An article on CRIMINAL MISCONDUCT U/S 13(1)(d) OF PREVENTION OF CORRUPTION ACT 1988 was posted on the lawyer club of India in the year 2009 by Mr AEJAZ AHMED.
2. In this article following was brought out :-
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) Where the Officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty.
ii) If there is a prima facie material to show recklessness or misconduct in the discharge of his duty;
iii) If he has acted in a manner which is unbecoming of a Government Servant.
iv) If he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
v) If he had acted in order to unduly favour a party; and
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.
3. Taking clue from this article and similar reference of Union of India Vs. K.K.DawanAIR1993SC1478 on the website https://bharatkalyan97.blogspot.in especially assuming that whatever reference of the Supreme Court decision has been given must be correct, I reported a matter about a public servant for investigations by CBC/CBI public police as per the CVC manual on the lines of the The Supreme Court in the case of Union of India Vs. K.K.Dawan AIR 1993 SC 1478 but subsequently when I could obtain the copy of the judgement through the Internet which was earlier not available, I found that nowhere in the said judgement the circumstances for drawing the inference initiating prosecution for the offences under Clause (iii) of Sec. 13(1)(d) of Prevention of Corruption Act 1988 has been mentioned. In fact these are the circumstances for initiating disciplinary proceedings as per CCS rules.
4. Though Mr AEJAZ AHMED had taken pains to cover the article very well but it is not understood as to how he concluded that these are the circumstances for initiating the prosecution for the offence under clause(iii) of sec 13(1) (d) of prevention of corruption act 1988. I would be extremely grateful for an early reply from the forum, otherwise my position would be taken as quoting a wrong judgement, since in the matter of complaint there were no direct evidence of taking the bribe for the matter of corruption. However, conditions i) to v) of the said judgement are being met.
he link for downloading jugdement(12pages in PDF format) in the case of Union of India Vs. K.K.Dawan AIR1993SC1478 is https://indiankanoon.org/doc/868781/
sorry attachment of judgement in PDF was not possible.
Thanks to Shri Debjyoti burman and Shri Rajendra k Goyal who have rightfully guided me to this forum.
