In the present writ petition, the Amicus Curiae Mr.R.Singaravelan, Senior Advocate filed a report and his effective assistance stands appreciated. by sm subramaniyam judge

IN THE HON’BLE HIGH COURT OF JUDICATURE AT MADRAS
[Special Original Jurisdiction]

W.P.No. 6677 of 2010

M. Rajendran
& 2 Others. … Petitioners
-Vs-

1. The Secretary to Government,
Home department,
And 10 Others. … Respondents

REPORT FILED BY THE AMICUS CURIAE

I. PRELUDE:- Apex Court on Corruption:-

1. Justice V.R.Krishna Iyer In Re. Special Courts Bill, 1978 reported in AIR 1979 SC 478 = (1979) 2 SCJ 35 = (1979) 2 SCR 476 observed about the corruption as follows,
“…Corruption and repression – cousins in such situation – hijack development process and in the long run lagging national progress means ebbing peoples’ confidence in Constitutional means to social justice… “

2. The Hon’ble Apex court in Vineet Narayanan Vs Union of India reported in AIR 1998 SC 889 = 1998 Crl.LW 1208 has clearly described the seriousness of corruption in public life in the following words:-
“ …Corruption in a civilized society is a decease like cancer, which if not deducted in time, is sure it spread its malignance among the quality of the country leading to disastrous consequences. Therefore, it is often described as Roya thievery. Corruption is opposed to democracy and social order, as being not only anti-people, but also due to the fact that it affects the economy of a county and destroys its cultural heritage. It poses a threat to the concept of Constitutional Governance and shacks the very foundation of democracy and the rule of law. It threatens the security of the societies undermining the ethical values and justice jeopardizing sustainable development. Corruption devalues human rights, chokes development and corrodes the moral fabric of society. It causes considerable danger to the national economy, national interest and the image of the country…“
3. The Constitution Bench of the Hon’ble Apex Court in Subramanian Swamy Vs. CBI reported in (2014) 8 SCC 682, while striking down 6A of the Delhi Special Police Establishment Act, 1946 has condemned corruption as follows,
”… Corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification which has been made in section 6A because the role of law in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned to through such a legislative measure through that corrupt public servants have to face very serious consequences…”
II. Historical Background of Corruption Laws in the words of the Apex Court:-

4. The Hon’ble Apex Court in a case called State of MP Vs Ram Singh reported in (2000) 5 SCC 88 at paragraphs 8 and 9 have dealt with the serious and irreparable adverse impact caused by corruption in a civilized society and the historical background of compelling circumstances under which the enactment of the Prevention of Corruption Act was enacted at paragraphs 8,9, 10 and 11 which are quoted below:-
“…8. Corruption in a civilised society is a disease like cancer, which if not detected in time, is sure to maliganise (sic) the polity of the country leading to disastrous consequences. It is termed as a plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti-people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence — shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society.

9. The menace of corruption was found to have enormously increased by the First and Second World War conditions. Corruption, at the initial stages, was considered confined to the bureaucracy which had the opportunities to deal with a variety of State largesse in the form of contracts, licences and grants. Even after the war the opportunities for corruption continued as large amounts of government surplus stores were required to be disposed of by the public servants. As a consequence of the wars the shortage of various goods necessitated the imposition of controls and extensive schemes of post-war reconstruction involving the disbursement of huge sums of money which lay in the control of the public servants giving them a wide discretion with the result of luring them to the glittering shine of wealth and property. In order to consolidate and amend the laws relating to prevention of corruption and matters connected thereto, the Prevention of Corruption Act, 1947 was enacted which was amended from time to time. In the year 1988 a new Act on the subject being Act 49 of 1988 was enacted with the object of dealing with the circumstances, contingencies and shortcomings which were noticed in the working and implementation of the 1947 Act. The law relating to prevention of corruption was essentially made to deal with the public servants, not as understood in common parlance but specifically defined in the Act.

10. The Act was intended to make effective provisions for the prevention of bribery and corruption rampant amongst the public servants. It is a social legislation intended to curb illegal activities of the public servants and is designed to be liberally construed so as to advance its object. Dealing with the object underlying the Act this Court in R.S. Nayak v. A.R. Antulay [(1984) 2 SCC 183 : 1984 SCC (Cri) 172] held: (SCC p. 200, para 18)
“18. The 1947 Act was enacted, as its long title shows, to make more effective provision for the prevention of bribery and corruption. Indisputably, therefore, the provisions of the Act must receive such construction at the hands of the court as would advance the object and purpose underlying the Act and at any rate not defeat it. If the words of the statute are clear and unambiguous, it is the plainest duty of the court to give effect to the natural meaning of the words used in the provision. The question of construction arises only in the event of an ambiguity or the plain meaning of the words used in the statute would be self-defeating.
The court is entitled to ascertain the intention of the legislature to remove the ambiguity by construing the provision of the statute as a whole keeping in view what was the mischief when the statute was enacted and to remove which the legislature enacted the statute. This rule of construction is so universally accepted that it need not be supported by precedents. Adopting this rule of construction, whenever a question of construction arises upon ambiguity or where two views are possible of a provision, it would be the duty of the court to adopt that construction which would advance the object underlying the Act, namely, to make effective provision for the prevention of bribery and corruption and at any rate not defeat it.”

11. Procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The overall public interest and the social object is required to be kept in mind while interpreting various provisions of the Act and deciding cases under it…”

III. PUBLIC SERVANTS – Meaning – Section 21 IPC:-

5. As the corruption is always related to the discharge of official duties by a public servant it is absolutely necessary to trace the meaning of public servant to find out who are all to be called as Public Servants and Section 21 of IPC immediately comes for our assistance by exhaustively describing as to who are the
Public Servants which is reproduced below:-
“Section 21 in The Indian Penal Code
21. “Public servant”.—The words “public servant” denote a person falling under any of the descriptions hereinafter following; namely:—
(Second) —Every Commissioned Officer in the Military, [Naval or Air] Forces of India];
[(Third) —Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;]
(Fourth) — Every officer of a Court of Justice [(including a liquidator, receiver or commissioner)] whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties;
(Fifth) — Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;
(Sixth) — Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;
(Seventh) —Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;
(Eighth) — Every officer of [the Government] whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;
(Ninth) — Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of [the Government], or to make any survey, assessment or contract on behalf of [the Government], or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of [the Government], or to make, authenticate or keep any document relating to the pecuniary interests of [the Government], or to prevent the infraction of any law for the protection of the pecuniary interests of [the Government];
(Tenth) — Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;
[(Eleventh) —Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;]
[(Twelfth) —Every person—
(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956).] Illustration A Municipal Commissioner is a public servant. Explanation 1.—Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not. Explanation 2.—Wherever the words “public servant” occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation. [Explanation 3.—The word “election” denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election.”
III (A). Chapter IX of the IPC – Public Servants – Sections 161-171 IPC:-

6. Chapter IX of the IPC contains sections 161 to 171 deals with the offences committed by the public servants or offences related to the public servants. Sections 161 to 165A dealing with the gratification other than legal enumeration in respect of an official act of the public servant were repealed by section 31 of the Prevention of Corruption of 1988 (49 of 1988).

7. Section 166 IPC mandatorily warns that a Public Servant disobeying law with an intention to cause injury to any person shall have to be punished with simple imprisonment for a term which may extent to 1 year or with fine or with both.

8. Section 166A IPC says that whoever being a Public Servant knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter or knowingly disobeys to the prejudice of any person, any other direction of the law regulation the manner in which he shall conduct such investigation or fails to record any information given to him under subsection 1 of section 154 of the Code of Criminal Procedure, 1973 (2 of 1974) in relation to cognizable offence punishable under Section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E, or section 509 shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.

9. Section 166 B punishes the persons for non-treatment of victim, who are in charge of the hospital public or private whether run by the Central Government, the State Government, Local bodies or any other person with imprisonment for a term which may extend to one year of with fine or with both.

10. Section 167 punishes the public servant framing an incorrect document with an intention to cause injury with the punishment of imprisonment for a term which may extent to three years or with fine or with both.

Sections 168 and 169 – Not to purchase or bid for certain property:-

11. Sections 168 to section 169 of IPC quoted below are more important provisions as they are intended to deter any public servant and prevent them from involving in corrupt practices to enrich themselves and they are reproduced below for our immediate reference,
“Section 168 in The Indian Penal Code
168. Public servant unlawfully engaging in trade —Whoever, being a public servant, and being legally bound as such public servant not to engage in trade, engages in trade, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
Section 169 in The Indian Penal Code
169. Public servant unlawfully buying or bidding for property
— Whoever, being a public servant, and being legally bound as such
public servant, not to purchase or bid for certain property, purchases or bids for that property, either in his own name or in the name of another, or jointly, or in shares with others, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both; and the property, if purchased, shall be confiscated.”
Thus, the above two sections clearly prohibit the unlawful purchase of property by a public servant and their involvement in any trade or business unlawfully.

