Madras High Court
M/S. V.A.K. Engineering Pvt. Ltd vs State Rep. By on 22 July, 2010
Author: C.T.Selvam
Bench: C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.07.2010 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.O.P.Nos. 14395 and 15996 of 2010 M/s. V.A.K. Engineering Pvt. Ltd., Rep by its Director Mr. Rajesh Malhotra No.326, M.K.N.Road, Alandur, Chennai-600 016 .. Petitioner in both the petitions. Vs State rep. by The Deputy Superintendent of Police Crime Branch CID, Head Quarters Chennai 600 002. .. Respondent in both the petitions. Prayer in Crl.O.P.No.14395/10:Petition filed under section 407 r/w 483 482 Cr.P.C. for a direction to withdraw and transfer the case pending on the file of the Judicial Magistrate, Chengalpet, (Special Court for CBCID cases) as C.C. No.321 of 2002 (C.C.Number assigned by Judicial Magistrate No.II, Poonamallee to the Special Court for prevention of Corruption Act, Chennai. Prayer in Crl.O.P.No.15996/10:Petition filed under Section 482 r/w 483 Cr.P.C. for a direction to the respondent to take appropriate and necessary action for obtaining sanction in accordance with law against the first accused. For Petitioner : Mr.S. Ashok Kumar For Respondent : Mr.A. Saravanan Govt. Advocate(Crl.Side) COMMON ORDER
The petitioner herein is the owner of property on whose representation, the District Collector caused enquiry and preferred a complaint. A case has been registered in Crime No. 4 of 1998 by the CCB against one A.R. Sridharan then Village Administrative Officer(V.A.O), Adambakkam Village and others. On finding substance in the complaint, which informed of the first accused, a V.A.O, who while functioning towards fulfilling the purpose of the Abolition of Ryotwari Act, fabricated false government records, which were within his control to reflect the position that he and his family members were the owners of large extent of lands. A charge sheet has been filed for offences under Sections 120(b), 465, 467, 468 r/w 471, 466 and 420, 167 and 109 IPC. The case is now pending trial in C.C. No. 321 of 2002 on the file of the learned Judicial Magistrate, Poonamallee No.II. The petitioner before us is the defacto complainant and what it is contended on his behalf that the offences committed by the first accused would also attract punishment under the provisions of Prevention of Corruption Act, 1988.
2. Mr. N.R. Elango, Senior Counsel would rely upon the decision of the Hon'ble Apex Court reported in AIR 1963 Supreme Court 1116 (M.Narayanan Nambiar Vs. State of Kerala) wherein, while dealing with a case under the old act (The Prevention of Corruption Act, 1947), the Apex Court in circumstances where a public servant by abusing his position had assigned certain extents of government land without revealing the fact that the assignee was his brother-in-law and had made certain false entries in the relevant records, found offences committed under 5(i)(d) of the Prevention of Corruption Act, 1947. In such case, the Apex Court held as follows:
"....10. The phraseology is very comprehensive. It covers acts done "otherwise" than by corrupt or illegal means by an officer abusing his position. The gist of the offence under this clause 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. "Abuse" means mis-use 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 surplusage, 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 preceding words along with which it appears in the clause, that is to say, something savouring of dishonest act on his part. The contention of the learned counsel that if the clause is widely construed even a recommendation made by a public servant for securing a job for another may come within the clause and that could not have been the intention of the Legislature. But in our view such innocuous acts will not be covered by the said clause. 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; nor can the word 'obtains' be sought in aid to limit the express words of the section. 'Obtain' means acquire or get. If a corrupt officer by the said means obtains a valuable thing or a pecuniary advantage, he can certainly be said to obtain the said thing of a pecuniary advantage; but it is said that in clauses (a) and ) the same word is used, and in the context of those clauses, it can only mean getting from a third party other than the Government and therefore the same meaning must be given to the said word in clause (d). 'Obtains" in clauses (a) and (b) in the context of those provisions may mean taking a bribe from a third party, but there is no reason why the same meaning shall 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 we agree that as dishonest misappropriation has been provided for in clause ), the other cases of wrongful loss caused to the Government by the deceit practised 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, we have no doubt that 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.
(11)Coming to the spirit of the provision, there cannot be two views. As we have expressed earlier, the object of the Act was to make more effective provision for the prevention of bribery and corruption. Bribery means the conferring of benefit by one upon another, in cash or in kind, to procure an illegal or dishonest action in favour of the giver. Corruption includes bribery but has a wider connotation. It may take in the use of all kind of corrupt practices. The Act was brought in to purify public administration. When the Legislature used comprehensive terminology in S.5(1)(d) to achieve the said purpose, it would be appropriate not to limit the content by construction when particularly the spirit of the Statute is in accord with the words used therein.
