TaxTMI 
TaxTMI 
TaxTMI 
2018 (10) TMI 1901
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....tor General of Police. The Additional second respondent herein brought a complaint before the court below alleging nepotism, corruption etc, in the said promotion, and also in the posting of the Director of the VACB, and he sought orders for investigation under the Prevention of Corruption Act (PC Act), 1988. The said complaint was filed as CMP No. 1153 of 2016, and after hearing the complainant, the learned trial Judge forwarded the complaint to the VACB for preliminary enquiry, and also for registering crime, if found necessary. The petitioner herein is the third respondent in the said complaint. The police officer who obtained promotion along with three others, and posted as Director of the VACB, is the first respondent in the complaint. The second respondent in the complaint is the then Chief Minister of Kerala, the 4th respondent is the then Chief Secretary of the Government, and the 5th respondent is the then Additional Chief Secretary of the Government. The complaint itself states that promotion was given to the police officers as decided by the cabinet, but it alleges that it was in prosecution of a design hatched by the then Home Minister with the involvement of the Chief ....
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....thout the necessary elements constituting any offence under the PC Act, or where investigation proceeds baselessly, just to harass a public servant, the Court cannot go helpless, and the Court will have to interfere. In such cases of abuse or misuse of police powers under the PC Act, the High Court will have to interfere to prevent such investigative excess or harassment. 4 . It is not known why one of the four promotees alone is arraigned as accused in the complaint brought by the second respondent. Four police officers were given promotion by the former Government, and the present Government has approved it, and have maintained the promotion given to the police officers. If the promotion granted by the Government is illegal, or if it involves any element of corruption or nepotism, it is not known why the complainant would not question the promotion given to the other three police officers. This conduct itself makes it very much clear that this is a mala fide complaint, or the second respondent brought such a complaint either for personal ends or with some other ulterior motive. If at all, any promotion given by the Government to any public servant involves any illegality or viol....
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....was conducted by an Inspector of the VACB, and he submitted a report, the copy of which I have perused. This Inspector has gone to the extent of deciding on the legality of the promotion and the posting made by the Government. The VACB has no such authority to question the authority of the Government, or to inquire into or report or decide on the administrative matters and decisions of the Government. Expressing serious concern over this report, this Court had observed in the interim order dated 20.02.2017 that the Government would have to think very seriously and decide whether the VACB in Kerala should be allowed to reign over the Government. 6 . I have come across many cases of complaints mechanically forwarded, either for preliminary enquiry or for investigation. Such mechanical orders will have atrocious consequences. How such a complaint brought under the PC Act should be dealt with, has been explained by this Court for the attention of all concerned including special Judges, in Manoj Abraham, IPS v. P.P. Chandrasekharan Nair and Another [2017 (3) KHC 983 : 2017 (3) KL J 896]. Biju Purushothaman v. State of Kerala [2008 (3) KLT 85] has also elaborately explained the differen....
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....under Section 13(1) of the P.C. Act (c) Attempt to commit such substantive offences (d) Abetment of such offences in different forms as explained under the various provisions, etc. 10. For a prosecution under Section 7 or Section 13 of the P.C. Act, there must be a situation where a public servant, or somebody else in whom the public servant is interested, is benefited or has made or accepted some undue advantage or monetary gain, or has received any valuable thing for the performance of duty improperly or dishonestly or has misappropriated money from public funds, or has enriched himself illicitly. In the present case, it is not known, how the promotion given by the Government to four Police Officers involves elements of corruption, or what exactly is the misconduct therein. As already stated, promotion under the service laws is the prerogative of the Government and it is well settled that seniority alone shall not be the criterion for promotion in any sector. If the process involves any illegality or violation of the provisions of the law governing service, the aggrieved person can very well challenge it before the appropriate Forum. Now we have Tribunals established under t....
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....r 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 e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.- For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. 12. Thus prior to the amendment, the Sub-section (1) contained five clauses, and clause (d) dealt with three separate instances of corruption described in the Sub Clauses (i) to (iii). Now after the 2018 amendment, Section 13(1) of the PC Act stands as follows; "(1) A public servant i....