III (B). Tamil Nadu Government Servant Conduct Rules:-

12. In this connection Rules 6 and 7 of the TN Government Servants Conduct Rules, 1973 are relevant to be quoted and accordingly they are quoted, as they deal with the Investments, lending, borrowing and Purchase of Stock, Share and the Property:-
“Rule 6 of the Tamil Nadu Government Servant Conduct Rules:-
…6. Investments, lending and borrowing – (1) No Government servant shall speculate in any stock, share or other investment.
Explanation -The habitual purchase or sale or both of shares, securities or other investments shall be deemed to be speculation within the meaning of this sub-rule.
(2) No Government servant shall make, or permit any member of his family or any person acting on his behalf to make, any investment which is likely to embarrass or influence him in the discharge of his officials duties.
(3) If any question arises as to whether any transaction is of the nature referred to in sub-rule (1) or sub-rule (2), the decision of the Government thereon shall be final.
(4) (a) No Government servant shall, save in the ordinary course of business with a bank or a firm or a Public Limited Company of standing, duly authorised to conduct banking business either himself or through any member of his family or any other person acting on his behalf –
(i) lend or borrow money, as principal or agent, to or from any person within the local limits of his authority or with whom he is likely to have official dealings, or otherwise place himself under any pecuniary obligation to such person, or
(ii) lend money to any person at interest or in a manner whereby return in money or in kind is charged or paid:
Provided that a Government servant may, give to or accept from, a relative or a personal friend, a purely temporary loan of a small amount not exceeding * “his total monthly emoluments” free of interest, or operate a credit account with a bona fide tradesman or make an advance of pay to his private employee:
“Provided further that Government servants belonging to Groups B, C and D may, with the previous sanction of the prescribed authority as provided under sub-rule (5) of rule 7, accept from a relative or a personal friend, a purely temporary loan of an amount not exceeding Rs.3,00,000/- (Rupees Three lakhs only), free of interest, exclusively for the purchase of flat or ready built house or plot for the construction of a house.
Provided also that nothing in this sub-rule shall apply in respect of any transaction entered into by a Government servant with the previous sanction of the Government.
(aa) No Government servant shall, either himself or through any member of his family or any other person acting on his behalf, except with the previous sanction of the Government, lend or borrow money to or from any private individual any amount exceeding * “ his total monthly emoluments”.
“Provided that Government servants belonging to Groups B, C and D may, with the previous sanction of the prescribed authority as provided under sub-rule (5) of rule 7, borrow money not exceeding Rs.3,00,000/- (Rupees Three lakhs only), free of interest, from any private individual exclusively for the purchase of flat or ready built house or plot or for the construction of a house”.
(b) When a Government servant is appointed or transferred to a post of such nature as would involve him in the breach of any of the provisions of sub-rule (2) or sub-rule (4), he shall forthwith report the circumstances to the Government and shall thereafter act in accordance with such order, as may be made by the Government belonging to group C and D, Government servant shall make the report referred to in this sub-clause to the Head of the Department concerned.
(5) No member of the Tamil Nadu Judicial Ministerial Service shall, without the written permission of the District Judge –
(i) take a transfer in his name of any auctionable claim, or decree, or
(ii) concern himself in any litigation in which he has no direct personal interest.
(6) Government servants of every class, except those whose duty is to supervise or audit cooperative societies, may become members of and make deposits in non-agricultural co-operative Societies including the Tamil Nadu State Co-operative Bank Limited, other Central Co-operative Banks and Urban Co-operative Banks.
(7) (a) Government servants whose duty it is to supervise or audit Cooperative societies may become members of, and make deposits in cooperative societies registered separately for their benefits:
(b) Government servants whose duty is to supervise or audit Cooperative Societies may place deposits in the Tamil Nadu State Cooperative Bank Limited or in any Central Co-operative Bank or in any Urban Co-operative Bank and avail security and surety loans from those institutions, provided that they are not engaged directly in audit or supervision of such banks.
(8) Government servants of every class may place deposits in, and purchase debentures of the Tamil Nadu Co-operative State Central Land development Bank Limited, but shall not hold any office therein or take any part in the management thereof.
(9) A Government servant may with the previous sanction of the Head of the Department, become a member of a Land Development Bank or an Agricultural Service Co-operative Society (including Farmers Service Co-operative Society, Agricultural Bank and Rural Bank) or a Primary Cooperative Marketing Society provided that he already owns land in the area within the jurisdiction of such bank or society, as the case may be, and wants to avail of the services rendered by such Bank or society but shall not hold any office therein or take any part in the management thereof;
Provided that no such sanction shall be accorded to a Government servant, if he is engaged directly in audit, administration or supervision of such bank or society, as the case may be:
(10) If a Government servant whose duty is to supervise or audit Cooperative Societies is appointed or transferred to work in any area within the jurisdiction of a Land Development Bank or an Agricultural Service Cooperative Society (including Farmers Service Co-operative Society Agricultural Bank and Rural Bank) or a Primary Co-operative Marketing Society in which he is a member, he shall at once bring the fact to the notice of his immediate superior who, if he has authority to do so, may repost the Government servant to an area outside the jurisdiction of the Bank or the society concerned, or if he has no authority to do so, submit the case for the orders of the officer having such authority.
(11) Government servants of every class including those employed in the Co-operative department may become members of Co-operative HouseBuilding Societies or House Mortgage Societies, Co-operative Housing Societies; Explanation – Co-operative house building societies aforesaid shall include all types of Cooperative societies whose object is the construction of houses for their members or the grant of loans for such construction by their members.
(12) Notwithstanding anything contained in clause (a) of sub-rule (7) a Government servant employed in the Co-operative Department may become a member of a Co-operative Stores Society so that he may obtain provisions and other articles from such society but he shall not be eligible to hold any office therein or serve on any committee appointed for the management of the affairs of such society.
(13) Notwithstanding anything contained in this rule, a Government servant may borrow money from a Co-operative society of which he is a member, provided that where the borrowing is on personal security, the surety shall be of status equal to, or higher than, that of the borrower.
(14) The prohibition against lending and borrowing of money applies to all loans, credits, advances, supply of articles or accommodation at unduly low rates, or for insufficient consideration and to sales of property for inordinately low prices.
(15) The fact that a Government servant lending money is acting as an executor, administrator or as a trustee without profit or advantage to himself shall not exempt him from the operation of this rule.
(16) A Government servant who belongs to a joint Hindu family carrying on the business of money-lending as an ancestral profession is exempted from the prohibition, provided he take, no active part in the business and is not employed in a district in which the business of the joint Hindu family is carried on.
(17) A Government servant engaged in teaching is prohibited from having pecuniary relations with any pupil or ex-pupil or parent or guardian of any pupil or ex-pupil or with the staff or establishments of the school or college in which he is employed.

