(Guest)

Whether govt servant can be held guilty under prevention of

Whether govt servant can be held guilty under prevention of corruption Act if there is procedural lapse in his part?

Section 13(1)(d) of the PC Act reads as under:
“13. Criminal misconduct by a public servant

(1) A public servant is said to commit the offence of
criminal misconduct,-

(d) If he,-
(i) by corrupt or illegal means, obtains for himself
or for any other person any valuable thing or
pecuniary advantage; or
(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) while holding office as a public servant, obtains
for any person any valuable thing or pecuniary
advantage without any public interest; or”
The prosecution has sought to cover the case of the
appellant under sub-clause (ii) and not under sub-clause (i) and
sub-clause (iii). Insofar as sub-clause (ii) is concerned, it
stipulates that a public servant is said to commit the offence of
criminal misconduct if he, by abusing his position as a public
servant, obtains for himself or for any other person any valuable
thing or pecuniary advantage. Thus, the ingredients which will be
required to be proved are:
(1) The public servant has abused his position.
(2) By abusing that position, he has obtained for himself or for
any other person any valuable thing or pecuniary advantage.
18) It was not even the case set up by the prosecution that appellant
had taken that money from some person and had obtained any

pecuniary advantage thereby. It was the obligation of the
prosecution to satisfy the aforesaid mandatory ingredients which
could implicate the appellant under the provisions of Section 13(1)
(d)(ii). The attempt of the prosecution was to bring the case
within the fold of clause (ii) alleging that he misused his official
position in issuing the certificate utterly fails as it is not even
alleged in the chargesheet and not even iota of evidence is led as
to what kind of pecuniary advantage was obtained by the
appellant in issuing the said letter.
19) In C. Chenga Reddy & Ors. v. State of A.P., (1996) 10 SCC 193,
this Court held that even when codal violations were established
and it was also proved that there were irregularities committed by
allotting/ awarding the work in violation of circulars, that by itself
was not sufficient to prove that a criminal case was made out. The
Court went on to hold:
“22. On a careful consideration of the material on
the record, we are of the opinion that though the
prosecution has established that the appellants
have committed not only codal violations but also
irregularities by ignoring various circulars and
departmental orders issued from time to time in the
matter of allotment of work of jungle clearance on
nomination basis and have committed
departmental lapse yet, none of the circumstances
relied upon by the prosecution are of any
conclusive nature and all the circumstances put
together do not lead to the irresistible conclusion
that the said circumstances are compatible only

with the hypothesis of the guilt of the appellants
and wholly incompatible with their innocence. In
Abdulla Mohd. Pagarkar v. State (Union Territory of
Goa, Daman and Diu), (1980) 3 SCC 110, under
somewhat similar circumstances this Court opined
that mere disregard of relevant provisions of the
Financial Code as well as ordinary norms of
procedural behaviour of government officials and
contractors, without conclusively establishing,
beyond a reasonable doubt, the guilt of the officials
and contractors concerned, may give rise to a
strong suspicion but that cannot be held to
establish the guilt of the accused. The established
circumstances in this case also do not establish
criminality of the appellants beyond the realm of
suspicion and, in our opinion, the approach of the
trial court and the High Court to the requirements of
proof in relation to a criminal charge was not
proper....”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 131 OF 2007
A. SIVAPRAKASH .....APPELLANT(S)
VERSUS
STATE OF KERALA .....RESPONDENT(S)
Dated:MAY 10, 2016
A.K. SIKRI, J.