Shiv Datt Misra v. State of U. P. — 1979 DIGILAW 133 (ALL)

JUDGMENT G.D.Srivastava 1. These petitions have been moved by Shiv Datt Misra against the State of U. P. under the provisions of Section 482 CrPC. In all these petitions, the prayer is for quashing different criminal proceedings started against the petitioner under Section 5 (1) (d) of the Prevention of Corruption Act. In all these petitions, Shri Ashwani Kumar, who was the Regional Transport Authority, during the relevant period, has also been impleaded as opposite party no. 2, but he has not filed any counter-affidavit to any of the petitions. The petitioner is holding the post of Regional Transport Officer in the Transport Department of the U.P. Government and during the relevant period, viz., 15-11-1971 to 31-12-1973, he was posted at Kanpur. In all the petitions, various facts and circumstances have been narrated in order to show that for certain reasons the petitioner had incurred the displeasure of certain high ups and that these prosecutions have been started against him on account of personal grudge and to take revenge. In other words, the allegation is that these prosecutions are totally unfounded and have been started only by way of revenge. It does not appear necessary to refer to those facts and circumstances on the basis of which the petitioner has drawn an inference that he had incurred the displeasure of certain higher authorities The relevant facts may, however, be stated thus. 2. There existed a route connecting Kanpur and Auraiya via Pukhrayan and Sikandara, which was a nationalised route. On 24-2 -1972, it was decided to open another route between these two towns via Akbarpur and Bihar Ghat. In a meeting held at Kanpur by the Regional Transport Authority, it was decided that ten permanent stage carriage permits would be given for this new route. Five of these permanent permits were granted to private operators and the remaining five to the U. P. Govt. Roadways. But the U. P. Government Roadways did not obtain those permits and, therefore, those five permits were also granted to private persons. In his capacity as Regional Transport Officer, the petitioner submitted a note to the Regional Transport Authority, referring to the meeting held on 24-2-1972. In this note he said that the U.P. Government Roadways had not obtained permits. He also said in this note that some M. L. As. In his capacity as Regional Transport Officer, the petitioner submitted a note to the Regional Transport Authority, referring to the meeting held on 24-2-1972. In this note he said that the U.P. Government Roadways had not obtained permits. He also said in this note that some M. L. As. had approached him with an allegation that there was a pressing need for more vehicles on this route because of the marriage season and because of the general need of passengers. In this note it was suggested that if the Regional Transport Authority approved, temporary permits may be given. Along with this note a list of nine applicants was attached who had applied for temporary permits. On this note, the Regional Transport Authority wrote down his endorsement to the effect that the U.P. Government Roadways may be asked to take the five permits granted to them and if they failed to do so within one month, these five permits may also be given to private parties. Thereafter, the applicant issued temporary permits to those nine applicants and he referred to one ruling of this Court and another ruling of the Supreme Court in support of this order of issuing temporary permits under the provisions of Section 62 of the U. P. Motor Vehicles Act. Now the simple charge against the petitioner in all the cases is that he had issued these nine temporary permits in clear violation of the aforesaid Section 62 and he had, therefore, conferred benefit on some persons illegally and was, therefore, liable to be prosecuted for corruption under the aforesaid section of the Prevention of Corruption Act. I need not repeat that the contention on behalf of the applicant, however, is that he had issued these temporary permits, firstly, with the approval of his superior officer, viz., the Regional Transport Authority and, secondly, in accordance with the view expressed by this Court and the Supreme Court and that he had not contravened the provisions of Section 62 of the Act. This is in brief the case set up by each party and, to my mind, the other facts and circumstances mentioned in the petition and in the counter-affidavit and the rejoinder- affidavit are either irrelevant or unnecessary for the decision of these cases. This is in brief the case set up by each party and, to my mind, the other facts and circumstances mentioned in the petition and in the counter-affidavit and the rejoinder- affidavit are either irrelevant or unnecessary for the decision of these cases. I may point out at the very outset that in all the petitions, the facts are similar and the same point of law and fact are involved. All these petitions can, therefore, be disposed off by a common judgment. I propose to consider these cases in two aspects. Firstly, it has to be seen whether the petitioner has really contravened the provisions of Section 62 and the second aspect would be whether merely by showing that the petitioner has contravened any provision of law, it can be said that a prima facie case of corruption against the petitioner is made out so as to warrant his prosecution under the said provision of the Prevention of Corruption Act. 3. The rule of law, which is said to have be in contravened by the petitioner may be stated as follows :- "Provided that a temporary permit under this section shall, in no case, be granted in respect of any route or area specified in an application for the grant of a new permit under Section 46 or Section 54 during the pendency of the application." 