Registration of corruption case not necessary
A prosecution under the Prevention of Corruption Act, 1988 (PCA) need not be initiated In all cases of malfeasance or misfeasance, or wrong administration, or in all cases of loss caused to the government while discharging duty by public servants, says the High court of Kerala in Manimekhala S v State of Kerala.
In corruption case, show loss to govt & gain to the individual
What is required for prosecution of a public servant, who has sustained loss to the government, is to prove that there was loss on one hand, and there was a corresponding gain by the public servant or somebody else with whom the public servant is interested in or with whom he has vicious nexus, on the other.
Recover loss through disciplinary action
On the contrary in such cases of loss to the government alone without any corresponding gain, the government or appropriate authority can initiate disciplinary action against the earring public servant and can recover the loss from him.
That means, just because some loss was caused to the government or public exchequer by the discharge of functions of a public servant he cannot be prosecuted under the act.
A violation of procedure shows no dishonest intention
A mere violation of the procedure in appointing a person to a particular post does not always lead to the inference that the appointee and appointing authority had a dishonest intention in making such appointment.
When a person has worked in a post and when he has received or obtain salary and allowances as remuneration for his work it cannot be found that he has obtained any pecuniary advantage, within the meaning of Section 13 (1) (d) of the Prevention of Corruption Act (PC Act), as existed before its amendment in 2018.
The Section 13(1) (d) of the PC Act, as it existed prior to 2018 amendment, defined the offence of criminal misconduct by a public servant, among others, as follows:
“13(1) A public servant is said to commit the offence of criminal misconduct, –
- d) if he
- by corrupt, or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
- by abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage; or
- while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;”.
Prosecution on when there is criminal misconduct
A public servant can be prosecuted under Section 13 (1) (d) of the PC Act only if he or she has abused his or her position as a public servant and obtained any valuable thing or pecuniary advantage for himself or any other person as provided for in the PC Act as it existed then.
Reference
- Manimekhala S v State of Kerala [2024(20 KHC 37]
