The Kerala High Court held that mere conduct and action contrary to departmental rules and norms would not amount to criminal misconduct by a public servant.

The petitioners, who held positions in the Ports department and led a tender committee, were accused of allowing ineligible Cooperative Societies to participate in a tender process.

A Single Bench of Justice K. Babu observed, “Dishonest intention is sine qua non to attract the offence punishable under Section 13(1)(d) of the Act. Mere conduct and action of the accused contrary to rules and departmental norms would not amount to criminal misconduct by a public servant.

Advocate Athul Shaji represented the petitioners, while Spl. GP Rajesh A appeared for the respondents.

The petitioners filed the petition to quash the FIR and further proceedings related to allegations of irregularities in the tender process for manual dredging and sale of port sand. The petitioners were accused of conspiring with ineligible cooperative societies during the tender process, resulting in criminal misconduct and conspiracy.

The Vigilance and Anti-Corruption Bureau (VACB) investigated and filed a final report, accusing the petitioners of offences under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act) and Section 120-B read with Section 34 of IPC.

Section 13(1)(d) of the Prevention of Corruption Act stipulates that public servants can face prosecution only if they have abused their position and gained a valuable thing or pecuniary advantage. The legislative intent is to punish corruption rather than erroneous decisions of public servants.

The Court explained that for the term 'abuse' in Section 13(1)(d) of the Prevention of Corruption Act to apply, the prosecution must prove that the public official used their position for a purpose it was not intended for. The gist of the offence under Section 13(1)(d) of the PC Act is dishonest intention.

The Court held that the allegations levelled against the petitioners were merely irregularities committed in a tender process. The Court further noted, “It is trite that conspiracy need not be yet necessarily proved by direct evidence. It is also capable of being proved by circumstances pointing out the existence of a conspiracy to commit an unlawful act.

The Court pointed out, “It is also important to note that there is absolutely no allegation in the prosecution case that the petitioners obtained any pecuniary advantage.

Subsequently, the High Court quashed the criminal proceedings against the petitioners and allowed the petition.

Cause Title: C. Surendranath & Anr. v. State of Kerala & Anr. (2024:KER:3760)

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