III (C). Rule 7:- 7. Movable, immovable and valuable property –
Government Servant – Acquisition and Disposal of the Property:-
(1) (a) No Government servant shall, except after notice to the prescribed authority, acquire or dispose of any immovable property by lease, mortgage, purchase, sale, gift, exchange or otherwise either in his own name or in the name of any member his family.
Such a notice will be necessary even where any immovable property is acquired by any member of the family of the Government servant out of the resources of the Government servant:
Provided that the previous sanction of the prescribed authority shall be obtained if any such transaction is with a person having official dealings with the Government servant.
Provided further that the previous sanction of the prescribed authority shall not be necessary for the acquisition of immovable property in respect of house-site assigned by the Government to the Government servant.
Explanation – A Government servant is not required to give notice to the prescribed authority or seek prior permission from the prescribed authority for acquisition or disposal of immovable properties by the members of his family under clause (a), if the immovable property in question is not acquired from the resources of the Government servant concerned.
(b) Every Government Servant, for the construction or extension or acquisition of a house, shall report to the prescribed authority in the following manner:-
(i) before starting the construction or extension or entering into transaction for acquisition of a house either from out of loan or advance from the Government or others or part-final withdrawal from the Provident Fund,he shall obtain previous sanction of the prescribed authority in Form VI or VI-A, as the case may be, in Schedule I appended to these rules;
(ii) after completing the construction or extension, he shall report to the prescribed authority in Form VII in Schedule I appended to these rules.
The details in Forms VI and VII in Schedule I appended to these rules shall be furnished wherever it is possible to do so. Where, however, it is not possible to furnish details, the Government servant shall mention the covered area on which the building is erected or proposed to be erected and the estimated cost of the building.
(c) Every Government servant, shall, if he is a member of the Hindu undivided family and if the share of the Government servant in the cost of repairs made to the undivided property of the joint 9 family, out of the joint fund exceeds *Rs.50,000/- (Rupees Fifty thousand only) intimate the fact to the prescribed authority as and when such repairs are brought to his notice. *
III (D). Government Servant – Encroachment:-
1-A No Government servant shall encroach upon Government lands.
III (E). Government Servant – Movables:-
(2) A Government servant who enters into any transaction concerning any movable property exceeding # Rs.80,000/- (Rupees Eighty thousand only) in value in respect of ‘A’ Group Officers, Rs.60,000/- (Rupees Sixty thousand only) in value in respect of ‘B’ Group Officers, Rs.40,000/- (Rupees Forty thousand only) in value in respect of ‘C’ Group Officers and Rs.20,000/- (Rupees Twenty thousand only) in value in respect of ‘D’ Group Officers” whether + (by way of purchase or sale,) shall report to the prescribed authority within one month from the date of every such transaction;
Provided that the previous sanction of the prescribed authority shall be obtained if any such transaction is with a person having official dealings with the Government servant:
Provided further that a Government servant who is about to quit the local limits of his official authority may, without reference to the prescribed authority dispose of any of his movable property by circulating lists of it among the public generally or by causing it to be sold by public auction.
Explanation I – For the purpose of this sub-rule the expression
“movable property” includes the following property, namely:-
(a) Jewellary, Insurance Policies, Shares, Services and debentures; *
(b) omitted.
(c) Motor cars, Motor cycles, Horses or any other means of conveyance; and
(d) Refrigerators, Colour Television and Video Cassette Recorder.
(2-A) The prescribed authority shall dispose of the application seeking the sanction/permission referred to in sub-rules (1) and (2) within a period of six months from the date of receipt of such application from the Government Servant. If any clarifications or particulars are sought for from the Government Servant, the said period of six months shall be reckoned from the date of receipt of such clarifications or particulars. Where no order according such sanction or granting such permission is issued within the said period of six months, it shall be deemed that the prescribed authority has accorded the sanction or granted the permission on the expiry of the said period of six months and the Government Servant can acquire or dispose the immovable property; purchase or sale the movable property or commence the construction/extension of the house.