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....t instances of criminal misconduct, and those instances are, in a modified form, now covered by Section 7 which has undergone a thorough change. Section 7 of the PC Act, 1988 stood as follows before the amendment; "7. Public servant taking gratification other than legal remuneration in respect of an official act.- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall als....
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....on, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Illustration.- A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section. Explanation 2.-For the purpose of this section,- (i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means; (ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party." 16. Before the amendment of 2018 accepting or agreeing to accept or obtaining any gratification other than legal remuneration, as a motive or reward for doing or for....
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....nt has discharged the duty improperly or not, he can be prosecuted, if he has obtained or attempted to obtain any undue advantage for the discharge of his official duty. The explanation 2 to the present Section 7 explains that a public servant who has obtained or accepted or has attempted to obtain an undue advantage for himself or another person by abusing his position as a public servant or by using his personal influence over another public servant, or by any other corrupt or illegal means, is liable for prosecution under Section 7, and Clause (ii) to the explanation 2 provides that it shall be immaterial whether the public servant has accepted or obtained or attempted to obtain such undue advantage directly or through a third party. 18. A reading of Section 7 after the amendment shows that the law has now widened its scope to deal with different instances of corruption or acceptance of undue advantage for the performance of public functions improperly or dishonestly, and any public servant who has accepted or obtained such undue advantage even for another person, directly or through a third party, or on an offer to influence some other public servant under his control or whom ....
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....and re-drafted. I feel it not necessary to go in detail into those sections. For dealing with the main instances of corruption or acceptance of undue advantage or illegal gratification, it would suffice that the changes introduced in the former Sections 7 and 13 by the amendment are discussed in detail. Section 20 of the PC Act dealing with presumption in cases of acceptance of illegal gratification also now stands re-drafted. The original Section 24 granting protection to persons who offered or agreed to offer any gratification or any valuable thing to public servants stands now deleted. 21. The Amendment Act of 2018 has introduced a new Section 17A in the PC Act with the object of giving protection to public servants who have done or ordered or approved administrative actions or have taken decisions as public servants in the bona fide discharge of their official functions. This amendment in the form of a new Section was necessitated in the unfortunate circumstance where even honest public servants who discharged their functions without any mala fide or malpractice or dishonesty happened to be indiscreetly prosecuted under the P.C. Act by different prosecuting agencies simply on ....
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....r official act was done by the public servant, or whether the malfeasance or malpractice alleged against the public servant would involve any element of dishonesty or illegality or impropriety by way of accepting any undue advantage. Section 19 of the Act dealing with previous sanction for prosecution has undergone some changes by the amendment of 2018, I feel it not necessary to go into those aspects in this proceeding. 25. As discussed in the foregoing paragraphs, it can be seen, on an examination of the various provisions of the PC Act, as it stands now amended by the Amendment Act of 2018, that law is now definite and specific as to how and when a public servant can be prosecuted on the allegations of corruption, what all instances of misconduct and corruption are covered by the law after the amendment, in what all circumstances a prosecution is possible against a public servant, and what is the protection granted to public servants under the law from baseless, vexatious and indiscreet prosecutions. 26. On a reading of the complaint in this case, I do not find any instance of misconduct or corruption, as defined under Section 13(1) of the P.C. Act as it stood prior to the Ame....
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....on is purely an administrative matter of the Government, and that the issue does not involve elements of corruption or misconduct for a prosecution under the P.C. Act. Thus, the VACB has fairly conceded now that there is no scope for investigation in this case under the P.C. Act. 29. On a perusal of the entire materials including the complaint made by the 2nd respondent before the court below, I find that the 2nd respondent brought the complaint without any basis, or just to harass the public servants, or for publicity, or to make gain out of it. The impugned order is liable to be set aside, and the complaint brought by the 2nd respondent without any basis, or maliciously, is liable to be rejected. 30. When the Court came across some instances of wrong exercise of powers by the VACB under the P.C. Act, 1988, the court thought of issuing some guidelines to the VACB and the Police regarding the nature and the scope of the functions of the VACB and the Police under the P.C. Act, 1988. This Court also felt the absolute necessity of a legislation to prevent vexatious litigations and criminal prosecutions. Accordingly, the Government was directed to report whether the Government has th....
