till disposal of the case the Designated Authority shall ensure the safety and protection of such property.

(4) In the case of immovable property attached by the Investigating Officer, it shall be deemed to have been produced before the Designated Authority, when the Investigating Officer notifies his report and places it at the disposal of the Designated Authority.

(5) Any person aggrieved by an order under the proviso to sub-section (1) may apply to the Designated Authority for grant of permission to transfer or otherwise deal with such property.

(6) The Designated Authority may either grant, or refuse to grant, the permission to the applicant.

(7) The Designated Authority, acting under the provisions of this Act, shall have all the powers of a civil court required for making a full and fair enquiry into the matter before it.

17D. Appeal against the order of Designated Authority.(1) Any person aggrieved by an order made by the Designated Authority under sub-section (3) or sub-section (5) of section 17C may prefer an appeal, within one month from the date of receipt of the order, to the Special Judge and the Special Court may either confirm the order of attachment of property or seizure so made or revoke such order and release the property or pass such order as it may deem just and proper within a period of sixty days.

(2) Where any property is seized or attached under section 17C and the Special Court is satisfied about such seizure or attachment, it may order forfeiture of such property, whether or not the person from whose possession it is seized or attached is prosecuted in the Special Court for an offence under this Act.

(3) It shall be competent for the Special Court to make an order in respect of property seized or attached,

(a) directing it to be sold if it is a perishable property and the provisions of section 459 of the Code of Criminal Procedure, 1973 (2 of 1974) shall, as nearly as may be practicable, apply to the net proceeds of such sale;

(b) nominating any officer of the Government, in the case of any other property, to perform the function of the Administrator of such property subject to such conditions as may be specified by the Special Court.

17E. Issue of show-cause notice before forfeiture of the property.No order under sub-section (2) of section 17D shall be made by the Special Court

(a) unless the person holding or in possession of such property is given a notice in writing informing him of the grounds on which it is proposed to forfeit such property and such person is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of forfeiture and is also given a reasonable opportunity of being heard in the matter;

(b) if the person holding or in possession of such property establishes that he is a bona fide transferee of such property for value without knowing that such property has been so acquired.

17F. Appeal.(1) Any person aggrieved by order of the Special Court under section 17D may within one month from the date of the receipt of such order, appeal to the High Court of Jammu and Kashmir.

(2) Where any order under section 17D is modified or annulled by the High Court or where in a prosecution instituted for the contravention of the provisions of this Act, the person against whom an order of the special court has been made is acquitted, such property shall be returned to him and in either case if it is not possible for any reason to return the forfeited property, such person shall be paid the price therefor as if the property had been sold to the Government with reasonable interest calculated from the date of seizure of the property and such price shall be determined in the manner prescribed.

17G. Order of forfeiture not to interfere with other punishments.The order of forfeiture made under this Act by the Special Court, shall not prevent the infliction of any other punishment to which the person affected thereby is liable under this Act.]

[Vide the Jammu and Kashmir Reorganization (Adaptation of Central Laws) Order, 2020, notification No. S.O. 1123(E) dated (18-3-2020).]

Section 17A, The Prevention of Corruption Act, 1988 (Act 49 of 1988).