Srinagar, September 26: The High Court of J&K and Ladakh held that a person who is executing “public duty” by virtue of his post may be prosecuted for an offence under the Prevention of Corruption (PC) Act.
“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 a public servant,” Justice Wasim Sadi wrote.
Justiciar Nargal said, “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.”
To him, the only way to combat corruption was to make the decision-making process more open and less monopolistic.
These comments were made as the court denied the petition of Sheikh Abdul Majeed and Tajamul Hassan Shah to vacate Section 7 and 7A of the PC Act 1988-based FIR No. 16/2023, dated August 18, 2023, filed against them by the Police Station Anti-Corruption Bureau in Srinagar.
Petitioners argued that the FIR should be dismissed since it was filed in the wrong jurisdiction.
According to the petition, Sheikh was the sole owner of a proprietorship organisation called “Sheikh Suppliers and Contractors,” with an address and registration number in the city of Chandpora in the district of Budgam in the Indian state of Jammu and Kashmir.
According to the definition of a ‘public servant’ in Section 2(c) of the Act, Sheikh was not one.
In the same vein as Sheikh, Shah did not qualify as a “public servant” under Section 2(c) of the statute since he was Sheikh’s employee and worked as an office boy in the business.
Sheikh built a warehouse on his own property at Chandpora, Budgam, in 2012 for the purpose of running his company. The Food Corporation of India (FCI) leased the warehouse from Sheikh in 2013, and FCI began using it in 2014.
He claims he was acting in his own capacity when he signed the deal.
According to the provisions of the contract, Sheikh is now the godown’s lessor, and the company is now the godown’s lessee.
In a written complaint submitted to the Police Station ACB in Srinagar on August 18, 2023, one Altaf Hamza Mir stated that he was a driver who had arrived at the FCI Godown in Chandpora, Budgam, with a load of rice from FCI at the direction of the owner of the vehicle and that the available FCI staff had been directed to unload the vehicle.
“Meet Sheikh, the godown owner, and weigher, Shah, and pay them the bribe of Rs 3500 to unload the FCI foodgrains from the vehicle,” he was instructed.
Police Station ACB Srinagar lodged FIR No. 16/2023 under Sections 7 and 7A of the PC Act in response to the complaint.
Trap procedures were begun when suspicions surfaced that Sheikh had demanded a bribe, and the corrupt funds were ultimately recovered as a result.
The petitioners argued that the ACB had no power or jurisdiction over the whole process, beginning with the filing of the complaint and continuing through the opening of the trap procedures and the filing of the FIR.
The petitioners’ eligibility to be considered “public servants” under Section 2(c) of the Act and to be engaged in “public duty” under Section 2(b) of the Act’s defining clause was before the court.
“This court is of the view that both petitioners fall within the ambit of ‘public servant’ as defined under Section 2(c) of the act,” the bench concluded. Accordingly, the court concludes that petitioner No. 1’s position qualifies under Section 2(c) of the act, given that he has discharged a public obligation within the meaning of Section 2(b) of the act. With regard to Petitioner No. 2, the court rules that “the definition clause of ‘public servant’ and ‘public duty’ can also be made applicable in his case, keeping in view the object of the enactment of the act.” Petitioner No. 2 is an employee of Petitioner No. 1. He has fulfilled his duties in accordance with the lease agreement and the model agreement.
Furthermore, the question 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 a lease agreement and model agreement, then they are covered under the ambit of the PC Act,” the court said.
