Report No. 29
Category 3.-Misuse of Public Position by Public Servants
122. Misuse of their position by public servants etc. (Category 3).-The third category of offences mentioned by the Santhanam Committee is the following:-
"Misuse of their position by public servants in making of contracts and disposal of public property, issue of licences and permits and similar other matters".
The Committee observed1, that where there was power and discretion, there was always the possibility of abuse, more so when the power and discretion had been exercised in the context of scarcity and controls and pressure to spend public money. It also referred2 to dishonest practices like the system of "speed money" (money paid to speed up the process of movement of files, etc.) and to the corruption prevalent in contracts of construction, purchases, sales, etc.3.
1. Report of the Santhanam Committee, p. 9, para. 2.9.
2. Report of the Santhanam Committee, p. 9, para. 2.10.
3. Report of the Santhanam Committee, p. 10, para. 2.11.
123. Existing provisions analysed.-There are numerous provisions regarding misuse of position by public servants in various enactments1. Misuse of such position in the making of contracts or disposal of property is not separately dealt with in any of these enactments. If by such misuse the public servant concerned obtains any valuable thing or pecuniary advantage, the offence would be covered by section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act2-3, the relevant portion of which is quoted below2:-
"5(1). A public servant is said to commit the offence of criminal misconduct in the discharge of his duty if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
5(2). Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine:
Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year."
1. See Appendix 3.
2. The Prevention of Corruption Act, 1947 (2 of 1947).
3. For a detailed analysis, see Appendix 23.
124. Misuse without benefit.-What remains is the misuse of such position without obtaining any such 'benefit. Such cases would be rare, and if they do happen, it would be difficult to ascribe a criminal intention to the person concerned in such cases.
125. Points raised in comments.-It has been suggested in one of the comments received by us, that a new section-section 164A-should be inserted in the Indian Penal Code to penalise the misuse of position by public servants in the making of contracts, etc. The matter, however, seems to be sufficiently covered by section 5 of the Prevention of Corruption Act1.
1. The Prevention of Corruption Act, 1947 (2 of 1947).
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