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Index Page No.

1. Section 482 Cr.P.C.- Saving of inherent power of High Court

 Karnataka v. L. Muniswamy & others……………………………………………2

 State of Haryana and others v. Ch. Bhajan Lal and others………………………..2
 Rajiv Thapar and others v. Madan Lal Kapoor……………………………………3

2. Sections 13(2)/13(1)(d) of the Prevention of Corruption Act

 Necessity of proof of a demand or request of a valuable thing

or pecuniary advantage from the public servant…………………………………..4
 Mens Rea in Criminal Misconduct………………………………………………..5

3. Judgment relevant to our case

 Prakash Mishra vs. State of Odisha and Ors………………………………………6

 Fani Bhusan Das Vs. State of Orissa……………………………………………...7
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Section 482 CrPC- Saving of inherent power of High Court.

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to
make such orders as may be necessary to give effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends of justice.

1. In the case of State of Karnataka v. L. Muniswamy & others1, the Supreme Court
observed

“7……….In the exercise of this wholesome power, the High Court is entitled to quash a
proceeding if it comes to the conclusion that allowing the proceeding to continue would
be an abuse of the process of the Court or that the ends of justice require that the
proceeding ought to be quashed. The saving of the High Court's inherent powers, both
in civil and criminal matters is designed to achieve a salutary public purpose which is
that a court proceeding ought not to be permitted to degenerate into a weapon of
harassment or persecution.”

2. In the case of State of Haryana and others v. Ch. Bhajan Lal and others2, the
Supreme Court enunciated categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the process of any Court or
otherwise to secure the ends of justice

105……“1. Where the allegations made in the First Information Report or the complaint,
even if they are taken at their face value and accepted in their entirety do not prima-facie
constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any,
accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation
by police officers Under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence
collected in support of the same do not disclose the commission of any offence and make
out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated Under Section 155(2) of the Code.
1
AIR 1977 SC 1489
2
AIR 1992 SC 604
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5. Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or
the concerned Act (under which a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific provision in the Code or
the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and personal grudge.”

3. The High Court is free to consider even material that may be produced on behalf of the
accused, to arrive at a decision whether the charge as framed could be maintained. The
Supreme Court has delineated such consideration in Rajiv Thapar and others v.
Madan Lal Kapoor3 to quash such criminal proceedings.

“23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the
following steps to determine the veracity of a prayer for quashing, raised by an accused
by invoking the power vested in the High Court under Section 482 of the Code of
Criminal Procedure:

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and
indubitable, i.e., the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the
assertions contained in the charges levelled against the accused, i.e., the material is
sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the
material is such, as would persuade a reasonable person to dismiss and condemn the
factual basis of the accusations as false.

(iii) Step three, whether the material relied upon by the accused, has not been refuted by
the prosecution/complainant; and/or the material is such, that it cannot be justifiably
refuted by the prosecution/complainant?
(iv)Step four, whether proceeding with the trial would result in an abuse of process of the
court, and would not serve the ends of justice?

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(2013) 3 SCC 330
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If the answer to all the steps is in the affirmative, judicial conscience of the High Court
should persuade it to quash such criminal proceedings, in exercise of power vested in it
under Section 482 of the Code of Criminal Procedure. Such exercise of power, besides
doing justice to the accused, would save precious court time, which would otherwise be
wasted in holding such a trial (as well as, proceedings arising therefrom) specially when,
it is clear that the same would not conclude in the conviction of the accused.”

Such power would be available for exercise not only at the threshold of a criminal proceeding
but also at a relatively advanced stage thereof, namely, after framing of the charge against the
accused.

Sections 13(2)/13(1)(d) of the Prevention of Corruption Act

(1) A public servant is said to commit the offence of criminal misconduct,—

(d) 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.

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment
for a term which shall be not less than [four years] but which may extend to [ten years] and shall
also be liable to fine.

