[J&K Prevention of Corruption Act] Criminal Proceedings Can't Be Launched Against Public Servant In Absence Of Dishonest Intention: High Court

The Jammu and Kashmir and Ladakh High Court recently ruled that in the absence of any dishonest motive or intention on the part of public servant, criminal prosecution cannot be launched against him or her under the Prevention of Corruption Act. The bench comprising Justice Sanjay Dhar was hearing a petition challenging FIR for offence under Section 5 of the J&K Prevention of Corruption Act, 2006 registered with the Police Station, Vigilance Organization Jammu. During the verification, it was revealed that RBA certificate in favour of the petitioner Indra Thakur had been issued in violation of the provisions of J&K Reservation Act 2004 inasmuch as, the annual income of her father exceeded the prescribed ceiling limit and that the petitioner had not completed her entire school education from the local area. Pointing towards the contentions of Additional Advocate General, Justice Sanjay Dhar said, "the question would arise whether criminal prosecution for offence under Section 5 of the J&K PC Act can be launched against a public servant only on the basis of erroneous interpretation of a statute/rule, particularly when neither there is any allegation in the FIR nor there is any material on record of the verification file to show that the competent authority has either adopted any corrupt means or obtained any pecuniary advantage for itself while issuing the certificate in question". While answering the said question the bench placed firm reliance on the Supreme Court judgment in C. K Sharief vs State, and observed that it is clear that dishonest intention is the gist of the offence under Section 5 of J&K Prevention of Corruption Act punishable under Section 5 of the Act and unless it is shown that a public servant has, by corrupt or illegal means, abused his position, it cannot be stated that he has committed the offence of criminal misconduct.