4. It is needless to say that section 62 authorises the Regional Transport Authority to grant temporary permits for a limited period not exceeding four months for the convenience of passengers on special occasions, such as fairs and religious gatherings, or seasonal business or to meet a particular temporary need. The proviso, which has been quoted above, however, prohibits granting of such temporary permits, if any application for grant of a permanent permit for that route is pending. Now the contention on behalf of the State is that applications for permanent permits for this route were pending and inspite of those pending applications, the petitioner issued the temporary permits to nine persons and, therefore, he had clearly violated the aforesaid provision of law. The ruling of this Court behind which the applicant has taken shelter is reported as Turabuddin Ahmad v. Commissioner, Meerut Division, AIR 1972 All. 146. The ruling of this Court behind which the applicant has taken shelter is reported as Turabuddin Ahmad v. Commissioner, Meerut Division, AIR 1972 All. 146. The learned Judge, after examining the scheme of the Act with regard to the granting of permits, held that this proviso does not come into play unless the vacancy is declared, applications are made and are pending for grant of permanent stage carriage permits. The learned Judge went on to observe that from the provisions contained in Sections 46, 47, 48 and 57, It was clear that the applications made suo motu for the grant of permits, without there being any vacancy on the route, are no applications under Section 46 of the Act within the meaning of the first proviso of Section 62 of the Act. In this reported case also, It was decided to open a new route between Muzaffarnagar and Budhana. Although the strength was fixed and the route was classified, the Regional Transport Authority had not so far invited any application for grant of permits on the route in question. A number of applications had, however, been received for the grant of temporary permits. The learned counsel for the State argued that this ruling did not apply because this new route between Kanpur and Auriya had been notified and the number of vacancies had been fixed. To my mind, the mere fact that the route had been notified and the vacancies had been fixed will not make any difference. The relevant question will be whether the vacancies had been declared and whether any applications had been invited or not. As has been seen above. It was decided in the meeting of 24-2-1972 that ten permits would be issued, five to private parties and five to U. P. Government Roadways. But because the U. P. Government Roadways did not obtain any permits, the Regional Transport Authority is alleged to have ordered on 6-5-1972 that if within one month the U. P. Government Roadways did not obtain the five permits, they too may be given to private operators. It cannot, therefore, be said that when these temporary permits were issued by the petitioner, any vacancy was existing. At any rate, there is nothing on the record to show that the Regional Transport Authority had invited any applications. It cannot, therefore, be said that when these temporary permits were issued by the petitioner, any vacancy was existing. At any rate, there is nothing on the record to show that the Regional Transport Authority had invited any applications. On the contrary, annexure I to the counter affidavit makes it clear that a number of uninvited applications had been received. As has been observed in the aforesaid case, the purpose of this proviso is to prevent abuse of power by the Regional Transport Authority in granting temporary permits. If applications for permanent permits are pending in respect of certain vacancy, granting of temporary permits during the pendency of such applications is bound to give unfair advantage to one party. The Regional Transport Authority may, in certain cases, go on postponing consideration of applications for permanent permits and may continue to grant temporary permits to some. Keeping in view these provisions, the learned Judge observed that this provision of law will be attracted only when there is a vacancy and applications for permanent permits have been invited and are pending. I need not repeat that in the instant case there is nothing to show that applications had been invited. On the contrary, It appears that only some uninvited applications