Comment
1. The word ‘obtain’ in the section has been discussed in detail by the Supreme Court in the
case of C.K. Damodaran Nair v. Govt. of India 4. It refers proof of a demand or request
of a valuable thing or pecuniary advantage from the public servant. In other words,
in the absence of proof of demand or request from the public servant for a valuable thing
or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be
established. In our case, the appellant has merely approved the rate proposed by the
PD, DRDA and accepted the hand quotations given by the Contractor. There is no
proof that a demand or request for valuable thing or pecuniary advantage was
made. The relevant para of the C K. Damodaran(supra) Judgment is in the following:-
“12. The position will, however, be different so far as an offence under Section 5(1)(d)
read with Section 5(2) of the Act is concerned. For such an offence prosecution has to
prove that the accused 'obtained* the valuable thing or pecuniary advantage by corrupt

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(1997) 9 SCC 477
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or illegal means or by otherwise abusing his position as a public servant and that too
without the aid of the statutory presumption under Section 4(1) of the Act as it is
available only in respect of offences under Section 5(1)(a) and (b) -- and not under
Section 5(1)(c), (d) or (e) of the Act. 'Obtain' means to secure or gain (something)' as the
result of request or effort (Shorter Oxford Dictionary). In case of obtainment the
initiative vests in the person who receives and in that context a demand or request from
him will be a primary requisite for an offence under Section 5(1) (d) of the Act unlike
an offence under Section 161 I.P.C, which, as noticed above, can be, established by
proof of either 'acceptance' --- or 'obtainment.'”

2. Mens Rea in Criminal Misconduct

Specific mens rea is required to ascertain a crime. Criminal offences vary in that some
may require intention as the mens rea, some require only recklessness or some other state
of mind and some are even satisfied by negligence. The variety in fact goes
considerably further than this in that not only do different offences make use of
different types of mental element, but also they utilise those elements in different
ways.

C.K. Jaffer Sharief v. State (through CBI)5

Facts

Here the Appellant is alleged to have committed an offence under Section 13(2) of
Prevention of Corruption Act during his tenure as the Union Railway Minister. Appellant
had dishonestly made the Managing Directors of RITES (Rail India Technical &
Economics Services Ltd.) and IRCON (Indian Railway Construction Company Ltd.) to
take the four employees in question on "deputation" for the sole purpose of sending them
to London in connection with the medical treatment of the Appellant. Neither RITES nor
IRCON had any pending business in London and that none of the four persons had not
performed any duty pertaining to RITES or IRCON while they were in London; yet the to
and fro air fare of all the four persons was paid by the above two Public Sector
Undertakings. On the said basis it has been alleged that the accused Appellant had
abused his office and caused pecuniary loss to the two Public Sector Undertakings
by arranging the visits of the four persons in question to London without any public
interest.
Held

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(2013) 1 SCC 205.
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“17…….As a Minister it was for the Appellant to decide on the number and identity of
the officials and supporting staff who should accompany him to London if it was
anticipated that he would be required to perform his official duties while in London. If in
the process, the Rules or Norms applicable were violated or the decision taken shows
an extravagant display of redundance it is the conduct and action of the Appellant
which may have been improper or contrary to departmental norms. But to say that the
same was actuated by a dishonest intention to obtain an undue pecuniary advantage
will not be correct. That dishonest intention is the gist of the offence under Section 13(1)
(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a
public servant.”

