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2013 DIGILAW 545 (KER)

George Sebastian v. Anoop George

2013-07-02

K.HARILAL

body2013
ORDER : K. Harilal, J. The revision petitioner is the complainant in Crl.M.P.No.264/13 on the files of the Enquiry Commissioner and Special Judge, Kottayam. The above complaint was filed under Section 190 read with section 200 of the Code of Criminal Procedure. The allegations in the complaint are as follows: 2. The accused 1 and 2 are brothers and they are neighbours also and persons well-known to the complainant since the last so many years. The accused Nos.3 and 4 are Revenue Officers and 5 and 6 are the Headmaster of a Higher Secondary School and the Assistant Director of Agriculture, respectively. The 7th accused is an Advocate as well as a Notary Public. The allegations in the complaint are as follows: The date of birth of the 1st accused was 10.4.1983, as per Document No.3, the certificate of Baptism. In the records of the Kottayam Municipality also the date of birth is mentioned as 10.4.1983. The 1st accused who had been in Italy has returned to the native place recently. Thereafter, with the help of the second accused brother, he started to obtain documents for changing his date of birth as 10.4.1984. The brothers have prepared 3 affidavits of their mother Marykutty to the effect that the date of birth of the 1st accused was 10.4.1984. The photocopies of those documents are marked as documents Nos.5 to 7. The act allegedly punishable under law committed by the accused Nos.5 to 7 is that they have attested those affidavits without verifying the identity of the person, who swore before them. In fact, the mother Marykutty was in England for the last 6 months with her another son. The allegation against the accused Nos.3 and 4 is that without conducting proper enquiry in respect of the date of birth of the first accused, the Village Officer has filed a report before the 3rd respondent stating that the date of birth of the first accused is 10.4.1984 and thus the R.D.O. has passed an order giving permission under Section 13(3) of the Registration of Births and Deaths Act, 1969, for registering the date of birth of the first accused as 10.4.1984 on the basis of the application filed by the mother of the first accused. In short, the allegation against them is that they have not conducted any proper enquiry as provided under the Registration of Births and Deaths Act. In short, the allegation against them is that they have not conducted any proper enquiry as provided under the Registration of Births and Deaths Act. The allegation against the accused Nos.5 to 7 was that they attested a forged affidavit only to help the accused Nos.1 and 2. The accused Nos.3, 4, 5, 6 and 7 being the public servants abused their official position and by corrupt and illegal means obtained pecuniary advantage from the accused Nos.1 and 2 and all the accused, with a common intention entered into a criminal conspiracy to commit fraud and committed forgery and cheating. By the above act, they have committed the offences punishable under Sections 120B, 465, 468, 471 r/w Section 34 I.P.C. and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. According to the complainant, only a proper investigation and enquiry could reveal the magnitude of forgery and corruption. 3. After considering the averments in the complaint, the Enquiry Commissioner and Special Judge found that the averments in the complaint do not disclose the offences alleged against the accused, particularly no offence under Section 13(1)(d) of the Prevention of Corruption Act had been made out even if the allegations in the complaint are accepted at its entirety and thereby dismissed the complaint with cost of Rs.25,000/-. This order is under challenge in this Revision Petition on various grounds. 4. The learned counsel for the revision petitioner submits that the court below went wrong in finding that the allegations do not disclose the offence alleged against the accused. The court below has not considered the offences alleged against accused Nos.5 and 6. The opinion of the court below in para 3 of the order that even if the allegations against the R.D.O./Notary Public is accepted for argument sake, no mala fide intention can be attributed against them is not correct. 5. I heard the learned counsel for the revision petitioner and perused the complaint. In view of the arguments advanced at the Bar, the question to be considered is whether there is any illegality or impropriety in the order dismissing the complaint on a finding that the allegations in the complaint do not disclose the offences alleged against the accused, triable by the Special Court of Enquiry Commissioner and Special Judge constituted for trying the offences punishable under the Prevention of Corruption Act. Going by the impugned order, it could be seen that it is a complaint filed under Sections 190 and 200 of the Cr.P.C. alleging the offences punishable under the Prevention of Corruption Act. The complaint is filed before the Enquiry Commissioner and Special Judge on the reason that the accused Nos.3 to 6 are the public servants and they have committed the offences punishable under Section 13 (1)(d) r/w 13(2) of the Prevention of Corruption Act. Admittedly, the accused Nos.1, 2 and 7 are not the public servants. So, the preliminary question to be considered is whether this complaint is maintainable before the Enquiry Commissioner and Special Judge. 