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TMI Blog2018 (10) TMI 1901X X X X Extracts X X X X X X X X Extracts X X X X ..... volved is only wrong administration or discharge of functions without obtaining or causing any undue advantage or monetary benefit, what is possible is only disciplinary action and departmental proceedings including steps to recover the amount of loss caused by the public servant. The VACB is not expected to make recommendations to the Government in the form of directions as is done in this case by the Inspector of the VACB in his report of preliminary enquiry. Whenever the necessity of disciplinary action including recovery of money is felt by the VACB on enquiry or investigation, this fact can only be reported to the Government, but the VACB cannot make recommendatory directions to the Government as was done in this case by the Inspector. Legislation is a sovereign function. Executive actions of the Government in carrying out the decisions of the Cabinet will also come within the purview of sovereign functions. This Court hopes that in future, the Police Officers and also the officers of the VACB will follow the guidelines in the discharge of their official functions - Petition disposed off. - OP (Crl.) No. 83 of 2017 - - - Dated:- 15-10-2018 - P. Ubaid, J. For Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, four police officers including the first respondent were granted promotion in violation of the provisions of the law relating to the promotion of IPS officers, the complaint would allege. 2. Finding a prima facie case of wrong exercise of jurisdiction by the court below in forwarding the complaint for enquiry or investigation, this original petition was admitted to files. The complainant in the trial court was later impleaded as the additional second respondent. He filed a formal statement of objection, but later he did not turn up to contest the matter. 3. The scope and the extent of the jurisdiction of the High Court under Article 227 of the Constitution of India has undergone thorough change, and the Honourable Supreme Court has settled the position that the High Court can interfere under Article 227 of the Constitution of India, and correct the jurisdictional errors committed by the subordinate courts and tribunals. When any instance of wrong exercise of jurisdiction, or error of jurisdiction in the exercise of the powers of any subordinate court or tribunal is brought to the notice of the High Court, such errors can very well be corrected, and orders passed without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Government, or by any officer or agency under the Government, cannot be a subject matter of litigation or enquiry or investigation at the instance of members of the public. If any person or any public servant is aggrieved by such promotion, it must be his concern to challenge it appropriately before the competent forum. Promotion of public servants is a prerogative of the Government, or the authority competent to give promotion, and if the promotion involves any illegality or violation of the procedure established by law, it can be subjected to examination and adjudication only by the competent judicial forum. The remedy is not an investigation or prosecution under the PC Act. The complaint made by the second respondent does not disclose what exactly is the element of corruption he would allege in the promotion process or who exactly committed criminal misconduct in the promotion process, or in the posting of the first respondent as Director of the VACB. Of course, in the matter of posting of the State Police Chief, or the Director of the VACB, or any other responsible officer of high rank the Government can pick and choose, without, of course, violating the provisions of law or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence punishable under the P.C. Act. In Manoj Abraham's case cited supra, this Court has explained how or when a cognizable offence is disclosed, for the purpose of registering crime under Section 154 Cr.P.C. A complaint forwarded from the court under Section 156(3) Cr.P.C., will not have any special sanctity. Once such a complaint is forwarded, it goes off the files of the court, and once received at the Station House Office, it is as good as a complaint directly received there. In certain cases enumerated by the Hon'ble Supreme Court in Lalitha Kumary's case [2013 (4) KHC 552 : AIR 2014 SC 187 : 2014 (2) KLT 632], a preliminary enquiry will have to be made to find out whether a cognizable offence is disclosed, or whether there are materials for registering a crime and for investigation. 8. This case is a typical case of abuse of legal process and judicial process. This sort of complaints will have to be dealt with appropriately. A prosecution brought or initiated under the P.C. Act cannot be lightly or casually approached by courts. It is a serious prosecution having serious consequences. It is quite unlike a prosecution alleging assault or cheating or rioting o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urts, and the legality or propriety of the promotions granted by the Government to public servants cannot be enquired into or investigated by the Police machinery. If that is allowed, it will have serious and atrocious consequences in our democracy governed by rule of law. 11. The Prevention of Corruption Act, 1988 has undergone a thorough change in 2018. The Prevention of Corruption (Amendment) Act of 2018 which came into force on 26.07.2018 has introduced so many changes in the law including some changes to protect the interests of public servants, or to protect them from unnecessary and baseless prosecutions. The very concept of illegal gratification or pecuniary advantage has undergone a thorough change, and now, by the amendment, any undue advantage derived by the public servant for himself or somebody else will come under the purview of corruption. Before the amendment of 2018, Section 13 of the PC Act of 1988 with the Sub-section (1) stood as follows; 13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct,- (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under his control as a public servant or allows any other person so to do; or b) if he intentionally enriches himself illicitly during the period of his office. Explanation 1.