CRIMINAL MISCONDUCT
U/s 13(1)(d) OF
PREVENTION OF CORRUPTION ACT 1988
The Prevention of Corruption Act of 1947 created a new offence called Criminal Misconduct in the discharge of official duty. Section 5 of the said Act defined the various categories of Criminal Misconduct by Public Servants. Clause (d) of sub-section (1) of section 5 stated that a public servant is said to commit the offence of criminal misconduct if he by corrupt or illegal means or by otherwise abusing his position as a Public Servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
Misconduct Need Not Be In The Discharge Of Official Duty:
The question whether misconduct should be in discharge of official duty was considered by the Supreme Court in Dhaneswar Narain Saxena Vs. Delhi Administration (AIR 1962 Supreme Court 195). In that case, the Accused was an upper division clerk in the office of the Chief Commissioner of Delhi who took money from one Ram Narain for rendering assistance to him in obtaining a licence for his double barrel gun from the office of the Deputy Commissioner, Delhi. The Supreme Court held that it is not necessary that the public servant while misconducting himself, should have done so in the discharge of his duty. It would be anomalous to say that a public servant has misconducted himself in the discharge of his duty, because “duty” and “misconduct” go ill together and it would not ordinarily be in the discharge of his duty, but the reverse of it.
Consequently, by an amendment to this section by the Anti-Corruption Laws (Amendment) Act, 1964, in sub-sections (1) and (2) the words “in the discharge of his duty” were omitted.
Abuse Of Official Position Is A Necessary Ingredient:-
The Supreme Court while interpreting the scope of Section 5(1)(d) referred to the clause “by otherwise abusing the position of a public servant” and held that the clause covers acts done “otherwise” than by “corrupt” or “illegal” means by an officer abusing his position. Hence the gist of the offence under Section 5(1)(d) is that a Public Officer abusing his position as a Public Servant obtains for himself or for any other person any valuable thing or pecuniary advantage. The word “abuse” means misuse i.e., using his position for something for which it is not intended. That abuse may be by “corrupt” or “illegal” means or otherwise than those means. The word “otherwise” has wide connotation and if no limitation is placed on it the words “corrupt”, “illegal” and “otherwise” mentioned in the clause become superfluous for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the proceeding words along with which it appears in the clause that is to say some thing favouring of a dishonest act on his part. The juxtaposition of the word “otherwise” with the words “corrupt” or “illegal” means and the dishonesty implicit in the word “abuse” indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause. Whether he abused his position or not depends upon the facts of each case. (Narayan Nambiar Vs. State of Kerala, AIR 1963 SC 116: 1963 Cr.L.J. 186)
Mere Failure To Follow The Prescribed Rules And Procedures Does Not Amount To An Offence Under Clause (d) Of Section 5 of P.C. Act 1947
Basing on the above observations, the Supreme Court further narrowed the applicability of Clause (d) in the following cases holding that where a Public Servant obtained pecuniary advantage for a third party even by flagrant violation of departmental rules and instructions they are not covered under this clause unless dishonesty is established.
In Union of India and anr. Vs. Major J.S. Khanna and Major I.C. Lala, 1972 Cr.L.J. 849, the allegation against the accused was that they entered into conspiracy to commit criminal misconduct in the discharge of their duties and to cheat the accounts officer attached to the project by manipulating supply orders and thereby obtaining pecuniary advantage for the said firm and that by doing so the accused Lala introduced the name of M/s. Auto Stores, a fictitious firm as one of the approved firms, that bogus quotations in the names of Auto Stores, United Motor Works, Darrang Transport and Rajasthan Motors were brought on record with a view to show that supply orders were placed with Manik Motor Works after making quotation enquiries and obtaining quotations form those firms and that the accused in pursuance of and as part of the said conspiracy paid exorbitant prices to Manik Motor Works and the accused Khanna placed orders before quotations were obtained and that he placed these orders beyond the limit of Rs.1000/- and that both the officers were guilty of placing oral orders without previously obtaining quotations or issuing quotation enquiries and of opening quotations without the presence of another officer as required by the rules and of preparing ante dated quotation etc.
