Srinagar, Sep 26: The High Court of J&K and Ladakh ruled that offences under the Prevention of Corruption (PC) Act could be invoked not only against a public servant but also against a person, who by virtue of his office is discharging “public duty”.
“From a bare reading of the definition of the word ‘public servant’ as defined in the PC Act, it is emphatically clear that a person who holds the office by virtue of which he is authorised or required to perform any public duty and any person or employee of any institution, receiving or having received any financial assistance from the Central government or State government or local or other public authority, should be considered as a public servant,” Justice Wasim Sadiq Nargal said in his judgment.
Emphasising the need for eradication of corruption, Justice Nargal, observed: “This court is of the firm view that a zero tolerance towards corruption should be the top-notch priority for ensuring system-based and policy-driven, transparent, and responsive governance.”
He held that corruption could not be annihilated but strategically be dwindled by reducing monopoly and enabling transparency in decision making.
The court made the observations while dismissing a petition by petitioners Sheikh Abdul Majeed and Tajamul Hassan Shah, who were seeking to scrap FIR No 16/2023 dated August 18, 2023, registered against them with Police Station Anti-Corruption Bureau Srinagar under Section 7 and 7A of the PC Act 1988.
The petitioners sought to quash the FIR primarily on the ground that it had been registered without jurisdiction.
As per the petition, Sheikh was the sole proprietor of the proprietorship concern under the name and style ‘Sheikh Suppliers and Contractors’ located at Chandpora, Budgam, and the firm was registered with the Jammu and Kashmir Works Department.
As such, Sheikh was a private individual and was not a ‘public servant’ as provided under Section 2(c) of the act.
Shah was Sheikh’s employee and worked as an office boy in the firm and as such he also did not fall within the definition of ‘public servant’ as prescribed under Section 2(c) of the act.
To run and operate his business, Sheikh constructed a godown over his proprietary land situated at Chandpora, Budgam in 2012, and the godown was taken over by the Food Corporation of India (FCI) in 2013 under an agreement (lease) entered into by and between him and the FCI.
According to him, this agreement was in his capacity as a private individual.
Consequently, in terms of the agreement, Sheikh became the lessor of the godown and the corporation became the lessee, and accordingly, the godown became operational.
On August 18, 2023, the officials of the corporation entered the premises (godown) based on some complaint made by one Altaf Hamza Mir, who approached the Police Station ACB, Srinagar, with a written complaint wherein he had stated that he was a driver by profession and on the directions of the owner of the vehicle reached FCI Godown, Chandpora, Budgam with a load of rice of FCI and the available FCI staff was requested to get the vehicle unloaded.
He was “told to meet Sheikh, the owner of the godown, and weigher, Shah, to pay them the bribe of Rs 3500 for getting the FCI foodgrains unloaded from the vehicle”.
Based on the complaint, FIR No 16/2023 under Sections 7 and 7A of the PC Act came to be registered with Police Station ACB Srinagar.
There were allegations against Sheikh for demanding a bribe and consequently trap proceedings were initiated, and accordingly, the tainted money was recovered based on trap proceedings.
In their plea, the petitioners contended that the entire proceedings from lodgement of complaint, initiation of trap proceedings, and registration of FIR were beyond any authority and jurisdiction of the ACB.
The Issue before the court was whether the petitioners fell within the ambit of ‘public servant’ as defined under Section 2(c) of the act and whether they were performing ‘public duty’ as defined under Section 2(b) of the definition clause of the act.
“This court is of the view that both the petitioners fall within the ambit of ‘public servant’ as defined under Section 2(c) of the act,” the Bench said. “Thus, this court holds that the role of petitioner No 1 falls under Section 2(c) of the act, as he has performed a public duty as defined under Section 2(b) of the act. This court further holds that since petitioner No 2 being the employee of petitioner No 1 has performed duties in conformity with the lease agreement and model agreement and in his case definition clause of ‘public servant’ and ‘public duty’ can also be made applicable keeping in view the object of the enactment of the act.”
Besides, the issue before the court was “whether the ingredients of Section 7 and 7A have been made out in the instant case to proceed against the petitioners under the PC Act”.
“This court is of the view that even if a person is not a public servant but by virtue of his office, however, if he is discharging a public duty that is the petitioners in the instant case who are performing duties on behalf of FCI on the strength of lease agreement and model agreement, then they are covered under the ambit of the PC Act,” the court said.