AI Structured Summary
Not yet generated for this judgment
Judgment
State through S. S. P. Vigilance has filed the revision petition against the order dated 22395, passed by the learned Special Judge,
AntiCorruption, Jammu whereby he discharged the respondents for the commission of offences stated therein. Respondent No. 1 is a Patwari in
the Revenue Department and respondent No. 2 is a private individual.
The relevant facts of the case are that on January 10, 1991, Principal, Dewan Badrinath Vidya Mandir, Jammu namely, Kamal Nanda lodged
written report before the Vigilance Commissioner, J and K, Jammu stating therein that land comprising of Khasra No. 511 min. situated in village
Gole is Government land and adjacent to it is the building of Smt. Susheela Devi, Shishu Mandir Model School. Respondent No. 2 has
encroached upon the said State land. This encroachment was reported to Irrigation Department but no action was taken because of the collusive
attitude of some of the officials of the said department with respondent No. 2. It was also alleged that respondent No. 1 after accepting illegal
gratification of Rs. 5,000/ from respondent No. 2, had made a false entry in the revenue record pertaining to the Girdwari of Kharif 1989 in favour
of the latter who on its basis has derived pecuniary benefit worth lakhs of rupees (present cost of land in question) and raised illegal construction
thereon. On the basis of this report, case was registered under F.I.R. No. 78/92 and final report for the commission of an offence under S. 5(2) of
the Prevention of Corruption Act, 2006 (hereinafter referred to as Act) read with S. 120B, R.P.C. was submitted before the Special Judge
AntiCorruption, Jammu. It is also stated in this report that land measuring 6 marlas comprising of Khasra No. 511 min was owned and possessed
by M/s. Darinder Kumar and Varinder Kumar sons of Smt. Susheela Devi but on the basis of a fake affidavit of their mother said Smt. Susheela
Devi, its transfer was given effect by respondent No. 1 in favour of respondent No. 2 in the revenue record. Respondent No. 2 after making an
encroachment has raised construction thereon as well as encroached upon one marla of land belonging to Irrigation Deptt. The State Government
vide its order No. 88, dated 4894 had also accorded permission for the prosecution of respondent No. 1 and this sanction of prosecution was
accompanying the said final report.
The learned Special Judge AntiCorruption, Jammu vide this impugned order discharged the respondents holding that prima facie no case was
found made out against them. The learned Judge held that a wrong entry in favour of another person made in the revenue record, does not
constitute an offence under S. 5(1)(d) of the Act because it lacks the element of misuse of official position. A ""Girdwari entry"" creates only a fiscal
document which raises rebuttable presumption of possession and is not a conclusive piece of evidence. It was also held that there was no allegation
against respondent No. 1 to have received any reward or gratification and any act which is not in accordance with law, rules or procedure but
done innocently even conferring some benefits upon someone will not fall within the penal dragnet of clause (d) of S. 5 of the Act.
These findings of the learned Judge which have scuttled and thwarted the trial of the case enroute and require close attention and attentive
scrutiny because even the petitioner herein has started showing lackadaisical attitude as the revision petition is not now being pursued. Thus,
without any assistance from either side, the correctness of the impugned order is evaluated. Shorn of its unessentials S. 5(1)(d) of the Act is
reproduced as under :
5(1) : A public servant is said to have committed the offence of criminal misconduct :
a) to c)..........................
d) If he, by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person, any valuable
thing or pecuniary advantage.
Adverting to the facts of the case, it has to be seen at the threshold, whether there was evidence which if unrebutted would have entailed
conviction or was there strong suspicion for the abuse of the official position by respondent No. 1 in conferring undue benefit on respondent No. 2.
The essential ingredients of the offence falling under clause (d) supra are as follows :
That the accused must have used corrupt or illegal means;
He must have abused his position as a public servant; and
Obtained for himself or for any other person any valuable thing or pecuniary advantage.
