Courts Update Merely passing a wrong order cannot be a ground...

Merely passing a wrong order cannot be a ground for initiating criminal proceedings under PC Act: Kerala HC

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New Delhi, Jun 11 (ILNS) The Kerala High Court ruled out that Criminal proceedings cannot be initiated against a public servant under the Prevention of corruption Act merely for passing a wrong order, without any material to demonstrate that such order was deliberately passed by him for extraneous considerations or on oblique motives.

The court observed – A bare perusal of Section 13(1)(d)(ii) of the P.C.Act would reveal that a public servant can be prosecuted under that provision, only if he has abused his position as public servant and obtained for himself or for any other person any valuable thing or pecuniary advantage. There is absolutely no whisper in F.I.R that the petitioner obtained any valuable thing or pecuniary advantage by abusing his position as public servant.

The petitioner is the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Eastern Range, Kottayam registered under Section 13(1) (d) (ii) read with 13(2) of the Prevention of Corruption Act, 1988 and under Sections 465, 471 and 120B of the Indian Penal Code by abusing their official position and to get undue pecuniary advantage and caused corresponding loss to the Government.

On the basis of the allegations, the petitioner, who is the second accused in the case, has filed the application under Section 482 of the Code of Criminal Procedure, 1973 for quashing F.I.R registered against him.

The court opined that, the condition precedent to the commencement of investigation is that the F.I.R must disclose, prima facie, that a cognizable offence has been committed. On the other hand, if the F.I.R does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received.

The allegation against the petitioner in F.I.R is that he passed order without verifying the back records and without ascertaining the factual position and therefore, he committed criminal misconduct.

The question is, can a public servant, who acts as quasi judicial authority under a statute, be held criminally liable under the P.C.Act for passing a wrong or illegal order.

The court answers that- “a public servant acting as quasi judicial authority may become criminally liable for obtaining personal gains. But, when he is acting judicially, even if he commits an error and passes an erroneous order, he would be protected from legal action.”

“The legislative intent is not to punish a public servant for any erroneous decision; but to punish him for corruption. Thus, to fall within the four corners of sub-clause (ii) of clause (d) of sub-section (1) of Section 13 of the P.C Act, the decision/conduct of the public servant must be dishonest amounting to corruption.”

Justice R. Narayana Pisharadi while allowing the petition and quashed the F.I.R by invoking the power of the Court under Section 482 of the Code concluded – A person, against whom no offence is disclosed, cannot be put to any harassment by the process of investigation as mentioned in State of West Bengal v. Swapan Kumar Guha : AIR 1982 SC 949 and Where the uncontroverted allegations made in the F.I.R and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, the F.I.R as against him is liable to be quashed in State of Haryana v. Bhajan Lal : AIR 1992 SC 604.

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