TMI Blog2021 (4) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... If a public servant, acting as a quasi judicial authority under a statute passes an order and if such order is in favour of a person other than the Government, any pecuniary advantage obtained by such person by virtue of such order, cannot be the basis for prosecution of the public servant under the PC Act, unless there is an allegation that he was actuated by extraneous considerations or oblique motives in passing the order - to fall within the four corners of sub-clause (ii) of clause (d) of Sub-section (1) of Section 13 of the P.C. Act, the decision/conduct of the public servant must be dishonest amounting to corruption. Mens rea, the intention and/or knowledge of wrong doing, is an essential condition of the offence of criminal misconduct under Section 13(1)(d)(ii) of the P.C. Act. The presumption under Section 20 of the P.C. Act does not apply to the offence under Section 13(1)(d)(ii) of that Act. The condition precedent to the commencement of investigation is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. The right of the police to conduct investigation is conditioned by the existence of reason to suspect the commission of a cog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nducting the hearing personally as prescribed by the Kerala Land Conservancy Act, the Tahsildar (A1) entrusted that task to the Head Clerk. The second irregularity was that, the first accused, in paragraph 8 of his order clearly stated that the party was free to avail the appellate provisions under the above Act but he issued notice and conducted summary eviction. The first accused was convinced that manipulation of records had been done by M/s. Joys Group with the connivance of revenue officials but he did not take any legal action against the culprits. The above irregularities were done by the first accused deliberately to favour M/s. Joys Group. M/s. Joys Group challenged the above proceedings in the court, on the ground that the first accused had not followed the mandatory procedure before issuing the order. Later, on the basis of the direction of the court, Sri P. Sunil Kumar (A2), who was then the Tahsildar, Udumbanchola, conducted a fresh hearing and he, without going through the back files and the factual position of the matter, issued a fresh proceedings dated 24.05.2014, which gave undue favour to M/s. Joys Group. Thus, the first and the second accused conspired with M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the investigation conducted over a period of more than six years, remains unanswered. Learned Public Prosecutor has also not made any submissions to controvert the contentions raised by the learned counsel for the petitioner. 11. Before proceeding further, it is necessary to narrate the circumstances which led to the registration of Annexure-I F.I.R. There was an allegation that M/s. Joys Enterprises was in unauthorised occupation of government land comprised in Sy. No. 87/1 of the Chinnakanal Village and that they had illegally constructed buildings in that land. This allegation was raised on the ground that patta No. 71/72 in respect of a portion of the above land was a fraudulent document. The first accused Tahsildar conducted an enquiry in the matter and he passed an order dated 11.08.2011, declaring that the land having an extent of 3.41 acres, including 2.14 acres covered by patta No. 71/72, was in the unauthorised possession of M/s. Joys Group and directing resumption of that land. 12. M/s. Joys Enterprises challenged the above order dated 11.08.2011 before this Court by filing W.P.(C) No. 22227/2011. As per Annexure-III judgment dated 21.12.2011, this Court qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nexure-VI order was not in any way corrected or changed as per Annexure-VII order. 17. However, the District Collector suo motu passed Annexure-VIII order dated 16.07.2014, cancelling Annexure-VII order on the ground that the corrections were made by the petitioner without the concurrence of any superior officer. 18. The allegation against the petitioner in Annexure-I F.I.R. is that he passed Annexure-VI order without verifying the back records and without ascertaining the factual position and therefore, he committed criminal misconduct. Annexure-VI order dated 24.05.2014 passed by the petitioner is an order passed by him under Section 12 of the Kerala Land Conservancy Act, 1957. This provision contemplates issuing notice to the occupant of the land, recording statement of the parties and receiving evidence before passing an order. 19. There can be no dispute with regard to the fact that the proceeding under Section 12 of the Act is a quasi judicial proceeding. In fact, it is specifically mentioned in this provision that, for the purpose of Section 199 of the Indian Penal Code, the proceedings taken under this provision shall be deemed to be judicial proceedings. 20. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isposal of the matter on findings based upon those questions of law and fact . 23. Where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi judicial. The presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi judicial authority, is sufficient to hold that such a statutory authority is quasi judicial authority. However, in the absence of a lis before a statutory authority, the authority would be quasi judicial authority if it is required to act judicially. What distinguishes an administrative act from quasi judicial act is, in the case of quasi judicial functions under the relevant law, the statutory authority is required to act judicially. When the law requires that an authority before arriving at decision must make an enquiry, such a requirement of law makes the authority a quasi judicial authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry error committed by a quasi judicial authority, however gross it may be, should not be attributed to improper motives. The appellate and revisional forums have been provided on the pre-supposition that persons may go wrong in decision making, on facts as well as law. Even when the contest is between the Government and a private person, a quasi judicial authority entrusted with the task of decision making should feel fearless to give honest opinion while acting judicially. Even if there was possibility on a given set of facts to arrive at a different conclusion, it is no ground to indict a public servant for misconduct for taking one view. If a faulty order of a quasi judicial authority is taken as a ground for initiating criminal proceedings, the officer will be in constant fear of passing an order which is not favourable to the Government. Then he would not be able to act independently or fearlessly. Merely because the order is wrong, it does not warrant initiation of criminal proceedings against the public servant, unless he was actuated by extraneous considerations or oblique motives. The remedy for errors committed by a quasi judicial authority is appeal or revision to the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing the order. 30. A bare perusal of Section 13(1)(d)(ii) of the P.C. Act would reveal that a public servant can be prosecuted under that provision, only if he has abused his position as public servant and obtained for himself or for any other person any valuable thing or pecuniary advantage. There is absolutely no whisper in Annexure-I F.I.R. that the petitioner obtained any valuable thing or pecuniary advantage by abusing his position as public servant. As noticed earlier, by virtue of the quasi judicial order passed by a public servant, if a party to the proceedings before the public servant had obtained any pecuniary advantage, it cannot be found that it was obtained by him as result of abuse of the official position of the public servant. The legislative intent is not to punish a public servant for any erroneous decision; but to punish him for corruption. Thus, to fall within the four corners of sub-clause (ii) of clause (d) of Sub-section (1) of Section 13 of the P.C. Act, the decision/conduct of the public servant must be dishonest amounting to corruption. Mens rea, the intention and/or knowledge of wrong doing, is an essential condition of the offence of criminal mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if no cognizable offence is disclosed and still more, if no offence of any kind is disclosed, the police would have no authority to undertake an investigation . 37. The condition precedent to the commencement of investigation is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. The right of the police to conduct investigation is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably have reason so to suspect unless the F.I.R., prima facie, discloses the commission of offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation. On the other hand, if the F.I.R. does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received. A person, against whom no offence is disclosed, cannot be put to any harassment by the process of investigation (See State of West Bengal v. Swapan Kumar Guha : AIR 1982 SC 949). Where the uncontroverted allegations made in the F.I.R. and the evidence collected in support of the same do not d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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