were pending. Thus, on the material on record, IT is not possible to conclude that these temporary permits had been granted in contravention of Section 62 of the Motor Vehicles Act. Reference may also be made to annexure 12 of the counter-affidavit and in para 5 of this annexure 12. It is clearly mentioned that the Regional Transport Authority, Kanpur, had not invited any application for permanent stage carriage permits on this route and that only some uninvited applications had been received for granting of permanent permits on this route. Thus, there seems to be no doubt about the fact that applications for permanent permits had not been invited and had not been received in pursuance of any invitation. I, therefore, fail to see why the principle laid down in the aforesaid ruling should not be applicable to the instant case. Thus, there seems to be no doubt about the fact that applications for permanent permits had not been invited and had not been received in pursuance of any invitation. I, therefore, fail to see why the principle laid down in the aforesaid ruling should not be applicable to the instant case. The whole structure of the prosecution in all these cases seems to stand on the sole foundation that the petitioner did an act in violation of a provision of law and thus went out of his way to confer illegal benefit on certain private parties and thereby he committed an offence punishable under the said provision of the Prevention of Corruption Act. Obviously, if the sole foundation is nonexistent, the whole structure of the prosecution case must fail. In other words, the charge against the petitioner in all these cases is incorrect and there is thus no chance of any of these cases ending in conviction. I may now come to the other aspect of these cases. Assuming for the sake of argument that the petitioner did grant permits in contravention of Section 62 of the Motor Vehicles Act, the question still remains whether this alone is sufficient to make out a prima facie charge under Section 5 (1) (d) of the Prevention of Corruption Act, It would be useful to reproduce the said provision of the Prevention of Corruption Act, which runs as follows :- "A public servant is said to commit the offence of criminal misconduct in the discharge of his duty 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." 5. The learned counsel for the State contended that the mere fact that the petitioner contravened the aforesaid provision of law of the Motor Vehicles Act, should be sufficient to make out a prima facie case that the petitioner has obtained for another person a valuable thing or pecuniary advantage by corrupt or illegal means and by abusing his position as public servant. To my mind, this should not be the correct position of law. Obviously a public servant has to come in contact with the public. While performing his duties in relation to public, the public servant is bound to confer some benefit on a particular person or body of persons. To my mind, this should not be the correct position of law. Obviously a public servant has to come in contact with the public. While performing his duties in relation to public, the public servant is bound to confer some benefit on a particular person or body of persons. If this interpretation of law is taken to be correct, probably no public servant will be safe. Merely by saying that a particular public servant has done any act in contravention of any law, he could be prosecuted for corruption simply because the contravention of that law will necessarily mean illegal benefit to a certain person or body of persons. In my opinion, if a public servant obtains any pecuniary advantage for himself or for any other person even by doing a lawful act, he would be guilty of corruption. For these reasons, it should be remarked that the gist of the offence is really the obtaining of a pecuniary advantage by the public servant for himself or for any other person, whether it be by lawful means or unlawful means. The matter has been dealt with by the Supreme Court in the case reported as M. Narayanan v. State of Kerala, AIR 1963 SC 1116 . In this reported case, the charge against the public servant was that by abusing his position he got some Government land assigned in the name of his brother-in- law without revealing the fact that he was his brother-in-law and by making false entries in the relevant records showing that the said land contained only 97 trees whereas the land actually contained 150 trees. The suppression of the fact that the assignee was his brother-in-law and the underestimate of the value of the land were dishonestly made to circumvent the rule governing the assignment of land. The words, "corrupt or illegal means", were interpreted to mean some implicit dishonesty and similarly it was observed that the word, "abuse", indicated the necessity for a dishonest intention. Undoubtedly, the question whether in a particular case, the public servant has abused his position or not will depend upon the facts of each case. In this very case, the word, "obtained", as used in Section 5 (1) (d) was also interpreted as a deliberate and