It is true, that this provision does not exclude mens rea because the words 'by corrupt or illegal means or otherwise' clearly connote that the act
must be dishonest so that wrongful loss has been caused to the complainant. It is not at all necessary for the prosecution to prove that the public
servant concerned had obtained an advantage for himself also before he could be convicted under this Section. All that is necessary is that the
public servant must misuse or abuse his position and thereby either obtain pecuniary advantage for himself or for any other person without
obtaining any advantage for himself. The words 'misuse of his position' obviously mean that if the officer does not act as prudent man, discards all
the norms and statutory rules and is prepared to accommodate a 3rd party and obtains benefit for him, this will certainly amount to a misuse of his
powers, and by his conduct he causes loss of government revenues, his conduct will be dishonest one. The word 'abuse' has not been defined in
the Act. Its ordinary dictionary meaning is ""misuse; makes bad use of; deceive"". All these expressions involve mental endeavour to intentionally
exercise the official power vested in the accused due to his being a public servant in such a way that wrongful loss is caused to one and wrongful
gain to another. For doing so, the public servant has to be actuated either for reward or consideration or for some ulterior motive. The question
whether the Government servant receiving the money had the requisite incriminatory motive is one of the fact.
The scanning of the prosecution record has revealed that the complainant Kamal Nanda in his written complaint dated 10691 addressed to the
Vigilance Commissioner, J. and K., Jammu had specifically made an allegation that respondent No. 1 had accepted illegal gratification of Rs.
5,000/ from respondent No. 2 and made false entry in his favour. It is not understandable how the learned Special Judge AntiCorruption, Jammu
brushed aside this piece of evidence and held that there is no allegation against respondent No. 1 to have received any reward or gratification. In
the final report submitted by the prosecution, it is alleged that transfer of land in question could not be effected in the absence of a registered sale
deed but respondent No. 1 had given effect of transfer of land on the basis of the entries of a fake affidavit. It was further alleged that the deponent
of the said affidavit, Smt. Susheela Devi was not the owner of the land in question but the land was possessed by her sons namely, Darinder
Kumar and Varinder Kumar. These allegations had established that respondent No. 1 had acted not as a prudent man but in disregard to the law
and the established norms with a dominant intention to accommodate respondent No. 2 in getting into the possession of the land. It is not
understandable how the learned Judge took no note of such incriminating evidence and in the absence of any explanation took the view that such
official functioning of respondent No. 1 was innocent.
Be that as it may, the learned Special Judge has also taken the view that there was no meeting of minds between respondent Nos. 1 and 2 to do
illegal acts so there could be no criminal conspiracy. This finding runs contrary to the factual position. There is on the record, an attested true copy
of the death certificate issued by the competent authority of the Georgina Mc Robert Memorial Hospital, Kanpur1 wherein it is stated that Smt.
Susheela Devi had died on 2573. The affidavit in question which was produced by respondent No. 2 before respondent No. 1 was executed and
sworn on 30179 i.e. after five years and eight months from the date of her death. On the basis of this forged affidavit, respondent No. 1 made an
entry in the revenue record in the year 1989 though under law, he was not competent to do so. The presence of this much evidence was sufficient
to prima facie establish the meeting of minds between the respondents to falsify the public record and derive undue benefits. It may be noted that
the Act was brought in by the legislature 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 which is not based on evidence. The learned Special
Judge has formed his opinion by not taking into account the documentary and oral evidence which undoubtedly was of incriminating nature. By
such an exercise, the provisions of the Act have been rendered as redundant and the Act mere as a dead letter on the statute book.
On this view of the matter, the impugned order has been found not only illegal but of perverse nature which has caused the miscarriage of
justice. Accordingly, the revision petition is accepted and the order in question is set aside. The learned Special Judge is directed to frame the
charges against the respondents for the commission of the offences falling under S. 5(2) of the Act read with S. 120B, R.P.C. as well as for
fabrication of the record. Keeping in view the facts of the case, it is expected from the learned Judge that he shall conclude the trial as expeditiously
as possible and preferably within six months from the receipt of the record. The office is directed to send back the record at once.