Cannot initiate graft case against public servant for passing order against govt: Kerala HC

Team Udayavani, Jul 12, 2021, 5:50 PM IST

Thiruvananthapuram: An order, passed by a public servant or a statutory authority which was incorrect or not in favour of the government can not be reason enough to initiate a corruption case or criminal proceedings against them, the Kerala High Court said on Monday.

The ruling by the court came while quashing the corruption charges and related proceedings initiated against an Assistant Commissioner of Sales Tax on the ground that his orders directing refund of Rs 50,18,606 to a company as excess tax paid by it caused a loss to the government.

The criminal proceedings were initiated against the officer on a complaint by the Commissioner of Commercial Taxes alleging that the Asst Commissioner deliberately omitted to verify assessment files, audited statement of accounts, revised returns and other records including bank accounts of the private firm before passing the refund order.

It was also alleged that the Asst Commissioner, now retired, ignored the suppression of turnover made by the company, did not follow the statutory provisions and was in violation of the written directions given by the Deputy Commissioner of Commercial Taxes.

The high court said that merely because an order passed by the public servant was not in favour of the government and the other side obtained a pecuniary advantage, ”cannot be the basis for prosecution of the public servant under the Prevention of Corruption Act, unless there is allegation that the public servant was actuated by extraneous considerations or oblique motives in passing the order”.

”In the instant case, the prosecution has not raised any allegation that the petitioner (Asst Commissioner) had accepted a bribe or that the assessment orders were passed by him on extraneous considerations,” the court said.

Justice R Narayana Pisharadi, who passed the order on the officer’s plea, said erroneous exercise of judicial power, without any allegation or proof of illegal gratification, would not amount to criminal misconduct or warrant initiation of criminal proceedings against a public servant.

The court said that the ”sanctity of decision making process should not be confused with the ultimate conclusion reached by the authority”.

”If the statutory authorities who exercise quasi judicial powers feel that they cannot honestly and fearlessly deal with matters that come before them, then it would not be conducive to the rule of law.They must be free to express their mind in the matter of appreciation of the evidence before them.” ”Unless there are clear allegations of misconduct or extraneous influences or gratification of any kind, criminal proceedings cannot be initiated merely on the basis that a wrong order has been passed by the public servant or merely on the ground that the order is incorrect,” the court said.

It further said that there was a provision for appeal or revision against an order under the law and it was there ”on the presupposition that persons may go wrong in decision making, facts as well as law”.

The court also said that in the present case, the petitioner-officer was the competent authority who had the power to assess the tax due from the company, the assessment orders passed by him were in legal proceedings and, therefore, he would be squarely covered under the definition of ‘judge’ in section 2 of theJudges (Protection) Act, 1985.

Therefore, he was entitled to get the protection provided under the Act in respect of such acts which were performed during the course of his quasi-judicial functions and the same cannot form the basis for instituting criminal proceedings against him, the court said.