Comment

What are the various consideration that needs to be taken before performing any official
duty is beseeched on the Officer. In the process, if any rule or norm ( in our case
accepting the hand quotations given by the Contractor and giving approval without any
bid) is violated, maximum it could be said to be improper or contrary to departmental
norms , but to say that same was done by dishonest intention to obtain pecuniary
advantage will not be correct

Judgment relevant to our case

1. Prakash Mishra vs. State of Odisha and Ors6

Facts

Here, the appellant is the Chairman-cum-Managing Director of Odisha State Police

Housing & Welfare Corporation (OSPH & WC). During his tenure he approved the
payment of 100% advance towards cost of cement and steel to different suppliers prior to
the supply, without any security and without ensuring the delivery of the materials and
thereby allowed pecuniary advantage to the said suppliers by abusing his official
position. Further, in pursuance of conspiracy with other accused, he abused his official
positions and passed orders for 100% payment of price without approval of the Board of
Directors of the Corporation and thereby showed undue pecuniary advantage to the
cement and steel suppliers and others and as such he is liable for commission of offences
of criminal misconduct and criminal conspiracy under Section 13(2) r/w Section 13(1)(d)
of the P.C. Act and Section 120-B I.P.C.
Held

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MANU/OR/0230/2015
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“51. In the instant case, no materials have been produced before this Court to show that
the petitioners had any dishonest intention in sanctioning 100% advance towards
purchase of cement and steel from the manufacturers/suppliers. Moreover, as has been
admitted in the subsequent counter affidavit filed by the Vigilance Department, the
practice and procedure of payment of 100% advance towards price of cement and steel
was in vogue much before the petitioners joined the Corporation and continued even
after they left the service of the Corporation. Further, taking a bonafide decision in the
best interest of the Corporation to procure steel from public sector undertakings, like
SAIL and RINL and branded cement from renowned manufacturers like Ultratech,
Lafarge, ACC, L & T, OCC etc. through a transparent procedure at non-trade price,
which is much lesser than the market price, cannot be said to be an improper or illegal
decision taken with dishonest interest, which would amount to criminal misconduct…..

52. Further, neither the F.I.R. nor the materials available in the case diary reveals any
particulars of the steel and cement manufacturers/suppliers who have failed to supply the
required materials and the exact amount of pecuniary advantage gained by them at the
cost of the Corporation…..”

Comment

Similarly, in our case, awarding the tender for transportation at the given rate and to the
specific Contractor was in force before the appellant became the collector. He merely
continued with the system which was at work long before he holds the office. Moreover
considering the emergent situation which was there before the appellant to make the food
deliver in the shortest possible time cannot be said to be improper or illegal decision
taken with dishonest interest, which would amount to criminal misconduct.

2. Fani Bhusan Das Vs. State of Orissa7

Fact

In this case, a question of law arose that whether sanction under section 197 Cr.P.C. and
Section 19 Prevention of Corruption Act is necessary to prosecute against the Public
servant for allegedly committing offence by him in discharge of his official duty.

Held

“38. Now, adverting to the present case, it appears that the petitioner-Fani Bhusan Das
has retired from service since 28.2.1995 but the FIR and the charge-sheet were

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MANU/OR/0544/2018
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submitted after his retirement, cognizance of offence under IPC was taken without any
sanction order accompanying the prosecution although such prosecution should not
have been made as observed by the Hon'ble Supreme Court in the case of State of
Punjab v. Labh Singh (supra). But the prosecution against him will not be defective so
far as the offences under the Act, 1988 are concerned without any sanction of
prosecution being obtained. Since the cognizance of offence has been taken after the
retirement of the petitioner-Fani Bhusan Das without any sanction of prosecution
obtained for the offence under Section 120-B of IPC, the same would not stand but
prosecution under Section 13(2) read with Section 13 (1)(d) is valid being not
defective.”

“42……Similarly, the order dated 12.2.2004 of taking cognizance for the offence under
Section 120-B of IPC against the other petitioner-Fani Bhusan Das in CRLMC No. 696
of 2004, being without sanction, is liable to be quashed and the Court do so.”

Comment

In our case, the F.I.R. didn’t mention the name of appellant. He was made a party after
submission of Charge sheet. At that time, the appellant has already retired from his
services. The above-mentioned Judgment of Odisha High Court after considering various
Judgments of Hon’ble Supreme Court makes the law clear that Government sanction is
necessary under section 197 CrPC to prosecute the government servant under any
section of the Indian Penal Code