Legality, Propriety of Chandrababu questioned

Vijayawada: Former IPS officer and retired CBI director M Nageswara Rao made caustic remarks on the arrest of former chief minister Chandrababu Naidu in a tweet on X. As per the Arrest Memo of CID of AP, Chandrababu Naidu has been arrested on Saturday in Crime No. 29/2021under sections 120B, 166, 167, 418, 420, 465, 468, 471,, 409, 201, 109 read with 34, 37 IPC and 12, 13(2) read with 13(1)(c) & (d) of Prevention of Corruption Act, 1988 of CID Police Station, Mangalagiri.

Nageswara Rao said, “I cannot comment on the facts of the case as I do not have them. Therefore, I will confine myself to the legality and propriety of the case and the arrest.”

Referring to the legality of the issue, he said that the Prevention of Corruption Act, 1988 was comprehensively amended by Parliament through the Prevention of Corruption (Amendment) Act, 2018 bringing far reaching changes in the former. A new section 17A was inserted into it which reads as follows: “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:"

The former IPS officer said that all the alleged offences mentioned in the Arrest Memo, both under the IPC and the PC Act are relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties as the Chief Minister of AP. Therefore, the prior approval of the Governor who is the authority competent to accord sanction for taking up inquiry, enquiry or investigation against the serving and former CMs and Ministers of AP under section 17A(c) of PC Act is mandatory. Hence, it is important to ascertain from the Investigating Officer whether or not he has obtained the previous approval of the Governor of AP, and if so, he should be asked to furnish a copy of it to Chandrababu Naidu or his representative forthwith. And if such a sanction of Governor of AP was not obtained, then the entire enquiry or inquiry or investigation is void ab initio, and the arrest amounts to commission of offences of wrongful confinement, and public servant disobeying the direction of law with intent to cause injury to any person under sections 342 & 166 IPC respectively in addition to offences under other provisions of law against the police officers concerned.

Regarding to the propriety, Nageswara Rao said that investigation into cases of alleged corruption by the current or former public servants is mostly document-based, as in the instant case of alleged Skill Development Scam against and others. Therefore, as per the general practice of investigation into such cases, the accused public servant is not arrested except in cases where he has refused to cooperate in the investigation by not appearing before the Investing Officer as per notices issued under section 160 CrPC; or the accused is interfering with investigation by trying to gain over or threaten the witnesses; or the accused is trying to cause disappearance of evidence. The IO generally issues a notice to the accused to appear before him at the designated place, date and tim, and thereafter arrests him; or in cases where the IO has brought on record the details of non-cooperation of the accused, he approaches the Special Court for PC Act cases and obtains a Warrant of Arrest. As from the information available, no notice for appearance before the IO was issued nor Warrant of Arrest from the court was obtained to arrest him. Moreover, the criminal case was registered two years ago in 2021. Prior to that, the CID conducted a Preliminary Enquiry. So where is the urgency to arrest a person that, too, a former Chief Minister in the case? Chandrababu Naidu is not an ordinary person, but a former CM and also Z+ Protectee. He is not escaping to anywhere. Being a public person he is very much available. The IO arrested him on Saturday and tomorrow being Sunday, are Court Holidays, so that he does not get bail and he gets remanded to the police custody or jail. Thus, the arrest of is not only improper but also the sinister design and mala fides in it are blatantly and patently evident.

Nageswara Rao, however, concludes, “I am aware that the Police do have the power of arrest of an accused public servant as per law without a warrant from the court. But what is very important is that, it is one thing to have the power and it is entirely different thing to exercise it properly. And when the legal power is not exercised bona fide, then it becomes abuse of law. I hope the learned advocates will consider these points and submit them to the Court appropriately.”