The offence under Section 13(1)(d) of the Prevention of Corruption Act does not require a demand for pecuniary advantage; abuse of position by a public servant is sufficient.

O R D E R

Dated this the 25 th day of November, 2024 Petitioner seeks quashment of Annexure-6 final report and all further proceedings in C.C.No.25/2023 of the Special Court (Vigilance), Thiruvananthapuram, wherein the petitioner herein is the 4 th accused. The petitioner is a private contractor, who had performed some work for the Water Treatment Plant at Perumala, which comes under the Water Supply Division of Nedumangad. Accused nos.1 and 2 are the Assistant Executive Engineer and the Assistant Engineer, respectively, of the said Water Supply Division. 3 rd accused is the Overseer under that Division. The allegation is that the accused persons, including the petitioner/A4, had entered into a criminal conspiracy, and accused nos. 1 to 3 have abused their official position to give pecuniary advantage to the petitioner/A4 by releasing him amounts totaling to Rs.3.31 lakhs in respect of works, which have not been performed by him, thus causing undue pecuniary advantage to the petitioner/A4 and corresponding loss to the State, thereby committing the offence under Section 13 (1)(d) of the Prevention of Corruption Act, 1988 ('P.C. Act', for short).

2. Heard the learned Counsel for the petitioner; the learned Special Public Prosecutor (Vigilance), on behalf of respondents 1 to 3; and the Standing Counsel for the 4 th respondent. Perused the records.

3. Two points are raised by the learned counsel for the petitioner. The first is that the prosecution sanction, produced at Annexure-5, is not in accordance with law, inasmuch as Annexure-5 sanction was issued subsequently, after the same was declined initially. According to the learned counsel, there was no independent application of mind by the Sanctioning Authority. Secondly, learned counsel would submit that the offence under Section 13 (1) (d) is not made out, inasmuch as there was no demand made by the petitioner/A4 for any pecuniary advantage. Learned counsel would elaborate that the term obtains, as employed in the three limbs of (1)(d) would take within its scope a demand and an acceptance, in the absence of which, an offence under (1)(d) will not lie.

4. Per contra, this Criminal Miscellaneous Case was seriously opposed by the learned Special Public Prosecutor (Vigilance). As regards the first contention, it was pointed out that, the petitioner being a private contractor - and not a public servant - does not have the locus to challenge Annexure-5 Sanction Order. On the second contention, it was pointed out that the offence under Section 13 (1)(d) is complete, once it is shown that a public servant has abused his official position, or by any corrupt or illegal means has acted so as to obtain, either for himself or for any other person, any valuable thing or pecuniary advantage. On the factual contention raised by the learned counsel for the petitioner that the works have in fact been performed by the petitioner, as could be seen from Annexure-2 Report of the Managing Director, Kerala Water Authority, it was pointed out that the same is a matter to be thrashed out, after adducing evidence.

5. Having heard the learned counsel appearing for the respective parties, this Court can only endorse the submissions made by the learned Special Public Prosecutor. On the first contention, as rightly pointed out, the petitioner has no locus to challenge Annexure-5 Sanction Order, inasmuch as he is not a public servant. Sanction is issued to prosecute a public servant, wherefore, challenge, if any, to the same has to be made by a public servant. The contention that the petitioner/A4 is also detrimentally affected by such illegal grant of sanction, is too far fetched and remote a cause, so as to afford him the locus to challenge the same. The said contention will therefore stand repelled.

6. Coming to the second, this Court notice that, to constitute an offence under Section 13 (1)(d), three limbs are provided. The 1 st limb speaks of a situation where a public servant, by corrupt of illegal