-A person shall be presumed to have intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for. Explanation 2.- The expression known sources of income means income received from any lawful sources. 13. The practical effect of the amendment is that clauses (a) and (b) of Sub-section (1) of Section 13 dealing with habitually accepting or obtaining gratification have been taken away, and such instances of public servants habitually committing offences, or habitually involving in acts of corruption are now dealt with under Section 14 of the Act as it stands amended by the 2018 amendment. The former Clause (c) of Sub-section (1) of Section 13 of the Act is now Clause (a), and the former clause (e) of Sub-section (1) of Section 13 is now Clause (b) after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section. (b) Gratification . The word gratification is not restricted to pecuniary gratifications or to gratifications estimable in money. c) Legal remuneration . The words legal remuneration are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept. d) A motive or reward for doing . A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section. 15. But now Section 7 of the Act stands re-drafted by the 2018 amendment, and it stands as follows; 7. Offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for rendering or attempting to render any service or disservice to any person was punishable as an act of corruption. Clause (b) to the explanation to Section 7 before the amendment clarified that gratification is not restricted to pecuniary gratifications or to gratifications estimable in money, and the Clause (c) provided that legal remuneration is not restricted to remuneration which a public servant can lawfully demand, but includes all remuneration which he is permitted, by the Government or the organisation which he serves to accept. Clause (d) contained in the explanation prior to the amendment provided that if any public servant has received gratification as a motive or reward for doing something which he does not intend to do or for doing something which he is not in a position to do, or has not done, that will also be treated as acceptance of gratification as a motive or reward for doing something as meant under Section 7. 17. Now let us see what is the change brought about by the 2018 amendment. After the amendment, Section 7 has three clauses. Clause (a) deals with obtaining or accepting or attempting to obtain an undue advantage, with the intention to perform or ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2018, there was some confusion, and some issues came up for judicial adjudication as to whether the said Sub Clause (iii) deals with any offence requiring mens rea. This Court had come across many instances of public servants being baselessly and unnecessarily prosecuted on some allegations under the former Sub Clause (iii) that by his conduct as a public servant, or by the discharge of functions as a public servant, he has caused loss to the Government, or he has caused advantage or profits to some other person. The present amendment has taken away the Clause (d) with the sub clauses, and the different instances formerly covered by Clause (d), are now, in a modified form, brought under the present Section 7 which contains three clauses to deal with different instances of corrupt acts of public servants. 20. The Amendment Act has also introduced Clause (d) to Section 2 of the Act to define undue advantage , and the present definition is that any gratification whatever, other than legal remuneration can be treated as undue advantage. The Amendment Act has also added an explanation to the Clause (d) that the word gratification is not limited to pecuniary gratifications or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due benefit or gain to any other person with the knowledge or connivance of the public servant. There were occasions where our public servants and even administrators, hesitated or feared to do their functions boldly and confidently due to fear of being prosecuted unnecessarily for political or personal ends, or for nothing done by them dishonestly. 22. The present Section 17A introduced by the amendment provides that no police officer shall conduct any enquiry or investigation into any offence alleged to have been committed by a public servant under the PC Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in the discharge of his official functions or duties, without the previous approval of the officer or the authority concerned. Clause (a) provides that in the case of a public servant who is or was employed, in connection with the affairs of the union at the time when the offence was alleged to have been committed, the previous approval of the Central Government shall be obtained. Clause (b) provides that in the case of a public servant who is or was employed, in connection with the affairs of a State, at the time w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dishonestly or illegally or unlawfully with the object of causing some sort of monetary gain or pecuniary advantage, to any person. The Government collectively took a decision to grant promotion to four Police Officers, and this was approved and maintained by the successor Government also. There is no reason why the 2nd respondent filed complaint against the Chief Minister and the Home Minister when the promotion was granted collectively by the Cabinet. Anyway, whatever be the circumstance of promotion, or if at all, there was any irregularity in the promotion granted by the Government, it is a collective decision taken by the Government in the exercise of the prerogative under the law, and if anybody has grievance as regards the promotion given to any officer, the right remedy is to approach the competent judicial Forum. It cannot be the subject matter of an investigation under the P.C. Act. 27. At the initial stage of this proceeding, the VACB maintained a stand that there was something to investigate. But later, the VACB submitted a statement of objection that there is no scope at all for a prosecution in this case under the P.C. Act and that what is involved is only some irr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment