Judgment : These two petitioners are arrayed as accused persons in Crime No.2 of 1996 for offences under Secs. 120-B, 420, Indian Penal Code and Sec. 13 (2) read with 13 (1) (c) and (d) of Prevention of Corruption Act, 1988. They approached the Court of Session at Madras, seeking release on bail and the Court of Session declined to grant the prayer and dismissed the petitions by a common order. They have approached this Court for the same relief. The offences alleged being the same and they are accused in the same crime number, these two petitioners are taken up for consideration together and this common order is passed. 2. Briefly stated the prosecution case is that certain irregularities were committed in the implementation of two schemes, viz., the Indira Avas Yojana (I.A.Y.) and Jawahar Yojana alias Jawahar Velaivaippu Thittam (J.V.V.T.) in respect of which certain guidelines have been issued by the Government indicating that efforts should be made to utilise the maximum the available local materials, adopting low cost technology. The specific allegation against the petitioner in Crl.O.P.No.6608 of 1966 (A2) is that he had recommended the proposal for acceptance by the Government and failed to refer the same to the Finance Department and thereby, violating Rule 10(1)(a) of the Business Rules. Petitioner in Crl.O.P.No.6818 of 1996 (A3) initiated the proposal ad Director of Rural Development placing orders for steel doors on certain co-operative societies in violation of the norms prescribed in G.O.Ms.No.708 (Finance B.P.E) Department dated 22.8.1994. It is also alleged that such placement of orders resulted in wrongful loss to the State Government and pecuniary advantage to certain individuals. They were arrested on 8.8.1996. Now, they are injudicial custody. Petitioner No. 1 herein, J.T. Acharyulu, was the Secretary to the Government, Rural Development Department and Petitioner No.2, Sathyamoorthi, was the Director of the same department. Petitioner No. 1, as Secretary to the Department, recommended the proposal for acceptance with undue haste to the Government. While selecting four industrial co-operative societies, both the petitioners failed to verify the infrastructure possessed by those Societies to manufacture the steel doors. Further more, the price of the steel doors have been fixed very high, namely, Rs. 1,685 including 12-5% centage charges. Due to payments of centage charges for the overheads incurred by the Department, the Government suffered to the tune of Rs.82.95 lakhs at the rate of Rs. Further more, the price of the steel doors have been fixed very high, namely, Rs. 1,685 including 12-5% centage charges. Due to payments of centage charges for the overheads incurred by the Department, the Government suffered to the tune of Rs.82.95 lakhs at the rate of Rs. 1,685 per steel door for about 50,000 houses. When the centage has not been provided, this was included in the estimate, is a circumstance to show that A.2 and A.3 did not bother to look into the Government orders or the Business Rules. The object of the programme was to generate gainful employment for unemployed and continue the benefits to the persons belonging to the poverty group in the rural areas. The beneficiary being the people below the poverty line, preference to be given to the Scheduled Castes and Scheduled Tribes. The costs of the scheme is shared by the Centre and State on 80:20 basis. In letter and spirit, the programme essentially meant to create employment with the group construction being one among many activities. 3. It is stated that the investigation so far done disclose that four Societies recommended, out of them three do not possess any infrastructural facilities or capacity for manufacturing steel doors and similar materials. They are found existing only in name and there are reasons to believe that they are brought on record only for the purpose of obtaining the orders. The persons behind these Societies are also absconding and the matter is still investigation. 4. It is contended on behalf of the petitioners that considering the extreme urgency, a systematic timely action on war footing was taken in all levels in order to achieve the results aimed by the Government. The four Societies since registered Societies of Tamil Nadu Khadi and village Industries Board and the Minister selected the four Societies, they did not verify about the infrastructural facilities of these Societies. Though the petitioners have pleaded innocence and have denied that they had no intention to pass on the pecuniary benefits to anybody as alleged by the prosecution, the fact that they failed to make enquiries and made departure from normal procedure by their omission to take proper care either in going through the previous note or adverting to the Scheme is evident from the file. 5. 5. However, the fact remains that the four Societies mentioned sent by A.3, are not run by Tamil Nadu Khadi and Village Industries Board. The file discloses that the petitioners joined together with the Minister and approved the proposal, that too, when the Government order dated 28.8.1994 does not contemplate the sanction of any advance amount and non-reference to the Finance Department. The language implied in Rule 10 (1)(a) of the Business Rules is mandatory and previous consultation with the Finance Department is absolutely necessary. A.2, being the Secretary to Government, has failed to follow the Rule 10(1)(a) of the Business Rules and within a short span of three days, the G.O. was issued in haste on 28.8.1995. The scheme as contemplated ban on contractors or construction by the department. The Government-departments or organisations can, however, give technical assistance or arrange for coordinated supply of raw materials such as cement, steel or bricks. The spirit of I.A.Y. is that the house is not constructed and delivered by any external agency; on the other hand, the house is constructed by ultimate occupier of the house. Stress is laid on the involvement of beneficiaries, namely, the construction of the houses should be done by the beneficiaries themselves from the very beginning. The beneficiaries may make their own arrangement for the construction and may engage skilled workmen