III (F). Government Servant – Submission of Return of His Assets:-
(3) Every Government servant shall submit a return of his assets and liabilities as on 31st December 1980 in Forms I to V in Schedule I appended to these rules on or before 31st March 1981 and thereafter at an interval of five years on or before the 31st day of March of the year immediately following the year to which the return relates giving the full particulars regarding:-
(a) the immovable property inherited by him, or owned or acquired by him or held by him on lease or mortgage either in his own name or in the name of any member of his family or in the name of any other person;
(b) shares, debentures and cash including bank deposits inherited by him or similarly owned, acquired or held by him; (c) other movable property inherited by him or similarly owned, acquired or held by him;
(c) other movable property inherited by him or similarly owned, acquired or held by him; and
(d) debts and other liabilities incurred by him directly or indirectly;
Provided that every Government servant shall, within three months of his first appointment to any service or post, submit his return of assets and liabilities as on his entry into service, in the above Forms and thereafter as prescribed above even though the period in which he submitted his return of assets and liabilities on his first appointment to the service or post is less than five years period.
Provided further that every Government Servant after the submission of the returns of his assets and liabilities at intervals of five years, shall submit return of his assets and liabilities annually for a last five years prior to his date of Superannuation in Forms I to V in Schedule I appended to these rules to the prescribed authority:
Provided also that the prescribed authority shall, within two months from the date of receipt of such returns from the Government servants, make a review of records of permission given after the date of submission of the previous return of his assets and liabilities and check whether they tally with the particulars furnished in the previous five year returns or annual return, as the case may be.
Explanation – In all returns, the value of item of movable property worth less than *Rs.50,000/- (Rupees Fifty thousand only ) may be added and shown as a lump sum. The value of articles of daily use such as clothes, utensils, crockery, books, etc., need not be included in such return.” #(The movable or immovable properties acquired by the members of the family of a Government servant solely with their own resources need not be included in such returns.)
(3-A) The return mentioned in sub-rule (3) shall be handled as a secret document and the provision of Rule 10, shall as far as may be, apply to the said return also.
III (G). Statement of the Movable and Immovable Properties of the Public Servant and also his Family:-
(4) The Government or any authority or officer empowered by them in this behalf or the prescribed authority may, at any time, by general or special order, require Government servant to submit within a period specified in the order a full and complete statement of such movable or immovable property held or acquired by him or by any member of his family as may be specified in the order. Such statement shall, if so required by the Government or by the authority or officer so empowered or the prescribed authority include details of the means by which or the source from which such property was acquired:
Provided that the prescribed authority may exercise the power to call for property statements under the sub-rule where a specified vigilance enquiry calls for it.
(5) (a) The prescribed authority for the purposes of this rule shall be –
(i) the Government in the case of a Head of a Department;
(ii) (a) All Collectors;
(b) District Judges;
(c) District Magistrates;
(d) Principal Judge, City Civil Court, Madras;
(e) Chief Judge, Court of Small Causes, Madras;
(f) Chief Presidency Magistrate, Madras; and
(g) All Law Officers in the City (excluding Official Assignee); in respect of Government servants belonging to Group C & D under their administrative control; and
(iii) All Collectors in respect of the following categories of posts in the Survey and Land Records Department in the districts and the Director of Survey and Settlement, Madras in respect of the said categories in the offices of the Joint Director of Survey and Land Records and Central Survey Office including the Photo Zinco Press, Madras:-

1. Junior Draftsman, Grades I and II.
2. Field Surveyors.
3. Deputy Surveyors.
4. Junior Assistants.
5. Assistants.

(iv) The Head of the Department concerned in other cases;
Provided that a Head of the Department may delegate his powers under this rule specifically to any one of the Second Level Officers in Department retaining such reserve power with him as he may deem fit.
(b) in respect of a Government servant on foreign service or on deputation to any other Government, the prescribed authority shall be the parent department on the cadre on which such Government Servant is borne.
(6) Whenever a Government servant by inheritance, succession or bequest becomes possessed of immovable property in the district in which he is employed or of such interest in such immovable property as is contemplated by this rule, he shall communicate all particulars thereof through the usual channel to the prescribed authority.
(7) * Omitted.
(8) If a Government servant receives an order of transfer to a district in which he possesses or has an interest in immovable property he shall at once bring the fact to the notice of his immediate official superiors.
(9) The authority which maintains the Personal files and Record Sheets shall maintain registers groupwise in respect of all Government servants working under its administrative control in the Form in Schedule II appended to these rules, showing all immovable properties held by each of them, and shall revise them with reference to the particulars furnished by the Government servant in subsequent returns as prescribed in sub-rule (3).
(10) Any attempt to mislead and any failure to give full and correct information shall render the Government servant concerned liable to severe disciplinary action.
(11) Sanction shall on no account be accorded for the purchase of land for any commercial purpose in any part of India, by a person employed, or concerned, in the collection of revenue or the administration of justice.
(12) The restrictions on the acquisition and possession of immovable property shall apply in the acquisition and possession of any personal interest in such property and to the acquisition and possession of such property by a Government servant in the name of any other person, but not to the acquisition or possession of an interest as trustee, executor or administrator only.
(13) Except in accordance with the Standing Orders of the Board of Revenue, no Government land shall be sold or granted on lease to any Government servant, whether in permanent or temporary employ.