conscious attempt on the part of the public servant to acquire or get something. Undoubtedly, the question whether in a particular case, the public servant has abused his position or not will depend upon the facts of each case. In this very case, the word, "obtained", as used in Section 5 (1) (d) was also interpreted as a deliberate and conscious attempt on the part of the public servant to acquire or get something. As has been noted above, the bare allegation in the complaint and in the chargesheet against the petitioner is that he granted temporary permits in contravention of a certain provision of law and thereby conferred illegal benefit on certain persons. There is not the slightest hint that the petitioner was in collusion with any of those persons to whom the permits were granted. It is true that conferring benefit on a third person is also covered by Section 5 (1) (d) of the Prevention of Corruption Act but, as has been observed by the Supreme Court in the above noted case, the words 'corrupt or illegal means' and the word 'abuse' imply some dishonest intention on the part of the public servant. I need not repeat that, to my mind, dishonesty cannot be inferred from the mere fact that the petitioner had contravened any provision of law and thereby conferred illegal benefit on certain persons. It has also been seen above that an act done in contravention of any provision of law will not necessarily mean conferring an illegal benefit on somebody. 6. Now, therefore, it has to be seen whether there is any material before me for drawing an inference that this act of the petitioner indicated any dishonest intention on his part. In this connection, it may first be noted that the petitioner submitted a note to the Regional Transport Authority in which he made it clear that there was a pressing need for granting of temporary permits on this route because of marriage season and because of the increased need of passengers. He has mentioned in this note that some M.L.As. and other prominent persons had approached him telling him about this need. He, therefore, suggested that, keeping in view this need, temporary permits may be granted for four months. He has mentioned in this note that some M.L.As. and other prominent persons had approached him telling him about this need. He, therefore, suggested that, keeping in view this need, temporary permits may be granted for four months. On this recommendation, there is a note of the Regional Transport Authority, dated 6-5-1972, which is to the effect that five permits had been granted to the State Roadways and they had not utilised those permits, they may be asked to utilise them and if they did not utilise them within a month, those five permits may also be given to private operators. The petitioner has contended that in fact the permits were granted by the Regional Transport Authority and not by him. This contention of the petitioner may not be taken to be correct but for the purposes of this case, it will suffice to say that the petitioner did put up a note to his superior officer informing him about the necessity of granting temporary permits and he forwarded a list of nine applicants who wanted those temporary permits. The aforesaid note of the Regional Transport Authority dated 6 - 5-1972 is in the nature of an approval of the petitioner's suggestion. While granting the temporary permits, the petitioner referred to the aforesaid decision of this Court and the decision of the Supreme Court in order to show that the granting of these permits did not violate the provisions of Section 62 of the Motor Vehicles Act. In the counter-affidavit, even the sending of such a note by the petitioner has been denied and regarding the note of the Regional Transport Authority dated 6-5-1972 it has been vehemently urged on behalf of the State that it is a forged and fabricated note and that the Regional Transport Authority never approved this scheme and that the whole thing was done by the petitioner behind the back of the Regional Transport Authority. It was also pointed out that while granting the permits, the petitioner did not bring it to the notice of the Regional Transport Authority that any applications for permanent permits were pending and this showed his dishonesty. To me it appears that the denial of the existence of such a note by the petitioner is simply frivolous and it is also difficult to say that this note of the Regional Transport Authority dated 6-5-1972 is a forged and fabricated one. To me it appears that the denial of the existence of such a note by the petitioner is simply frivolous and it is also difficult to say that this note of the Regional Transport Authority dated 6-5-1972 is a forged and fabricated one. Sri Ashwani Kumar, who was the Regional Transport Authority in those days, has been impleaded as opposite party No. 2 in all these petitions. He has not filed any counter-affidavit alleging that this matter was never brought to his notice and that he never approved this scheme of granting permits. It may not be out of place to mention that no departmental action was ever taken against the petitioner for doing this