has not so far thought of making such a law though report was filed that appropriate measures would be taken. We do not have any uniform law in Kerala to prevent vexatious litigations. Though a Bill was introduced in 1994 as the Kerala Vexatious Litigation (Prevention) Bill, it unfortunately lapsed. Now it is very easy for the Government to bring such a legislation as already proposed in 1994, with necessary amendments and modifications, if required, in the changed circumstances. Presently we have only the Vexatious Litigation (Prevention) Act 1949 (Madras) which will have limited application in Kerala. The said Act will not apply to the parts of Kerala other than the erstwhile Malabar area. In Advocate General v. T.A. Rajendran [1998 (1) KLT 305], a Division Bench of this Court led by the then Hon'ble Chief Justice held thus in paragraph 8 of the judgment. Law to prevent vexatious litigation has been in force in the State of Kerala only in the Malabar area for the last 31 years. After the new State of Kerala came into existence, no steps have been taken so far to enact a law to prevent vexatious litigation applicable throughout the State. Prevention of vexatious l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter. 34. As already observed, the VACB or the Police can step in for necessary action including investigation under the P.C. Act, only when a definite offence under the P.C. Act is revealed and disclosed, and the allegations of such corruption or misconduct are substantiated by materials. The VACB or the Police and also the Special Courts functioning under the P.C. Act must be able to identify false or vexatious complaints brought for publicity or for personal gain, and genuine complaints brought for honest prosecution on the basis of definite materials substantiating the allegations of corruption and misconduct. The VACB and the Police are cautioned that if any unnecessary enquiry or investigation proceeds on baseless complaints, that will cause harassment to the public servants, and it will have atrocious consequences causing blemish on the entire career of public servants. 35. There was an occasion where the Annual Budget and the Finance Bill passed by our Legislature was challenged by way of complaint before the VACB. It is quite unfortunate and alarming that without understanding the scope of an enquiry or investigation as regards the Budget or the Finance Bill pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, or against public policy, or against the society at large, we have a constitutional set up to examine such things, take decisions and correct the wrong decisions or actions. Anyway, such policy decisions or administrative decisions or administrative matters cannot be subjected to enquiry or investigation under the P.C. Act, unless it involves any individual case of corruption or criminal misconduct as defined under the P.C. Act. In individual instances of administrative actions by public servants the Police machinery can conduct enquiry or investigation under the P.C. Act subject to the new Section 17A, if the act or conduct of the public servants involves elements of corruption or misconduct as defined under the law. 37. It appears that there is a misconception among the officers of the VACB and the Police that loss caused to the Government or the Public Exchequer by a public servant in the discharge of his official functions is a ground for proceeding against him under the P.C. Act. This misconception is the result of the wrong understanding of the scope and object of the Prevention of Corruption Act. For a prosecution against a public servant on the allegation of corruptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... malfeasance or misfeasance or wrong discharge of duty by public servants. In such instances where the VACB could not detect any instance of corruption or criminal misconduct as defined and meant under the law, the VACB can report the facts to the Government or the concerned authority, and on getting such report, the Government or the concerned authority can initiate disciplinary action against the erring public servant. In all cases of malfeasance or misfeasance or wrong administration, or in all cases of loss caused to the Government by the discharge of duty by public servants, a prosecution under the P.C. Act cannot be initiated. If it is only a case of dereliction of duty or wrong administration or malfeasance or misfeasance detected on enquiry, only disciplinary action can be initiated against the erring public servant, and if any public servant has caused any wrongful loss to the Government by the discharge of his official functions improperly or wrongfully, or as the result of wrong administration or malfeasance or misfeasance, no doubt, the Government or the appropriate authority can recover the loss from him, and also initiate disciplinary action against him. 40. As alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers. Crimes can be registered and investigation can be made under the P.C. Act only in cases where elements of corruption or misconduct are revealed or disclosed. If what is involved is only wrong administration or discharge of functions without obtaining or causing any undue advantage or monetary benefit, what is possible is only disciplinary action and departmental proceedings including steps to recover the amount of loss caused by the public servant. The VACB is not expected to make recommendations to the Government in the form of directions as is done in this case by the Inspector of the VACB in his report of preliminary enquiry. Whenever the necessity of disciplinary action including recovery of money is felt by the VACB on enquiry or investigation, this fact can only be reported to the Government, but the VACB cannot make recommendatory directions to the Government as was done in this case by the Inspector. Legislation is a sovereign function. Executive actions of the Government in carrying out the decisions of the Cabinet will also come within the purview of sovereign functions. Such functions cannot be the subject matter of enquiry or investigation under the P.C. Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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