Initial proof a must for probe against public servants: Govt

NEW DELHI: Over three years after Section 17A was inserted to the Prevention of Corruption Act through a legislative amendment, making it mandatory for agencies to seek prior permission before initiating corruption probes against public servants, the Centre has come up with a new standard operating procedure (SOP) on how the Central Bureau of Investigation (CBI) and state anticorruption bodies should handle such investigations.

The SOP, sent to the agency and states on September 3, says that anti-graft probe officers must first verify whether a prima facie (at first sight) offence is made out against a public servant and only then make a request for a formal probe – a condition that some former and serving CBI officers suggested was prohibitive.

To be sure, verifying a prima facie offence is a prerequisite where the alleged offence is related to any recommendation or decision by a public servant in discharge of their official functions or duties; and not when the person is caught red-handed accepting a bribe.

According to the new SOP, which was reviewed by HT, when police officers receive information against a public servant alleging offences under the Prevention of Corruption Act, they must verify whether it “prima facie reveals actual commission of an offence under the Act”. It also specifies which rank of officers are authorised to seek prior approval for a probe. For example, when public servants in question are ministers, chief ministers, members of Parliament, judges of the Supreme Court and high courts, chairpersons of public sector units (PSUs), and public sector banks (PSBs), only an officer of the rank of Director General of Police (DGP) or equivalent (director in the case of CBI), can seek the approval.

Section 17A was brought in by the government through an amendment in July 2018 to bring additional layer of due diligence after several bureaucrats complained that they were not able to take bona fide decisions due to the fear of probe agencies. It makes it mandatory for a police officer to seek previous approval for conducting any “enquiry” or “inquiry” or “investigation” into any corruption-related offence.

The SOP now further explains what needs to be done before such any prosecution permission is sought. The SOP provide the stage-wise processing of information by a police officer, laying down of single-window procedure to specify receipt of the proposal and check-list for submitting proposals under the section.

The police or CBI officer dealing with a complaint/information against a public servant will have to provide the name, current place of posting and rank of the public servant, specific act(s) of commission or omission attributable to him/her, specific recommendation(s) or decision taken by him/her which needs to be probed and deriving of an undue advantage for self or any other person to fulfil the ingredients of offences.

The SOP adds that “deriving of an undue advantage by the public servant for self or for others is a key ingredient for establishing an offence against him and in absence of fulfilment of this condition any act of omission or commission amounts to an administrative misdemeanour only”.

When contacted, some CBI officers said on condition of anonymity that the SOP was an unrealistic layer to already stringent procedures. “The problem is, how can we establish prima facie crime in advance? It can only be done once the investigation begins,” said a senior CBI officer.

A second officer said: “CBI has already been handicapped as it has to approach the administrative authorities/ministries twice – first while seeking a probe and then at the time of mandatory prior sanction to file a charge sheet (under section 197 of Criminal Procedure Code). Section 17A has also taken away the surprise element and caused delays in anti-corruption probes with ministries/departments approached for every enquiry or investigation.”

The agency has pointed out some of these concerns to the government in the last three years, said a senior IPS officer in CBI.

Some officers, however, said that since Section 17A is new, it will evolve in time through judgments by the Supreme Court and the high courts.