illegal act and no applicant for permanent permit ever complained to any superior authority that the petitioner had granted these temporary permits dishonestly and for any illegal gain. The record of writ petition No. 7584 of 1972 was summoned and it is before me. This writ petition was filed by one Pushpa Yadav against the Regional Transport Authority and others. In this petition, which was filed on 4-12-1972, it was stated in paragraph 9 that several MLAs had made representations for granting of temporary permits. In para 12 it has been said that the Secretary, Regional Transport Authority, submitted a report to Sri Ashwani Kumar stating that temporary permits should be issued keeping in view the need and then in para 13 it has been said that on 6-5- 1972 Sri Ashwani Kumar made the aforesaid endorsement, a copy of which was filed as annexure 2 of this petition. Obviously, therefore, as early as December, 1972, the existence of this note of the Regional Transport Authority dated 6-5-1972 and the recommendation of the petitioner is proved and it is difficult to say that in the year 1972, the petitioner had forged all these documents to show his bonafides. In my opinion, therefore, it is not correct to say that these documents are forged. Now therefore, it is clear that the whole matter was brought by the petitioner to the notice of his superior officer, namely, the Regional Transport Authority, who approved the granting of temporary permits. These temporary permits were granted to all the mine applicants without any distinction. In my opinion, therefore, these circumstances rather go to show that this act of the petitioner did not indicate any dishonest intention on his part. These temporary permits were granted to all the mine applicants without any distinction. In my opinion, therefore, these circumstances rather go to show that this act of the petitioner did not indicate any dishonest intention on his part. On the other hand, there is absolutely no material before me to show that this act of the petitioner indicated any dishonest intention. In other words, I was not referred to any circumstance from which it may be inferred that these permits were granted dishonestly and in order to obtain any unlawful gain for the petitioner or for anybody else. I have already observed that dishonest intention should not be inferred from the mere fact that the petitioner has done any act in contravention of any rule or law. Thus, even if it be supposed that the permits were granted against the provisions of Section 62 of the said Act, this alone will not be sufficient to sustain the charge. By the way, it may not be out of place to mention that the sanction which has been granted in this case is with reference to the nationalised route, which was, in fact, nationalised in 1951 and is via Bara and Pukhrayan. This may only go to show that the sanction was accorded by the authority concerned without applying his mind. Again, it may be observed that as alleged by the petitioner, numerous temporary permits have been granted for this route after the petitioner's transfer but no action has been taken against anybody else. From these circumstances, the petitioner has sought to show that these prosecutions against him had been launched only to take revenge and on account of some personal grudge. I was not referred to any case in which in the absence of any circumstance, the mere contravention of any rule or law by a public servant might have led to the inference that he was guilty of corruption. As I have already observed, if a public servant is said to have committed any act against law in relation to a person or body of persons, some benefit must necessarily go to that person or body of persons and if the act is illegal, the benefit, so conferred, shall also be called illegal. As I have already observed, if a public servant is said to have committed any act against law in relation to a person or body of persons, some benefit must necessarily go to that person or body of persons and if the act is illegal, the benefit, so conferred, shall also be called illegal. My conclusion, therefore, is that the charge against the applicant in all these petitions is totally groundless and even if all these facts alleged in the charge are taken to be correct, they will not constitute the offence. In such cases, no question of appreciating evidence arises. In the counter-affidavit, it has nowhere been said that the State has in its possession some evidence which might prove that the petitioner was in collusion with any of those persons to whom the temporary permits were granted. This being the position, it must be held that the prosecution of the petitioner in all these cases is nothing but an abuse of the process of law and, therefore, all these criminal proceedings should be quashed. 7. In the result, all the petitions Nos. 7204, 7205, 7206, 7207, 7208, 7209 and 7210 of 1976 are allowed and the various criminal proceedings pending against the applicant under Section 5 (1) (d) of the Prevention of Corruption Act, pending in the court of Judge, Anti Corruption, Kanpur are hereby quashed. Petition allowed.