on their own and also contribute family labour. The beneficiaries will have complete freedom as to the manner of construction of the house which is their own. This will result in economy in cost, ensure quality of construction and lead to satisfaction on the part of the beneficiaries and acceptance of the house. The responsibility for the proper construction of the house will thus be on the beneficiaries themselves. A Committee of the beneficiaries should be formed to coordinate the work and they should be consulted in all matters relating to I.A.Y. It is also emphasized that Technology using bricks, cement and steel on large scale should not be encouraged. The omission to refer all these aspects in the correspondences or in the note not even adverting to the Government Order dated 22.8.1994 may indicate the abuse of position with dishonest intention deliberately causing wrongful loss and conferring pecuniary benefits on others. The omission to refer all these aspects in the correspondences or in the note not even adverting to the Government Order dated 22.8.1994 may indicate the abuse of position with dishonest intention deliberately causing wrongful loss and conferring pecuniary benefits on others. But, in a case of conspiracy, the sharing of the intention in achieving an object and participation in pursuance of the said intention depends upon the attending circumstances and the manner how the act was committed. At this stage, not proper to express any opinion. The Apex Court in Kashi Nath Roy v. State of Bihar, (1996)4 S.C.C. 539 has held: “The Courts exercising bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For, in that manner, the principle of ”presumption of innocence of an accused“ gets jeopardized; and the structural principle of ”not guilty till proved guilty“ gets destroyed, even though all sane elements have always understood that such views are tentative and not final, so as to affect the merit of the matter.” 6. Sec. 13(1)(c) of the Prevention of Corruption Act contains expressly a proposition as to a state of mind. The word ‘misconduct’ as appearing in Sec.5 of the Prevention of Corruption Act has in its context a wider import and application and is not confined to a single act, but may also embrace in its fold many similar acts committed by the accused. All such acts may collectively constitute an offence. The gist of offence under Sec. 13(1)(d) is that public officer abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. Whether they abused their position or not depends upon the facts of each case. Conduct, which constitutes a crime, consists of a person doing or omitting to do physical acts. Such conduct should be done with a particular intend either expressly manifested or impliedly suggested from the conduct. 7. It is undoubtedly the duty of the officer to carry out truly and faithfully the orders of the Minister, but at the same time it is also their duty to advise him clearly and firmly whenever the action of the Minister is not in accordance with the well-recognised and established principles of administration. 7. It is undoubtedly the duty of the officer to carry out truly and faithfully the orders of the Minister, but at the same time it is also their duty to advise him clearly and firmly whenever the action of the Minister is not in accordance with the well-recognised and established principles of administration. Bothing can be more disastrous to a State than that the Heads of administration should, instead of advising the Minister properly, take to humouring them and toeing their line. 8. The materials in the file disclose that the abuse started from the top. Naturally it will have a demoralising effect on officers, who by virtue of their status and position would normally be expected to take an objective view of matters coming up before them succumb to temptation of becoming subservient and willing tools for furthering the interests of those under whom they serve. Whether they acted as merely tools or shared the intention and aspired as participators with dishonest intention are matters of evidence during trial. 9. Having regard to the gravity of the offence, awarding 50% of the advance when the G.O. does not contemplate, non-verification of the infrastructural facility available to the proposed four societies, non-compliance with the Rule 10(1) (a) of the Business Rules, which is mandatory establishes a prima facie case. When the investigation at the District level has to be done to ascertain whether the Scheme has reached the beneficiaries, if so, how? the aspect of connivance and conspiracy, the manner how it was hatched and the respective participation of the petitioners and the manner of collaboration are area still to be investigated. Having regard to their conduct in the Department and connection with the persons, who benefited by such contract are yet to be probed. When the petitioner approached the Court of Session the investigation was at the initial stage. The learned Judge dismissed the application holding that the release of the petitioner on bail would hamper the investigation and there is likelihood of tampering with witnesses, consequently the truth may be suppressed. I see no substantial change in circumstances. Now, the stage is that most of the witnesses working in the concerned department at District level are yet to be examined, so also some officials in the Secretariat. There is every likelihood of putting obstacles to the investigation through them. I see no substantial change in circumstances. Now, the stage is that most of the witnesses working in the concerned department at District level are yet to be examined, so also some officials in the Secretariat. There is every likelihood of putting obstacles to the investigation through them. In a case of alleged corruption by persons in high office, grant of bail is likely to cover the tracks and make it impossible for police to unearth the entire gamut of shady transaction. In that way, there may be likelihood of tampering with the witnesses and also putting obstacles and consequently, there may be delay in investigation. Therefore, I see no merit in the petitions. The petitions are liable to be dismissed accordingly they are dismissed.