The Supreme Court observed that regarding the allegation that the firm Auto Stores was non-existent firm there was no conclusive evidence to show that the accused officers knew that there did not exist any such firm. As regards the allegation that the goods were purchased after making spot enquiries and without following the usual procedure of calling for quotations, receiving them and opening them in the presence of two officers and then selecting the firm from whom the articles are to be purchased, the Supreme Court held that it was possible that the goods might have been required immediately especially in an emergency like the one which was then prevailing and an officer might find it difficult, if not impossible, to go through the routine procedure possible and desirable in peace time. As regards spot enquiries and purchases it might have been considered expedient depending upon the degree of urgency and no inference of fraud could therefore be drawn from the fact of spot enquiries. As regards the receipt of forged quotations from some of the firms by Major Lala, it was held that Lala might not have been careful or was even grossly negligent but his action could not be said to have been actuated with criminal intent if he received them from someone sending to him forged quotations in the names of the firms. As regards the irregularities in procedure committed by the accused, the Supreme Court held that a procedure might not be in accordance with the rules prescribed for purchases, but that such a breach or procedure did not surely mean fraud or any other criminality.
In Major S.K. Kale Vs. State of Maharashtra, 1977 Cr.LJ 604:AIR 1977 SC 822, the appellant was local purchase officer at an ordnance depot. The allegation against him was that although the supplies were to be made as quickly as possible the appellant made a deliberate departure from the normal procedure which was adopted in the Department as he followed the procedure of covering purchase order basis and placed orders with P.W.2 and caused P.W.2 to earn a profit of 45% and thereby caused wrongful loss to the Army. It was further alleged that a number of firms in Poona were prepared to supply the goods required at a much lesser profit of 10 to 15% and the appellant made no enquiries whatsoever from these firms although some of them were also on the approved list of the Department. The Supreme Court held that it was not alleged that the accused had used any corrupt or illegal means and that it was not shown that the accused accepted any illegal gratification or pecuniary benefit nor violated any statutory rule or order and that the prosecution miserably failed to prove that the appellant caused deliberately wrongful loss to the army by obtaining pecuniary benefit to P.W.2.
In S.P. Bhatnagar and anr. Vs. State of Maharashtra, 1979 Crl.LJ 566, the accused officials of the Indian Oil Corporation were alleged to have shown favour to the accused contractors in regard to a contract of rock cutting and filling work by manipulating the records and by issuing work order with inflated figures and by accepting false bills submitted by the contractor. The Supreme Court held that analysis of the circumstantial evidence did not lead to an unerring certainty that the accused 1 and 2 (the Engineering Manager and Senior Engineer respectively of the Indian Oil Corporation) acted with a dishonest or corrupt motive or abused their position in having the contract in question entrusted to the accused No.4 or that they had a hand in the removal of the level plan and work sheet from the file and substitution by false documents. In the result the Supreme Court allowed the appeals.
In Abdulla Mohammed Pagarkar etc. Vs. State (Union Territory of Goa, Daman, Diu), 1980 Cr.LJ 220, it was alleged that A-1 got the work executed by A/2 though the tender of A/2 was not accepted by the Govt. and A-1 was directed to carry out the work departmentally, that the amount actually spent by A-2 in execution of the work about rupees thirty two thousand whereas A-2 managed to receive with the help of A-1 a sum of more than Rupees four lakhs from the Government and that A-1 had issued false certificates as if the work was carried out departmentally. After going through evidence on record the Supreme Court held that though the work was got executed in flagrant disregard of the relevant rules and even of ordinary norms of procedural behaviour of Government officials and contractors, such disregard did not amount to any of the offences alleged against them. The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts.
In a case of alleged criminal conspiracy between the Engineers of the irrigation department of the Govt. of Andhra Pradesh and contractors alleging large-scale fraud, irregularities and illegalities committed in the execution of Jungle clearance work. The accused engineers and other officials were prosecuted along with the contractor for offences u/s 120-B, 420/34, 377A/34 IPC and section 5(2) read with section 5(1)(d) of P.C. Act, 1947. The trial court convicted them and on appeals the convictions were confirmed by the High Court. On the appeals filed by the accused, the Supreme Court observed that there is no direct evidence available on the record connecting any of the accused persons with the commission of the crimes alleged against them and the entire case hinged on circumstantial evidence and neither the trial court nor the High Court have catalogued the circumstances relied upon by the prosecution against the accused persons except for broad generalizations on the basis of the charges framed against them. In the result, the Supreme Court set aside the convictions of the accused. However, the Supreme Court agreed with the findings recorded by the trial Court and the High Court with regard to the violation of the codal provisions and administrative lapses by the accused officials which justified a departmental enquiry, but in the facts and circumstance of the case directed that no departmental enquiry shall be initiated against them and they shall be reinstated in service with continuity of service for all purpose and breach of codal provisions etc. without any back wages or other monetary benefit for the period they remained out of service – C. Chenga Reddy & Ors. Vs. State of A.P., 1996 Cr.L.J. 3461 (SC).
