[Prevention of Corruption Act] Actions contrary to norms but without dishonest intention not criminal misconduct: Kerala High Court

The Kerala High Court recently quashed the vigilance case against Bharath Dharma Jana Sena (BDJS) leader Thushar Vellappally and a few others in connection with the appointment of two persons to the Guruvayur Devaswom (Thushar Vallappally v. State of Kerala)..Single judge Justice R Narayana Pisharadi held that as per the provisions of the Prevention of Corruption Act, 1988, actions of public servants which may be contrary to departmental norms do not amount to criminal misconduct unless it was done with dishonest intention."Dishonest intention is the gist of the offence under Section 13(1)(d) of the Act. Mere conduct and action of a public servant, without dishonest intention but contrary to departmental norms, do not amount to criminal misconduct," the judgment stated. Noting that there was no factual basis for the allegation against the petitioners that they committed criminal misconduct as defined under Section 13(1)(d) of the Act in relation to the appointments to the Devaswom, the Court ordered that the charge sheets against the petitioners in the trial court be quashed..The petitions were filed by nine persons who were accused of criminal misconduct as defined in the Act in connection with the appointment of two persons to the Guruvayur Devaswom Board.Although the Inspector of Police, Vigilance and Anti-Corruption Bureau (VACB) recommended no criminal action in his preliminary report, the special court rejected the same. The special court found that the allegations in the complaint disclosed commission of cognizable offence under the Act and directed the VACB to register a case against the accused.Subsequently, they approached the High Court seeking to quash the charge-sheets filed against them by the VACB..Senior Advocate S Sreekumar and Advocate AN Rajan Babu represented the petitioners..Public Prosecutor A Rajesh contended that the facts emerging from the documents in the charge sheets would clearly establish a prima facie case of abuse of power by the accused. .The Court focused on the provisions of the Section 13(1)(d) of the Act as it stood before the amendment in the year 2018.As per said Section, a public servant is said to commit the offence of criminal misconduct, if he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest..The Court held that dishonest intention is the gist of the offence under Section 13(1)(d) of the Act. ."Mere violation of procedure in the appointment does not lead to an inference that the Members of the Managing Committee had dishonest intention in making such appointment especially when the appointment was ratified by the competent authority," the Court opined..On an inspection of the facts and evidence of the case, the Court found that dishonest intention cannot be established and it therefore allowed the appeals and quashed the charge sheets filed against the petitioners..[Read Judgment]