III (H). Acquisition of Land in the Revenue District in which he is serving:-
(14) (a) A Government servant shall not be allowed to acquire land, except house-site or ready built house , for any purpose within the revenue district in which he is serving. Even after his transfer from that district, he shall not be allowed to acquire land, except house-site or ready built house, within that district for two years from the date of his transfer:
Provided that a Government servant may, subject to Clause (a) of sub-rule (1), acquire housesite or ready built house in the Revenue district in which he is or has been serving.
(b) A Government servant may usually be permitted to acquire immovable property outside the revenue district in which he is serving. But when on transfer to a district in which he holds immovable property, a Government servant makes the report required by sub-rule (17) the authority responsible shall ordinarily transfer him to another district:
Provided that a Government servant, who is transferred from one revenue district to another revenue district shall not be allowed to acquire land except house-site or ready built house for any purpose within the revenue district from which he has been transferred, for two years from the date of his transfer.
(c) An annual statement shall be submitted to the Government by the Board of Revenue and by other heads of departments directly under the Government not later than the 31st March in each year, of cases in which special permission has been granted by the head of a department for –
The retention by a Government servant of immovable property in the district to which he has been transferred.
Similar returns shall be submitted to the Board of Revenue or the head of the Department by subordinate officers to whom powers of sanction have been granted.
The returns submitted to the Government by the Board of Revenue and heads of departments shall not include cases disposed of by officers subordinate to them.
(d) In clauses (a), (b) and (c) “revenue district” and “district” mean –
“(i) in the case of Sub-Registrars, Clerks, Record Clerks and Last Grade Government Servant in the Registration department the Registration sub-district and in the case of District Registrars in the Registration Department, the registration district.”
(ii) in the case of Sub-Inspectors in the preventive branches of the Excise or Prohibition Department, the “Excise or Prohibition Circle”;
(iii) in the case of members of subordinate services employed in the Public Works Department other than members of the Tamil Nadu General Subordinate Service and the Tamil Nadu Last Grade Service, the Public Works Department sub-division; and
(iv) in the case of members of Tamil Nadu Forest Service and the Tamil Nadu Forest Subordinate Service, the forest division.
(e) Nothing contained in clause (a) to (d) shall apply to the acquisition of land including housesites through the Tamil Nadu State Housing Board Act,1961 (Tamil Nadu Act 17 of 1961), or any Housing Unit established by the said Board or a Society registered or deemed to be registered under the Tamil Nadu Cooperative Societies Act,1961 (Tamil Nadu Act 53 of 1961).
(f) Nothing contained in clause (b) shall apply in cases where the property concerned is a house constructed or inherited by the Government servant.
(15) In the case of a family governed by the Marumakkathayam or Aliyasanthana Law, a Junior member who is a Government servant shall not ordinarily be required to obtain sanction when immovable property is acquired by the managing member on behalf of the family, but this exception shall not apply to any acquisition, eventhough made in the name of the Karnavan or Yejaman if it is shown that it is really intended to the self-acquired property of the Government servant.
(16) Except with the sanction of the Government, a Government servant in the revenue or judicial department is hereby prohibited from purchasing, directly or indirectly, any kind of property, movable or immovable, at a sale on account of Government dues, or under the orders of the Court, within the district in which he is, for the time being, employed.
(17) The annual return shall include all immovable property acquired or registered in the name of the Government servant either on his own account or as a trustee, executor or administrator, or temple mirasdar, or acquired or registered in the name of or held or managed by his wife or by any other member of his family living with, or in any way dependent on him. In the case of a Government servant who follows the Marumakkathayam or Aliyasanthana Law, the statement shall include acquisition of immovable property by his consort…”

13. In view of the above provisions of law, the properties of the public servants acquired after assumption of their office as public servants can easily be found out once they are required to furnish their statements of accounts, property details not only of themselves but also those details of their spouse, son, daughter, brother, sister and their parents at the time of their assumption of office as public servants. The properties acquired after assumption of office by the public servants have to be presumed to be disproportionate assets only unless and otherwise the contrary is proved by the public servants that they are not disproportionately earned by the public servants even in their name or in the name of their family members or by they themselves. Till the contrary is proved the public servant cannot be permitted to dispose of the properties acquired after their assumption of office.

14. The public servants are required to be filed the statement of properties acquired subsequent to their entry into service for every two years to their disciplinary authority and there should be a separate wing in the department to verify and certify as to whether those details are correct or incorrect.

15. It is to be noted that the above stringent provisions of law, day in and day out, the complaints against the Public Servants for corruption are getting alarmingly increased. Though there is no official information available regarding the intrusion and impact of black money in India as per the information furnished under the Right to Information Act filed in the Apex court in one of the writ petitions preferred there that the total value of black money in India as on that date in the year of 2018 was 900 lakh crores of Rupees.

16. According to an Article published in the Economic Times in the year 2018 the total amount of Indian rupees in Swiss and other offshore banks was around 300 lakh crores. It is easily presumable that with the offshore money the poverty in India can be completely eradicated for several decades. In the above background of the above statistical figures, it was felt that more stringent provisions were to be inserted in the existing laws in the Prevention of Corruption and enactment of new laws to curb corruption with iron hand. The Prevention of Corruption Act, 1947 was amended in the year of 1964 based on the recommendations of the Santhanam Committee.

17. There are provisions in chapter IX of Indian Penal Code as dealt with above to deal with public Servants and those who abet them by way of criminal misconduct. There are also provisions in the Criminal Law Amendment Ordinance, 1944 to enable attachment of ill-gotten wealth obtained to corrupt means including from transferees of such wealth. The 1988 bill seeks to incorporate all these provisions with modifications so as to make the provisions more effective in compatting in corruption among Public Servants. The Prevention of Corruption Bill having been passed by both the houses of parliament received the assent of the President on
09.09.1988 and published in the Gazette of India ( Extraordinary II, section I, dated 12.09.1988) it came to force on 09.09.1988. The historical background of corruption law is narrated in short below:-
“In 1860 the Indian Penal Code was enacted and it defined and provided punishment for the offences of Bribery and corruption prevalent amongst public servants, During the World War II (w.e.f. 01.09.1939 to 02.09.1945), it was felt that the existing law in the Indian Penal Code was not adequate to meet the situation and exigencies of the time and an imperative necessity was felt to make a special legislation with a view to eradicate the evil of bribery and corruption and thereby the Prevention of Corruption Act, 1947 was enacted and for the first time the aforesaid Act was meant for more effective prevention of bribery and corruption and it was later on amended thrice; first of all by the Criminal Law Amendment Act, 1952. thereafter in 1964 by the Anti-Corruption Laws (Amendment) Act, 1964 based on the recommendations of the Santhanam Committee and subsequently in 1967 by the Anti-Corruption Laws (Amendment) Act. 1967