The Prevention of Corruption Act 1947 was repealed and the Prevention of Corruption Act, 1988 was enacted in its place and it has come into force on 9.9.1988. Clause (d) in Sub-Section (1) Section 13 of this Act, which corresponds to Section 5(1) (d) of the repealed Act of 1947, contains drastic amendments and it reads as follows—
“A Public Servant is said to commit the offence of criminal misconduct-
If he
(i) (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage, or
(ii) (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or
(iii) (iii) While holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest”.
(Note: Clause (iii) was added in the light of the above-mentioned Supreme Court decisions under the repealed Sec.5 (1)(d))
It is clear from a reading of clause (d) that all the three wings of clause (d) of Sec. 13(1) are independent and alternative and disjunctive for constituting the ingredients for the offence under sec. 13(1)(d) as is clear from the use of the word ‘or’ at the end of each clause. Thus under Sec.13 (1) (d) (1) obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would satisfy the requirement of criminal misconduct under Section 13(1)(d) of the Prevention of Corruption Act 1988. On the same reasoning “obtaining a valuable thing or pecuniary advantage merely by abusing official position” as contemplated under Section 13(1)(d)(ii) in itself would satisfy the ingredients of criminal misconduct under Section 13(1)(d) of the Act, 1988. Similarly under 13(1)(d)(iii) obtaining for any person any valuable thing or pecuniary advantage without any public interest is a separate ingredient by itself.
The Supreme Court in the case of Union of India Vs. K.K.Dawan AIR 1993 SC 1478 has mentioned the circumstances under which an inference can be drawn for initiating prosecution for the offences under Clause (iii) of Sec. 13(1)(d) of Prevention of Corruption Act 1988. They are as follows:
i) i) Where the Officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty.
ii) ii) If there is a prima facie material to show recklessness or misconduct in the discharge of his duty;
iii) iii) If he has acted in a manner which is unbecoming of a Government Servant.
iv) iv) If he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
v) v) If he had acted in order to unduly favour a party; and
vi) vi) If he had been actuated by a corrupt motive however small the bribe may be.
The Supreme Court further observed that they are not exhaustive and only illustrative. In this connection, it can be further considered to make use of this Clause (iii) in a wider sense whenever it is found that the evidence is not sufficient to attract the offence under clause (I) and (ii) of Sec.13 (1)(d) of P.C. Act 1988.
Abuse has to be inferred from the following circumstances:
(a) Absence of power; (b) Exceeding jurisdiction, (c) Irrelevant consideration; (d) Leaving out relevant consideration, (e) Mixed consideration; (f) Malafide; (g) Improper performance; (h) Colourable exercise of power; (i) Non-observance of natural justice, and (j) Unreasonableness.
The term “Public Interest” has been explained in several decisions.
1. Public interest in common parlance means an act beneficial to the general public. An action taken in public interest necessarily means an action taken for public purpose. Public interest and public purpose are well known terms. It is impossible to precisely define the expression “public interest” or “public purpose”. The requirements of public interest vary from case to case. Babu Ram Verma Vs. State of U.P., 1971(2) S.L.R. 649 at p.659.
2. A subject may become one of public interest if the public or a section of the public become interested in it. A.M. Kutty Sankaran Nair Vs. P.V. Kumara Nair, 1963 Ker. L.T. 845.
3. The expression is an elusive abstraction,meaning general social welfare or regard for social good and predicating interest of the first moment. As was once pointed out by Frankfurter, J. of the United States Supreme Court, the idea of public interest is a vague, impalpable, but all Controlling consideration. Common good or general welfare of the community is conducive to public interest where it is or can be made to appear to be contributive to the general welfare. Mahajan C.J., in the case of State of Bihar Vs. Kameshwar Singh, AIR 1952 SC 252 indicated that the expression is not capable of a precise definition and has not a rigid meaning and is elastic and takes its colour from the statute in which it occurs, the concept varying with the time and state of society and its needs; S.P. Gupta Others Vs. President of India, AIR 1982 SC 149; A.K. Roy Vs. Union of India AIR 1982 SC 710.
Pecuniary Advantage – Meaning:-
Though every kind of gratification is not pecuniary advantage or valuable thing, pecuniary advantage and valuable thing are included in gratification – (Bhawan Sahai Vs. State, AIR 1960 SC 487 Cr.L.J. 676).
