It is common knowledge that Judicial/ Administrative/Revenue Officers do not remain aloof from the public and seek/accept favour from them. The common favours include availing rent free accommodation, using their private cars & accepting costly gifts/holidays etc.

There is a model code of conduct/ Rules in all Government Services which mandate that Government Officials should be honest & modest, maintain integrity & high character & should not take undesirable favour from outsiders. It is a common practice that Public officials from Revenue Department, District Administration or the District Judiciary ask for their personal errands from assessees, litigants, applicants or advocates/ CAs.

However, as per model code of conduct, this is impermissible and should not be resorted to as the opposite party or anyone displeased with them might bring it to the notice of the higher-ups and the concerned person may land into difficulty. This is particularly true in the present times of transparency due to RTI, Social Media exposure, Judicial Activism and Media Trials.

It would be trite to refer to a much publicized incident which happened in December 2020 when a District Judge used a private car while travelling to attend a camp Court. Incidentally, the car belonged to a person against whom an FIR was registered for forgery and his matter was 'sub judice'. Immediately after the knowledge of the incident, the High Court of Uttarakhand took cognizance of the matter and instituted Disciplinary action against the said District Judge and placed him under suspension.

It is pertinent that as per service rules, the District Judge was supposed to use only his official vehicle to attend the camp Court but he travelled in a private Audi car. The owner of the said Audi car had been booked u/s 420, 467, 468, 471 & 120-B of the IPC and a writ petition (criminal) was pending before the Uttarakhand High Court.

The High Court treated this act of the District Judge as grave misconduct and in violation of Rule 3(1), 3(2), & Rule 30 of the Uttarakhand Government Servants' Conduct Rules, 2002 not becoming of a senior Judicial and smelling of disintegrity.

In yet another case in February 2021,the Uttarakhand High Court suspended a civil judge (senior division) finding him guilty of misconduct for allegedly favouring an accused in a criminal case and for using private vehicles owned by the accused for family trips. The High Court observed that the conduct of the judge casts serious doubt upon his integrity, amounts to grave misconduct and is in violation of Rule 3(1), 3(2) and Rule 30 of the Uttarakhand Government Servants' Conduct Rules, 2002. In both the above cases, the High Court did not consider the impact of Section 11 of the Prevention of the Corruption Act, as it stands today after the Amendment in 2018.

It would be relevant to refer to a recent case in the Bombay High Court in Criminal Revision Application No. 183 of 2023 titled Anil Goel Versus Union of India & Anr. decided on 25th October 2023.

The brief facts are that F.I.R. dated 18/12/2015 was lodged by the CBI, Cochin for the offences punishable under Sections 7, 12, & 13(2) read with 13(1)(a) & (d) of the Prevention of Corruption Act, 1988 read with Section 120-B of the Indian Penal Code. The name of the applicant was not mentioned in the primary charge-sheet and he was never arrested during the course of investigation from 2015 to 2019. On 31/07/2019, C.B.I. fled the supplementary charge-sheet against the Applicant, accusing him of committing an offence under Section 11 of the P.C. Act.

The allegation levelled against him is that, while functioning as Chief Commissioner of Income Tax (CCIT) from the period between 01/01/2014 to 31/12/2015, he had occupied a flat (guesthouse) belonging to M/s Heera Constructions, without payment of any rent. CBI claimed that as M/s Heera Constructions fell within the assessment jurisdiction of the Applicant, the act of staying in the flat, without payment of rent, constituted offence under Section 11 of the P.C. Act.

The investigation had revealed that Heera Constructions had taken the said flat used by it as guesthouse on lease from another private person. The Applicant is alleged to have stayed in the Apartment, free of cost, by abusing the offcial position, as Chief Commissioner of Income Tax, Thiruvananthapuram. It is alleged that rent of Rs.4,40,000/- was paid by M/s Heera Constructions Pvt. Ltd. to the owner of the Apartment. The charge-sheet also alleged that ITO Mr.Sarath (Accused No.2), knowing that M/s Heera Constructions has official dealing with

Mr.Anil Goel (Applicant), told their CA Ram Pillai Bhadra Kumar to arrange a guesthouse and thereafter Apartment No.1A in Heera Velmont Palace, was taken on lease by M/s Heera Constructions from the owner of the Apartment. It is alleged that Heera Builders paid total rent of Rs.4.4 lakhs to Mrs.Nanma Jayan for the stay of the Applicant in the said flat.

The CBI Court held the applicant guilty as the applicant has not paid any rent for the said period nor he intended to vacate the said apartment, in-spite of repeated demand to the applicant. The Court held that the act and conduct on part the applicant, being a Public Servant, attract the provisions of section 11 of the P.C. Act.

On revision before the Bombay High Court, the Court made reference to Section 11 of the P.C. Act as it read before it's amendment in the year 2018 :-

11. Public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant.- Whoever, being a public servant, accepts or obtains or agrees to accept or attempts to obtain for himself, or for any other person, any valuable thing without consideration, or for a consideration, which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person, whom he knows to be interested in or related to the person so concerned, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.

The Court dealt with the said provision and observed thus:
From reading of the aforesaid provision, it is evident that the act of a public servant, accepting or obtaining or attempting to obtain, either for himself or for any other person, any "valuable thing", without consideration or for an inadequate consideration, from any person whom he knows to have been or to be likely to be concerned in any proceeding or business transacted or about to be transacted by the public servant or has any connect with his official position, then such an act would amount to an offence under Section 11.