The aforesaid Act of 1947 and subsequent amendments were found to be inadequate to deal with the offence of corruption efficiently and effectively. From time to time amendments had to be brought in, to cope up with the existing situation and finally to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith. The Prevention of Corruption Act, 1988 was enacted consolidate the provisions of the Prevention of Corruption Act, 1947, some sections of the Indian Penal Code, the Criminal Procedure Code, and the Criminal Law (Amendment) Act, 1952. This Act has been amended varyingly to meet the requirements. The existing provisions of the Indian Penal Code and the Code of Criminal Procedure were found inadequate to tackle the problem of bribery so the basic idea was to bring all relevant provisions in a single Act, However, the need of this kind of Act arose and the Prevention of Corruption Bill was introduced and passed later.”

Complaint of Corruption by any Citizen and Sanction for Prosecution:-
18. Realizing the danger of fast spread corruption like COVID, the Hon’ble Apex Court in Subramanian Swamy Vs Manmohansingh reported in (2012) 3 SCC 64 permitted every citizen to come out with a complaint against a public servant and the sanction for prosecution should be granted altogether within 3+1 months in case
of such complaint. In Subramaninan Swamy case No. 2 reported in (2014) 8 SCC 682, the Hon’ble Apex Court has chosen to declare more or less the similar provisions to
Section 19 of the Prevention of Corruption Act in Delhi Special Police Establishment Act, 1946, providing for getting sanction as unconstitutional and ultravires.
III (I). Prevention of Corruption (Amendment) Act, 2018 – Attachment of the Properties:-
19. In the long-drawn battle against the corruption even the 1988 Act was felt to be ineffective and consequently Prevention of Corruption (Amendment) Act, 2018, 26.07.2018 was enacted by the parliament in the 69th year of the Republic of India with the following statements of objects and reasons.
“Statement of Object and Reasons
The Prevention of Corruption Act. 1988 provides for prevention of corruption and for matters connected therewith. The ratification by India of the United Nations Convention Against Corruption, the international practice on treatment of the offence of bribery and corruption and judicial pronouncements have necessitated a review of the existing provisions of the Act and the need to amend it so as to fill in gaps in description and coverage of the offence of bribery so as to bring it in line with the current international practice and also to meet more effectively, the country’s obligations under the aforesaid Convention. Hence, the present Bill.

2. The salient features of the Bill, inter alia, are as follows:-

(a) Section 7 of the Act at present covers the offence of public servant taking gratification other than legal remuneration in respect of an official act. The definition of offence is proposed to be substituted by a new comprehensive definition which covers all aspects of passive bribery including the solicitation and acceptance of bribe through intermediaries and also acts of public servants acting outside their competence;

(b) the Act at present does not contain any provisions directly dealing with active domestic briber that it, the offence of giving bribe. Section 12 of the Act which provides for punishment for abetment of offences defined in section 7 or section 11, covers the offence indirectly. Section 24 provides that a statement made by a bribe giver in any proceeding against a public servant for an Hence under sections 7 to 11, 13 and 15 of the Act shall not subject him to prosecution under section 12. Experience has shown that in a vast majority of cases, the bribe-giver goes scot free by taking resort to the provisions of section 24 and it becomes increasingly difficult to tackle consensual bribery. The aforesaid Convention enjoins that the promise, offering or giving to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his ar her official duties, be made a criminal offence. Accordingly, it is proposed to substitute a new section 8 to meet the said obligation;

(c) as the proposed new definitions of bribery, both as regards the solicitation and acceptance of undue advantage and as regards the promise, offering or giving, to a public official, directly or indirectly, of an undue advantage, are found to be comprehensive enough to cover all offences presently provided in section 8 which covers taking gratification, in order, by corrupt or illegal means, to influence public servant; section 9 which coven taking gratification, for exercise of personal influence with public servant; section 10 which provides for punishment for abetment by public servant of offences defined in section 8 or section 9; and section 11 which provides for public servant obtaining valuable thing without consideration from person concerned in proceeding or business transacted by such public servant; and also the offences presently defined in clauses (a), (b) and (d) of sub-section (1) of section 13 of the Act which covers criminal misconduct by a public servant, it is proposed to omit the said sections;

(d) it is proposed to substitute section 9 to provide punishment for the offence relating to bribing a public servant by a commercial organisation. A commercial organisation will be guilty of this offence if any person associated with it offers, promises or gives a financial or other advantage to a public servant intending to obtain or retain business or some advantage in the conduct of business for the commercial organisation. The proposed section 10 provides for punishment of persons in charge of a commercial organisation which has been guilty of the offence under the proposed section 9: (e) section 12 at present provides for punishment for abetment of offences defined in section 7 or section 11. It is proposed to substitute section 12 of the Act to provide punishment for abetment of all offences under the Act;