Where an Income-Tax Officer obtains the goods on credit from various firms and failed to repay the amounts, the Supreme Court held that the obtaining of goods on credit cannot be held to amount to obtaining pecuniary advantage unless there was an agreement between the trader and the officer that the later was not expected to pay for the goods – (Delhi Administration Vs. S.K. Khosla, AIR 1971 SC 1480: 1971 Cr.L.J. 1151).
The words “pecuniary advantage” are wide enough to include cases of cash payment. A man when he gets some money in cash, certainly makes a pecuniary gain and, therefore has a pecuniary advantage. Thus Section 5(1)(d) covers the case of a person who obtains money from another as illegal gratification. (Mahfuzali Vs. The State AIR 1953 AII. 110:1953 Cr.L.J. 340).
Causing Wrongful Loss To Government-Offence Faills Under Section 5(1)(d):-
The word ‘Obtains’ in clauses (a) and (b) of Sec.5(1) of the Act in the context of those provisions may mean taking a bribe from a third party but there is no reason why the same meaning should be given to that word used in a different context when that word is comprehensive enough to fit in the scheme of that provision.Nor can it be said that dishonest misappropriation has been provided for in Clause (c) and that other cases of wrongful loss caused to the government by the deceit practiced by a public officer should fall outside the section. There is no reason why, when a comprehensive statute was passed to prevent corruption, this particular category of corruption should have been excluded therefrom because the consequences of such acts are equally harmful to the public as acts of bribery. On a plain reading of the express words used in the clause, every benefit obtained by a public servant for himself, or for any other person by abusing his position as a public servant, falls within the mischief of the said clause.
The accused in order to assign the land to his brother-in-law, under-estimated the value of the said land to confirm with the rules and thereby abused his position as public servant and obtained for him a valuable thing or a pecuniary advantage within the meaning of the said clause and, therefore he is guilty of an offence under sub-section (2) of Section 5 – (Narayan Nambiar Vs. State, 1963 (2) Cri.L.J. 186 SC.
The abuse of position, in order to come within the mischief of sec.5 (1)(d) of the Prevention of Corruption Act, must necessarily be dishonest and it must be proved that the accused caused deliberate loss to the department. The prosecution must also prove affirmatively that by corrupt or illegal means or by abusing his position, the accused obtained any pecuniary advantage for himself or some other person. It is true that dishonest misappropriation or conversion to one’s own use or obtaining any valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing position as a public servant are matters of proof by the prosecution. But when entrustment is proved and failure to account is established when there is a duty to account, the rest is only a matter that follows by way of inference. In one case, boiled rice at a specified rate was not available in open market. It was intended only for sale to cardholders. How it was disposed off and what was the amount received are matters within the exclusive knowledge of the accused and the prosecution may not be sometimes able to prove it. The very fact that rice was purchased in the name of the store and not accounted for indicates corrupt or illegal means or otherwise abusing official position for obtaining valuable thing or pecuniary advantage. Further proof is not required. What is involved in this case is using the names of Stores and the official position of the accused to gain undue advantage. An offence, as defined in Section 5(1)(d), is definitely made out and the respondent is proved, beyond doubt, to have committed an offence punishable Under Section 5(2). That is evidently in furtherance of the common intention also. (State of Kerla Vs. Sebastian Jacob, 1991, Cr.LJ.2636:1991(1) Ker.LJ.447 (Ker.)
“Obtains or attempts to obtain” – meaning of the terms:
In Narayan Nambiar Vs. State of Kerala AIR 1963 sc 1116: 1963(2) Cr.L.J. 186, the meaning of the word ‘obtains’ in Section 5(1)(d) has been explained as follows:
(Please see Section `3’ Supra)
Proof Of The Offence Of Criminal Misconduct U/S.13 (1)(d): -
The accused, Garrison Engineer was trapped when he obtained Rs.1, 000/- as bribe from a contractor. The Supreme Court observed that the Garrison Engineer had public dealings with the complainant (he used to sanction his bills) and his defence of the sale of diamond ring was highly improbable and not trustworthy and confirmed the conviction u/s 5(1)(d) r/w 5(2) P.C. Act and Sec.161 I.P.C. by the courts below (V.K. Chakravarthi Vs. Inspector of Police, Madras, 1995 Crl.L.J. 3618 (SC).
