Criminal Mis-conduct Cases

This offence is analogous to the offence under Sec.409 IPC. However, whereas under Sec.409 IPC, a public servant is guilty only if he commits the criminal breach of trust himself, under this clause, he is guilty whether he himself misappropriates or allows any other person to misappropriate property entrusted to him in his official capacity. Another difference between the two offences is that while under Sec.409 IPC, the punishments may extend up to 10 years, under this clause the punishment extends up to 7 years alone and under the former provision no minimum sentence is prescribed but under the latter a minimum imprisonment of 1 year is stipulated. Yet another difference is that for prosecution for an offence under this clause, sanction of the competent authority is required, but not under sec.409 IPC.

In cases, which fall both under sec.409 IPC and under this clause, the public servant may be proceeded against under the I.P.C. or the P.C.Act as considered appropriate in each case or under both the provisions. The gravity of the offence and other relevant matters will have to be taken into consideration in exercising the discretion. In such cases, where the public servant is prosecuted under the P.C.Act alone, a question arises whether on his acquittal of that charge, the public servant can be tried under Sec.409 IPC. The Supreme Court held that there can be no bar to a trial and conviction under Sec.409 IPC after the acquittal of the accused or an offence under this clause.

Under this clause, it is an offence of criminal misconduct if a public servant: I) obtains for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means; ii) Obtains for himself or for any other person any valuable thing or pecuniary advantage by abusing his official position; or iii) obtains for any person any valuable thing or pecuniary advantage without any public interest while holding office as public servant.

On receipt of a complaint from the administrative department, the Anti-Corruption Bureau takes up a "Discreet Enquiry". If a prima facie case is established during the "Discreet Enquiry" either in whole or in respect of a few of the allegations, the Anti-Corruption Bureau will convert the discreet enquiry into a "Regular Enquiry" under intimation to the department concerned without having to complete the enquiry on all the allegations. If a cognizable offence is made out during the Discreet or Regular Enquiry, the Anti-Corruption Bureau registers the case under section 154 of the Criminal Procedure Code as a "Registered Case" under intimation to the department concerned and takes up formal investigation.

In a "Discreet Enquiry", preliminary enquiries are made to find out the truth or otherwise of the allegations maintaining secrecy. In the Regular Enquiry, detailed open enquiries are conducted. Statements of witnesses are recorded and the suspect Government servant is given an opportunity to explain the circumstances appearing against him. In a Registered case, formal investigation is conducted as per the provisions of law.

Information about corruption, misconduct or malpractices on the part of Government servants comes to light from various sources such as: I) Complaints received by an administrative authority; ii) Complaints received by the Vigilance Commission; iii) Complaints received and intelligence gathered by the Anti-Corruption Bureau; iv) Departmental inspection and stock verification reports: v) Scrutiny of annual property statements; vi) Scrutiny of transactions reported under the conduct Rules; vii) Irregularities in accounts revealed in the routine audit of accounts, such as tampering with records, over-payments, misappropriation of money, materials etc., viii) Audit reports on Government accounts and on the accounts of public undertakings, corporate bodies etc; ix) Reports of Estimates Committee, Public Accounts Committee and Committee on Public Undertakings; x) Proceedings of the State Legislature; xi) Complaints and allegations appearing in the Press: xii) Income Tax raids etc., The manner in which complaints should be dealt with has been elaborately explained in Chapter II. Information gathered from reports, returns, newspapers etc., may be considered as if they are complaints and dealt with in the same way as letters of complaint. Apart from information gathered from outside sources, the Chief Vigilance Officer should devise and adopt such other methods as he may consider appropriate and fruitful in the context of the nature of work handled in his organization for collecting information about any possible malpractices and misconduct among the employees of his organization. Information gathered in such a manner should also be reduced to writing and registered in the Vigilance Complaints Register at a suitable stage. The matters in which the Vigilance Commission should be consulted during the course of inquiry and investigation has been elaborately dealt with in the relevant paragraphs of this Manual. The Anti-Corruption Bureau has full powers of collecting source information against all categories of officers at all levels (Memo No.163/SC.E/83-2 G.A(SC.D)Dept. dt.30-3-83.) Securing of source information’s should receive utmost importance and top priority as it depends on in no small measure the success of the anti-corruption drive of the Bureau. Officers of the Bureau, Investigating Officers in particular, should develop effective intelligence system and set up sources and collect fruitful information of corruption in high places in notoriously corrupt departments and public sector undertakings. Particular attention should be paid in securing information for laying of traps and registration of cases of disproportionate assets. They should take prompt notice of allegations of corruption published in the local press and pamphlets, besides information from other sources mentioned above. Great care should be taken to see that they do not become instruments in the hands of unscrupulous elements out to malign honest public servants and bring them to trouble. Utmost secrecy should be maintained and at no time should the name of the informant be disclosed.