Action Merely Contrary To Departmental Norms Not 'Criminal Misconduct' Under PC Act, 'Dishonest Intention' Must: Kerala High Court

“Dishonest intention is sine qua non to attract the offence punishable under Section 13(1)(d) of the Act. Mere conduct and action of the accused contrary to rules and departmental norms would not amount to criminal misconduct by a public servant”, stated Justice K Babu.

The petitioners are accused nos. 1 and 2 in a vigilance case who has approached the Court seeking to quash the FIR and Final Report against them alleging criminal misconduct by public servants under Section 13 of the Prevention of Corruption Act, Section 120 B (punishment for criminal conspiracy) read with 34 (common intention) of IPC. The case was registered by the Vigilance and Anti-Corruption Bureau (VACB) and was pending before the Special Judge.

The allegation was that the petitioners who were working in the Ports were part of a tender assessment team for choosing manual dredging and sale of port sand for the years 2013 and 2014 of various port zones within Kasaragod district accepted and rejected bids for tender with dishonest intention and committed criminal misconduct.

The Counsel for the petitioners argued that there was no evidence to show that they received pecuniary advantage or caused pecuniary loss to the Government. It was argued that it was only irregularities in the tender process.

On analysing Section 13 (1)(d) of the PC Act, the Court observed that government servants can be prosecuted only if it was found that they abused their position and gained pecuniary gain.

It stated that the intent of the provision was not to punish a government servant for an erroneous decision but to punish for corruption. Further, the Court stated the decision/conduct of the public servant must be dishonest, amounting to corruption.

“To attract the term 'abuse' as contained in Section 13(1)(d) of the PC Act, the prosecution has to establish that the official concerned used his position for something it is not intended. The sum and substance of the discussion is that dishonest intention is the gist of the offence under Section 13(1)(d) of the PC Act”, the Court stated.

The Court found that the prosecution allegations would only show certain irregularities in the tender process and do not prime facie prove conspiracy to commit corruption. It stated that the prosecution only stated a violation of rules and departmental or procedural normal in the tender process. It found that there was no prosecution allegation that the petitioners acquired any pecuniary advantage.

Relying upon Zakia Ahsan Jafri v. State of Gujarat (2022), the Court held that every act of omission or commission would not amount to criminal conspiracy. Also, relying upon various Apex Court decisions, the Court stated that dishonest intention was the crux of an offence under the PC Act.

The Court further stated that the FIR and Final Report also do not disclose any offences as alleged against the petitioners.

Accordingly, the case was allowed and it quashed all the proceedings against the petitioners.

Counsel for the petitioners: Advocates Athul Shaji, Anwin John Antony

Counsel for the respondents: Special Government Pleader Rajesh A, Public Prosecutor Rekha

Citation: 2024 LiveLaw (Ker) 57

Case title: C. Surendranath v State of Kerala

Case number: CRL.MC NO. 1071 OF 2022

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