Where the accused, a Special Auditor of Local Funds Accounts, Bombay was prosecuted and convicted for having demanded and accepted bribe for removing the Audit objections in the accounts of the Gram Panchayat, the version of the complainant and the panch witness was found consistent and the tainted money was seized from the bag of the accused. The Supreme Court confirmed the punishment under Sec. 7 & 13(d)(I(ii) r/w 13(2) of the Prevention of Corruption Act, 1988 (M.W. Mohiuddin Vs. State of Maharashtra II (1995) CCR 18 (SC).
In a case, where the accused I.A.S. Officer was party to conspiracy in giving contract in question to a black listed firm at an exorbitant rate, it was held that the involvement of the appellant in the conspiracy is so apparent that it cannot be said that there was any straining of the circumstances to connect the appellant with the crime and that the guilt of the accused was proved beyond doubt. (A. Wati AO vs. State of Manipur, 1996 Crl.L.J. 403 (SC): AIR 1996 SC 361.
The appellant was working as Development Officer in the Life Insurance Corporation of India. Deep Narayan Singh who was co-accused, was also working with LIC as Asst. Branch Manager, Patna. It was alleged by the prosecution that both these accused hatched a criminal conspiracy and in pursuance thereof introduced some false and fake insurance proposals to the Corporation in the name of non-existing persons as also without the knowledge and consent of the insurer in order to earn undue credit and promotions in the LIC on the basis of their inflated business.
It was contended in support of the appeal that there was no loss to the Corporation since the insurance policies were not issued. It was also urged that the appellant did not gain any benefit out of these proposals. It is true that the policies were not issued and therefore, no benefit as such was accrued to the appellant but the LIC had led evidence before the court to show that the Corporation had to spend money on stationery as well as the clearance charges etc. It was in these circumstances, the High Court held that there was a loss, might be negligible, to the Corporation but the fact remains that the appellant sought to take advantage of his inflated business for the year 1974.
“It needs to be emphasized that the appellant being a Development Officer owed a greater responsibility to the LIC as well as to the clients and any such faked or forged proposals bound to harm the reputation of the LIC. It is in these circumstances, the courts below were right in convicting the appellant for the offences for which he was tried”. (Ram Prakash Singh vs. State of Bihar, 1997 (4) Crimes 168 (SC): AIR 1998 SC 296).
A.1 worked as Manager of the Punjab National Bank, Nizamabad Branch, and A.2 was a partner of a Firm and A.4 an employee of A.2 and they were convicted for the offence under section 120B read with Section 467 I.P.C. and Section 591)(d) r/w. Section 5(2) of the Prevention of Corruption Act, 1947. The High Court observed that the evidence of the various bank employees and others connected with the various firms clearly shows the consensus of mind between the accused and that the pay-in-slips, the corresponding entries in the bank registers and the evidence adduced in the case established the guilt of the accused. High Court confirmed the convictions and modified the sentence. On appeal, the Supreme Court confirmed the convictions holding that the evidence of employees of the concerned branch cannot be rejected merely on the ground that they were working under the accused Branch Manager –P.S. Rao Vs. State of A.P., 1994 Cr.L.J. 2102(SC): 1 (1994) CCR 35 (SC): 1994 SCC (Cri) 167.
In a case, Motor Transport contract was entrusted to a person not engaged in the said business at a rate far in excess of the rate quoted by the lowest tenderer. Conspiracy between the officials and the contractor under which the conspirators shared the extra profit was established. Officers were held guilty of the offence under Section 5(2) of the Act of 1947- Ghulam Din Buch etc. Vs. State of Jammu & Kashmir, 1996 (2) ALD Crl. 138 (DB): 1996 Crl.L.J. 2291: 1996 (2) Crimes 29.
The Accused 1,2 and 3 were employed in different capacities in the State Bank of Hyderabad. The Accused Nos. 2 & 3 were officers and accused No.1 was a clerk in the said branch and accused Nos. 4 to 6 were private persons and related to accused No.1. They were prosecuted on the allegations that they were parties to criminal conspiracy to cheat SBH by bringing into existence and using false and forged documents and by falsifying records of accounts including vouchers etc. and by unauthorized transfer of huge amounts from the branch to various other accounts by illegal means and thereby cheated the Bank. The trial court convicted the accused Nos. 2 and 3 for offences under Section 468 read with Section 471 and Sec. 477A of IPC and also under Sec.5 (1)(d) r/w 5(2) of the Prevention of Corruption Act. They were acquitted of charges under Section 420 r/w 120B IPC. On appeal the High Court set aside the convictions of the accused as there was no evidence that the appellants forged any documents nor was there any mens rea in signing the documents by the appellant A1 and he had signed on the documents by mere carelessness. M.V. Subba Laxmi & P. Seeta Ramaiah Vs. The State CBI/SPE, Hyderabad, 1996 (4) Crimes 467 (A.P.).