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....ions. This Court hopes and expects that the Government of Kerala would take the matter very seriously and take necessary steps immediately to bring such a legislation. 32. Finding the necessity of some guidelines to the VACB and the Police Department generally in the matter of discharge of functions under the P.C. Act, this Court directed the parties in this proceeding including the Government to furnish the draft guidelines, to help the court in formulating the guidelines. Nobody has furnished the required draft guidelines. Even while stressing the necessity of a law to prevent vexatious litigations, this Court would urge and direct the whole Police Department including the VACB that whenever any instance of corruption or criminal misconduct or any sort of malpractice involving elements of corruption is brought to notice by complaint or otherwise, strict measures and actions shall be taken, and the persons involved in such acts and activities of corruption or misconduct must definitely be prosecuted. There shall not be any sort of compromise when such elements of corruption or misconduct, or any malpractice involving such corruption is noticed or revealed. 33. Though the parties....
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....m, and the Deputy Superintendent of Police submitted an explanation that the VACB has realised the very serious mistake committed in registering such a crime, and that steps have been taken to refer the crime. Accepting that report, the matter was disposed of by this Court on 6.4.2017. The legislature can pass any law as authorised by the Constitution, and it will definitely be a product of the majority decision of the House or the wisdom of the House. If at all, such a legislation involves anything for interference on the grounds accepted by the Constitution of India, the constitutional courts will look into the matter, examine the law, and take necessary decision. Such areas cannot be intruded into by the investigating agencies. Our set up is a democracy governed by rule of law, and governance is made by a Government elected by the people. The investigating agencies cannot in any circumstance probe into the propriety of the law passed by the legislature. 36. In the instant case, what is involved is the administrative decision of the Government to grant promotion to some Police Officers. In any area where administrative decision or policy decision of the Government is involved, t....
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....ed loss to the Government or the Public Exchequer, but whether there has been any vicious link or nexus between him and the person benefited, and whether the public servant caused such benefit to the other person with the knowledge that his act will or may cause such benefit and cause loss to the Government or the Public Exchequer. In short, what is required for a prosecution is not simply that the Government or any Department of the Government or any Public body has sustained any loss. While proving such loss, the prosecution will have also to prove that a corresponding gain was made by the public servant or somebody else in whom he is interested or with whom he has vicious nexus. Just because some loss was caused to the Government or the Public Exchequer or to any public sector undertaking or corporation or public body, by the discharge of functions of a public servant, he cannot be prosecuted under the P.C. Act. In short, mere instances of malfeasance or wrong administration or wrong discharge of functions or dereliction of duty will not cause a prosecution under the P.C. Act. 39. The VACB will have to make enquiry into different allegations of corruption or misconduct or malfe....
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.... any special privilege or prerogative in the matter of investigations because every investigation is governed by the Code of Criminal Procedure, which is applicable to all prosecuting agencies. Of course, there is the Vigilance Manual for internal guidance. This Vigilance Manual does not have the force of law, and it will not get legal sanctity because it is only a Manual for the guidance of the officers of the VACB in the discharge of their functions. Any provision of the Manual against the provisions of the law of the land like the Code of Criminal Procedure, or the Indian Evidence Act, will not have any value or application in the matter of investigation or prosecution. This shall be borne-in-mind by the officers of the VACB. 41. In the foregoing paragraphs, this Court has discussed the scope of the functions of the VACB in Kerala and the Province wherein they are expected to discharge their functions. Investigation of corruption cases or cases under the P.C. Act must be seriously dealt with as a specialised area where high competence, caliber, integrity and honesty of the officers is required. In the investigation in corruption cases, the concept of participative supervision m....