However, the High Court after noting the facts of the case and elaborating Section 11 of the P.C. Act as it read before its amendment in the year 2018, gave benefit of doubt to the accused as the guilt of the applicant could not be proved beyond and held thus:

I find the arguments, in the facts of the case, to be completely misplaced as when I repeatedly inquired with Mr.Shirsat as to amongst thousands and thousands of assessees in Thiruvananthapuram, where the Applicant was functioning as Chief Commissioner of Income Tax, whether only on the premise that there is a possibility of his assessment being either questioned or for any reason assessed by the present Applicant in his capacity as Chief Commissioner of Income tax, it is unfathomable to assume that at some future point of time, a business connection could be established.

Mr. Shirsat has failed to consider the most important aspect of the provision, being the "valuable thing is obtained or attempted to be obtained from any person, which he knows to have been or to be likely to be concerned" in any proceedings or business transacted or about to be transacted by such public servant.

The charge-sheet falls short of this particular material, as Mr. Shirsat would take me to a statement of Shri Ram Pillai Bhadra Kumar,Chartered Accountant and working as an Income Tax Consultant and Representative of M/s Heera Builders, who has stated that he was knowing Accused No.2- Mr.Sarath, the Income Tax Officer for last 10 years.

He state that Mr. Sarath requested him to get guesthouse for Shri Anil Goel, Chief Commissioner of Income Tax, who is recently posted in Thiruvananthapuram for few days and he was told to talk to M/s Heera Builders, as he was aware that he was looking after the income tax matters of M/s Heera Builders. Accordingly, he spoke to the Managing Director of Heera

Builders for providing guesthouse to the CCIT and upon consulting the Finance Manager, M/s Heera Builders agreed to provide their guesthouse to the Applicant, for few days. While recording his statement, he told the Deputy Superintendent of

Police that he was not aware that the Applicant was staying in the guesthouse for long duration, without paying rent, as subsequently he did not play any role in it, but later he came to know that Shri Anil Goel was not vacating the guesthouse."

The Court further explained the reason of exonerating the applicant thus:
9. Whether the Applicant had any knowledge about the requirement of payment of rent is an important question and, since, he was asked to occupy the said flat by the ITO, and was never apprised that he shall bear the rent for the same, it cannot be accepted that he was aware about the rent to be paid and the flat is leased out by the owner to M/s Heera Constructions.

Further, in absence of any material to show that there was any business transacted or about to be transacted by him in respect of M/s Heera Builders as an 'Assessee' and as Mr. Shirsat would submit sometimes in future, M/s Heera Constructions would have been subjected to assessment or even if he was assessee, he may have some dealing in future, in my considered opinion, is an incomprehensible argument, as in Thiruvananthapuram, there may be large number of assesses and it cannot be speculated that there is going to be a future transaction or business connect with either of them.

In absence of this relevant material in the charge-sheet, which would constitute as a ground for presuming that the Applicant has committed the offence, the charge must be considered to be groundless, which is a same thing as saying that there is no ground for framing the charge.

The impugned order, by relaying upon the statement of R. K. Babu and Ram Pillai Bhadra Kuamr, has concluded that the Applicant occupied the flat, but has failed to pay the rent and this act is suffcient to make out a prima facie offence under Section 11 read with Section 12 of the P.C. Act though Accused No.2-Sarath was refused sanction and he was not charge-sheeted and, hence, the offence under Sections 34 and120-B of the IPC is not made out.

In absence of establishing that the flat has been enjoyed free of cost and it has a connect with the duty to be discharged by the Applicant in relation to the assessee, merely because an assessee fall within his jurisdiction, it cannot be said that the ingredients of Section 11A are made out. Hence, the Applicant has been wrongly charge-sheeted and deserve a discharge."

It should be borne in mind that the decision of the High Court may be challenged by CBI in the Apex Court. Facts vary in all cases and the decisions of the Court are subjective. More importantly, Section 11 of the PC Act has been since amended in 2018. Post amendment the Section reads thus:

11. Public servant obtaining 1[undue advantage], without consideration from person concerned in proceeding or business transacted by such public servant.

Whoever, being a public servant, accepts or obtains 2 or attempts to obtain for himself, or for any other person, any 1[undue advantage] without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having any connection with the 3[official functions or public duty] of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."

Post amendment the said section has become very stringent and the scope of this section has enlarged manifold. On the same facts, after the said amendment Post 2018, it would not be easy to exonerate the applicant because post amendment, the insertion of the phrase 'undue advantage' and 'having any connection with the [official functions or public duty] of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned,' have expanded the scope of Section 11 of the PC Act.

These incidents/cases are an eye-opener for Government servants who are habitual of use of complimentary private cars, hotel rooms, clubs/restaurants & gifts. Because of transparency and use of Information Technology, every act of a government official is under scanner. The movements, conversations, messages, mails of any government officials can be retrieved anytime, whenever required. The bank accounts & lockers of any official can easily be traced with the mandatory identification provided by Aadhaar card.

With digitalization of immovable properties on the anvil, there are more chances of exposure of unexplained investments. CC television Cameras have been installed at strategic locations and movement of any individual can easily be traced. Media throughout the world has also become very investigative and in order to increase their TPA, they expose politicians, government officers, film-stars, sports persons & big business tycoons.

It is therefore necessary for all government officials to be modest, honest, maintain high integrity & character and their actions should be in accordance with the Service rules. RTI has created transparency beyond imagination. They should not take things for granted as with new technologies

"Uper wala sab dekhta hai-sab jaanta hai". Nobody would be able to elude from henceforth.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]