6. To maintain a complaint before the Enquiry Commissioner and Special Judge, certainly, the allegations must constitute an offence punishable under the Prevention of Corruption Act and the accused must be public servants coming under the Prevention of Corruption Act. No doubt, other private persons can also be prosecuted along with the public servants in view of Section 4 of the Prevention of Corruption Act, if they have committed the offences punishable under the Indian Penal Code. Therefore the accused Nos.1, 2 and 7 can also be prosecuted before the Special Judge for the offences punishable under the Indian Penal Code along with accused Nos. 3 to 6 only if the complaint discloses the offence punishable under Section 13 (1)(d) of the Prevention of Corruption Act against the accused Nos.3 to 6. 7. So, the first question to be considered is whether the allegations in the complaint constitute the offence punishable under Section 13(1)(d) of the Prevention of Corruption Act against the accused Nos.3 to 6. If not, the complaint is not maintainable before the Special Court. The statutory mandate under Section 13(1)(d) of the Act is that a person is said to have committed a criminal misconduct, if he, by corrupt or illegal means, obtained for himself or for any other person any valuable thing or pecuniary advantage. So, the question is whether there is any allegation prima facie discloses that accused Nos.3 to 6 have committed any act by corrupt or illegal means to obtain for themselves or for any other persons any valuable or pecuniary advantage. Going by the complaint, it is seen that the allegations against the accused are comprised in paras 7 and 8 of the complaint. Going by the complaint, it is seen that the allegations against the accused are comprised in paras 7 and 8 of the complaint. In para 7, the only allegation is that the accused Nos.3 to 6 being the public servants accepted enough bribe for their illegal works. In para 8, it is stated that they abused their official position by corrupt and illegal means and obtained pecuniary advantage from accused Nos.1 and 2. According to the revision petitioner, these averments are sufficient to maintain a private complaint against the public servants before the Special Court. According to Section 190(a) of the Cr.P.C., "the Magistrate may take cognizance of any offence upon receipt of a complaint of facts which constitute such offence." What is contained in para 7 is a bare assertion that the accused Nos.3 to 6 accepted enough bribe. What are the circumstances in which the complainant arrived at such an assertion? Nothing stated about any kind of circumstances which led him to reach such an opinion. Is there any direct evidence proving acceptance of bribe? No mala fides has been attributed to any of the findings in the order granting permission to correct the date of birth. Nothing stated about any particular circumstances indicating any kind of corrupt practice or acceptance of bribe thereunder. So, at the most, it can be a mere suspicion alone. Para 8 is the verbatim re-production of the expression employed in Section 13(1)(d) of the Prevention of Corruption Act. The adoption of words employed in the Section for constituting the ingredients of offence cannot be a substitute for the facts constituting the offence. The 'facts' must contain the manner in which the transaction or occurrence constituting the offence took place. Thus, the mere assertion that the accused Nos.3 to 6 accepted bribe has no legs to stand. 8. Even if the accused Nos.3 to 6 wrongly or erroneously granted permission to correct the date of birth, can an inference be drawn that the accused Nos.3 to 6 accepted bribe ? Error is human. So, a public servant also may commit wrongs or errors during the act of discharging his official duty for various reasons, though he is not expected to do so. The consequence thereof including disciplinary action and punishment depends upon the reasons and the culpability thereunder. A public servant may commit wrong by ignorance of law or rule or procedure. So, a public servant also may commit wrongs or errors during the act of discharging his official duty for various reasons, though he is not expected to do so. The consequence thereof including disciplinary action and punishment depends upon the reasons and the culpability thereunder. A public servant may commit wrong by ignorance of law or rule or procedure. Some wrong or error may be committed by carelessness or negligence or dereliction of duty or misplaced sympathy or inability or incomprehensibility etc. Similarly, some act done in good faith with bona fide belief that it is right or righteous, may be found wrong subsequently. At the same time, some wrong may be committed with a dishonest intention to obtain for himself or for any other person any valuable thing or pecuniary advantage. I am of the opinion that the dishonest intention to obtain illegal advantages must be distinguishable from the other reasons or possibilities on the basis of the facts and circumstances alleged in the private complaint and such circumstances would clearly indicate the dishonest intention alone after ruling out all other reasons indicated above. So, merely on the reason that a public servant has committed a wrong and another person got an undue advantage, acceptance of bribe or obtaining of bribe or valuable thing or pecuniary advantage cannot be attributed mechanically on the public servant or such a presumption cannot be drawn automatically against all public servants invariably in all cases. 