(12)Two decisions of this Court cited at the Bar indicate that a wide construction was placed by this Court on the provisions of S.5(1)(d) of the Act. In Ram Krishnan V. State of Delhi, 1956 SCR 182: ((S) AIR 1956 SC 476) the appellants were prosecuted for offering bribe to a Railway Officer for hushing up the case against them. In that context, S.5(1)(d) was construed by this Court. At P.188 (of SCR): (at p.478 of AIR), Chandrasekara Ayyar, J. Speaking for the court made the following observations:
"Apart from 'corrupt and illegal means' we have also the words or by otherwise abusing his position as a public servant'. If a man obtains a pecuniary advantage by the abuse of his position, he will be guilty under sub clause (d). Sections 161, 162 and 163 refer to a motive or a reward for doing or forbearing to do something, showing favour or disfavour to any person, or for inducing such conduct by the exercise of personal influence. It is not necessary for an offence under clause (d) to prove all this. It is enough if by abusing his position as a public servant a man obtains for himself any pecuniary advantage, entirely irrespective of motive or reward for showing favour or disfavour".
This Court again in Dhaneshwar Narain Saxena V. Delhi Administration, AIR 1962 SC 195 pointed the wide net cast by this provision in order to put down corruption. There the appellant was an Upper Division Clerk in the office of the Chief Commissioner of Delhi. He knew one Ram Narain who was a fireman serving in Delhi Fire Brigade. The latter sought the assistance of the appellant who had nothing to do with the issuing of licences of fire arms which was done by the office of the Deputy Commissioner, Delhi. The appellant took a bribe in order to get the licence for him. It was argued that as it was not the duty of the appellant to issue licences or do something in connection therewith, he did not commit any offence within the meaning of S.5(1)(d) of the Act. This Court rejected his contention. Sinha C.J., speaking for the Court observed at P.198:
"The legislature advisedly widened the scope of the crime by giving a very wide definition in S.5 with a view to punish those who holding public office and taking advantage of their position obtain any valuable thing or pecuniary advantage".
(13)The observations made by this Court in the above two cases though made in a different context show the comprehensive nature of the said provision. We therefore hold that the accused in order to assign the land to his brother-in-law under-estimated the value of the said land to conform with the rules and thereby abused his position as a public servant and obtained for him a valuable thing or a pecuniary advantage within the meaning of the said clause and therefore is guilty of an offence under Sub-S.(2) thereof."
Learned Senior Counsel pointed out the modification in the definition of criminal misconduct under the Prevention of Corruption Act, 1988 as against that found in the old act and the drastic changes made in Clauses (d) and (e). He would refer this Court to 'A treatise on Anti Corruption Laws in India', by Mr. P.V. Ramakrishna, Sixth Edition 1996, which informs:
"Section 13: (1) Modifications made in the definition of 'Criminal Misconduct' in Prevention of Corruption Act, 1988:- Section 13(1) of the Prevention of Corruption Act, 1988 corresponds to Section 5(1) of the repealed Act, 1947 while Section 13(2) corresponds to Section 5(2) of the repealed Act. Clauses (a) to (e) of Section 13(1) correspond to clauses (a) to (e) of Section 5(1) of the repealed Act. But clauses (d) and (e) of Section 13(1) which correspond to clauses (d) and (e) of the repealed Act contain drastic changes.
The repealed clause (d) of Section 5(1) of prevention of Corruption Act, 1947 was interpreted by the Supreme Court that the element of abuse of office was a necessary ingredient even in cases where corrupt of illegal means are employed by a public servant.
In Narayana Nambiar Vs. State of Kerala, 1963 SC 1116, it is stated that the element of abuse of office was a necessary ingredient even in cases where corrupt or illegal means are employed by a public servant to obtain pecuniary benefits. Since the word 'otherwise' in the second part of Section 5(1)(d) of old Act, has created some confusion in its interpretation, it was considered that the objective of the Legislature should be made quite drastic and clear by amending the section suitably.
Accordingly, the clause (d) has been divided into three independent clauses."
It is in the above context that we would read the provision under Section 13(1)(d)(ii) and (iii), which reads as follows:
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;
3. When so read, it is clear that the offence committed by the first accused also would constitute offences under the Prevention of Corruption Act. Hence, this petition would stand accepted. It is informed that the charges are yet to be framed by the lower Court. In such circumstance, it would be appropriate to direct the respondent to seek and obtain return of the final report filed in C.C. No. 457 of 2010 pending on the file of Judicial Magistrate, Alandur (Old C.C. No. 321 of 2002 on the file of the Judicial Magistrate No.II, Poonamallee), alter the same to reflect the offences attracted under the Prevention of Corruption Act, 1988 and present the same before the Special Court dealing with the Prevention of Corruption Act Cases. The mandatory requirement of sanction shall also be met. The Criminal Original Petitions accordingly are ordered.
ar To
1. The Deputy Superintendent of Police Crime Branch CID, Head Quarters Chennai 600 002.
2. The Public Prosecutor, High Court, Chennai