Prosecution and Investigation agencies have To bestow attention to ensure Prima Facie Case to frame Charges:
Selvi J. Jayalalitha, former Chief Minister of Tamil Nadu and others were prosecuted before the Special Judge, Chennai, in two separate cases for offences under Sec. 169 IPC, Sec. 420 read with Sec. 34 IPC, Sec.420 read with Sec.109 IPC Sec. 409 IPC and Sec.120-B IPC and Sec.13 (2) read with Sec. 13(1)(d) of the P.C. Act 1988. One charge sheet was in respect of sale of two immovable properties of Tamil Nadu Small Industries Corporation, a Tamil Nadu Government Corporation incorporated under Companies Act, 1956 to (1) M/s Jaya Publications, and (2) M/s. Sasi Enterprises and another charge sheet was in respect of purchase of another immovable property belonging to the said Corporation by M/s. Sasi Enterprises. In both these firms, Selvi Jayalalitha was partner. The allegation is that these firms purchased the properties for a price lower than the value fixed according to the guidelines issued by the Government.
In both the cases Selvi Jayalalitha filed petitions before the Special Judge to discharge her but the Court dismissed the petitions. Thereupon she filed revision petitions in the High Court. After hearing elaborate arguments on both sides the High Court allowed the revision petitions and discharged the accused/petitioner. In respect of the Offence U/s 13(1)(d) P.C. Act, the High Court observed: -
“We have stated the various circumstances under which the properties were purchased by M/s Jaya Publication and M/s. Sasi Enterprises. “Public interest” means an act beneficial to the general public. Action taken in public interest necessarily means an action for public purpose. The very facts of the case would go to show that the properties were not purchased by corrupt or illegal means by abusing the official position as Public Servant or by obtaining pecuniary advantage discarding public interest. The purchase was effected in the auction held by TANSI. The right to sell the property was with the said Corporation and the Officers in-charge of the Corporation thought fit to sell the properties in favour of two firms. No material has been produced before me to show that the accused obtained for herself or any other person any valuable thing or pecuniary advantage by abusing her position as public servant or obtained any valuable thing or pecuniary advantage while holding the office as a public servant or obtain any valuable thing or pecuniary advantage without any public interest. Simply for the reason that two of the firms wherein the petitioner was a partner have purchased the properties in the auction would not lead to the presumption of existence of a prima facie case against the accused especially in the absence of any material to that effect. The end cannot justify the means. It is well settled that unless there are grounds, no charge can be framed against the accused.
“Apparently one may feel that being Chief Minister and Minister for Industries she has misused her official position to take pecuniary advantage without any public interest in purchasing the said properties. What is required under criminal law is material to make out a prima facie case against the accused at the time of framing of charge. When such material is lacking, no charge can be framed under Section 13(1)(d) of the Prevention of Corruption Act 1988.
“On the charges under Sec.120-B IPC and Sec.420 IPC the ingredients of these offences are lacking and the question of deception, fraudulent and dishonestly inducing delivery of property did not arise.”
In the result, the High Court set aside the charges framed by the trial Court and discharged the accused. – Selvi J. Jayalalitha Vs. State rep. By Addl. Supdt. Of Police, C.I.D., Chennai, 2001 Crl.L.J. 3074 (Mad): II (2000) CCR 249 (Mad).
Charge U/s. 13(1)(d) must be specific:
A charge under Sec. 13(1)(d) has to be fairly specific in respect of the offence the accused is required to meet in a criminal trial. It would not be enough to say that the accused committed criminal misconduct punishable Under Sec. 13(1) (d) of the Prevention of Corruption Act. The offence of Criminal misconduct is one contemplated in all or any of the four clauses (a) to (d) of Sec. 13(1) of the act and where the accused is sought to be made guilty only under clause (d), it must be specified.
It is therefore clear that this section applies only to criminal misconduct committed by a Public Servant. It is to be noted that in none of the clauses, mere causing loss to the Government is not mentioned as one of the ingredients of the section. In each and every transaction, the Government or the Public Authorities may sustain loss in some form or the other.
The Investigating agencies have to concentrate and investigate as to whether the Public Servant intentionally, dishonestly, fraudulently made any efforts in obtaining pecuniary advantage either for himself or others. The element of dishonesty is implicit in Clauses (I) & (ii) of Sec. 13(1)(d) of P.C. Act 1988.
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