9. So, in a private complaint alleging offence under Section 13(1)(d) of the Prevention of Corruption Act, it is incumbent upon the complainant to produce sufficient materials or to make sufficient, clear and strong averments containing the facts and circumstances pointing towards the dishonest intention to obtain the pecuniary advantage or valuable things for himself or for any other person and such averments must be capable enough to rule out the possibility of other reasons for committing the wrong which is indicated in the above paragraph. Unless the averments and materials produced along with the complaint constitute or indicate such strong circumstances pointing towards the dishonest intention for the said illegal purpose alone, the Special Court is not inclined to order police investigation under Section 156(3) Cr.P.C. to investigate the offence under the Prevention of Corruption Act. 10. Unless the averments and materials produced along with the complaint constitute or indicate such strong circumstances pointing towards the dishonest intention for the said illegal purpose alone, the Special Court is not inclined to order police investigation under Section 156(3) Cr.P.C. to investigate the offence under the Prevention of Corruption Act. 10. To sum up, a mere suspicion alone that the public servant accepted bribe is not sufficient to maintain a private complaint before the Special Court for the offence under Section 13(1)(d) of the Prevention of Corruption Act. Strong facts and circumstances constituting or indicating dishonest intention of the public servant to obtain illegal advantages, after ruling out all other possibilities are inevitable in the complaint. The jurisdiction and power of the Special Court cannot be availed of for experimental exercises or for using as a post office for embarking an investigation under Section 156(3) Cr.P.C. to wreak vengeance on a public servant. It is to be borne in mind that the public servants are safeguarded by Section 197 of the Cr.P.C., if the alleged act was done in discharge of their official duty and they cannot be allowed to be subjected to unnecessary harassments founded on mala fide intention. 11. Going by the Registration of Births and Deaths Act, there is a specific provision providing protection to the public servants for the act done in good faith while in discharge of power under the said Act. Section 28 of the said Act specifically mandates that no suit or prosecution or other legal proceedings shall lie against the Government, the Registrar General, any Registrar or any person exercising any power or performing any duty under this Act for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made thereunder. So, it is for the complainant to allege strong circumstances indicating that the order was passed without good faith. Thus, I find that the allegations against accused Nos.3 to 6 in the complaint do not constitute an offence punishable under Section 13(1)(d) of the Prevention of Corruption Act. If that be so, the complaint itself will not lie before the Special Court even if the allegations constitute offences against other accused. I am also endorsing the views of the learned Judge regarding the conduct of the complainant. 12. If that be so, the complaint itself will not lie before the Special Court even if the allegations constitute offences against other accused. I am also endorsing the views of the learned Judge regarding the conduct of the complainant. 12. A private person alone cannot be prosecuted before the Special Court constituted under the Prevention of Corruption Act; but he can be prosecuted for the offences under the Indian Penal Code before the Special Court along with public servants, against whom the offences under the Prevention of Corruption Act are alleged. So, the Special Court is inclined to keep vigil over such mala fide and mischievous attempts to falsely implicate public servants also in the private complaint so as to get the jurisdiction of the Special Court to prosecute the private persons. Such an attempt to abuse the process of the court must be mulcted with heavy costs. So, the learned Special Judge rightly imposed heavy cost on the complainant and the complainant does not deserve any leniency in the matter of cost. There is no illegality or impropriety in the impugned order under challenge. Consequently, this Revision Petition is dismissed.