(f) it is proposed to substitute sub-section (1) of section 13 with a new subsection so as to omit the existing clauses (a), (b) and (d) of sub-section (1) as mentioned above: to incorporate the element of intentional enrichment in the existing clause (e) relating to possession of disproportionate assets by a public servant; and to modify the definition of “known sources of income as contained in Explanation, to mean income received from any lawful source, that is, by doing away with the requirement of intimation in accordance with any law, rules or orders applicable to a public servant;

(g) section 14 at present provides for habitual commission of offences under sections 8, 9 and 12. It is proposed to substitute section 14 of the Act to provide punishment for habitual commission of all offences under the Act;

(h) the Prevention of Corruption Act, at present, does not specifically provide for the confiscation of bribe and the proceeds of bribery. A Bill, namely, the Prevention of Corruption (Amendment) Bill, 2008, to amend the Prevention of Corruption Act, 1988, providing, inter alia, for insertion of a new Chapter IVA in the Prevention of Corruption Act for the attachment and forfeiture of property of corrupt public servants on the lines of the Criminal Law (Amendment) Ordinance, 1944, was introduced in the Lok Sabha on 19th December, 2008 and was passed by the Lak Sabha on 23rd December, 2008. However, the said Bill lapsed due to dissolution of the Fourteenth Lok Sabha. It is proposed to insert similar provisions on the lines of the 2008 Bill in the Prevention of Corruption Act;

(i) The Prevention of Corruption (Amendment) Bill, 2008 had proposed an amendment to section 19 of the Act on the lines of section 197 of the Code of Criminal Procedure, 1973 for extending protection of prior sanction of the Government or competent authority after retirement or demitting of office by a public servant so as to provide a safeguard to a public servant from vexatious prosecution for any bona fide omission or commission in the discharge of his official duties. The said Bill having lapsed, this protection is, at present, not available for a person who has ceased to be a public servant. Section 19 is, therefore, proposed to be amended to provide the said protection to the persons who ceased to be public servants on the lines of the said Bill. Further, in the light of a recent judgment of the Supreme Court, the question of amending section 19 of the Act to lay down clear criteria and procedure for sanction of prosecution. including the stage at which sanction can be sought, timelines within which order has to be passed, was also examined by the Central Government and it is proposed to incorporate appropriate provisions in section 19 of the Act.

(j) Section 6A of the Delhi Special Police Establishment Act, 1946 contains a protection of prior approval of the Central Government in respect of officers working at policy making levels in the Central Government before any inquiry or investigation is conducted against them by the Delhi Special Police Establishment. The basic principle behind the protection under section 19 of the Prevention of Corruption Act, 1988 and section 6A of the Delhi Special Police Establishment Act. 1946, being the same, namely, protection of honest civil servants from harassment by way of investigation or prosecution for things done in bona fide performance of public duty, it is felt that protection under both these provisions should be available to public servants even after they cease to be public servants or after they cease to hold sensitive policy level positions, as the case may be. Accordingly, it is proposed to amend section 6A of the Delhi Special Police Establishment Act, 1946 for extending the protection of prior approval of the Central Government before conducting any inquiry or investigation in respect of offences under the Prevention of Corruption Act, 1988, to civil servants holding such senior policy level positions even after they cease to hold such positions due to reversion or retirement or other reasons.

3. The Bill seeks to achieve the above objective.”

IV (A). Section 18A inserted under the Prevention of Corruption Act, 1988 – Attachment of the Property:-
20. Among the various provisions Section 18A introduced by the Act 16 of 2018 with effect from 26.07.2018 historically is important as it is for the first time after independence under the Prevention of Corruption Act, inserted to attach and confiscate money or property procured by means of an offence under the Act.
IV (B). Section 18A – Criminal Law Amendment Ordinance, 1944 and the Prevention of Money Laundering Act, 2002:-
18A. Provisions of Criminal Law Amendment Ordinance, 1944 to apply to attachment under this Act.—(1) Save as otherwise provided under the Prevention of Money Laundering Act, 2002 (15 of 2003), the provisions of the Criminal Law Amendment Ordinance, 1944 (Ord. 38 of 1944) shall, as far as may be, apply to the attachment, administration of attached property and execution of order of attachment or confiscation of money or property procured by means of an offence under this Act.
(2) For the purposes of this Act, the provisions of the Criminal Law
Amendment Ordinance, 1944 (Ord. 38 of 1944) shall have effect, subject to
the modification that the references to “District Judge” shall be construed as references to “Special Judge”.]
21. Thus, section 18A speaks about the additions to the Prevention of Money laundering Act, 2002 and the enforcement of the procedure prescribed under Criminal law Amendment (Ordinance) Act, 1944 (ordinance 38 of 1944) for the attachment of properties of any person who has committed any scheduled offence. The above referred ordinance contains 15 provisions and out of 15 provisions sections 3, 4, 5, 6, 7, 8 and 9 are relevant to the issue in hand, and hence, they are reproduced here:-
“3. Application for attachment of property. – (1) Where the [State Government or, as the case may be, the Central Government], has reason to believe that any person has committed (whether after the commencement of this Ordinance or not) any scheduled offence, the [State Government or, as the case may be, the Central Government]may, whether or not any Court has taken cognizance of the offence, authorise the making of an application to the District Judge within the local limits of whose jurisdiction the said person ordinarily resides or carries on business, for the attachment, under this Ordinance of the money or other property which the [State Government or, as the case may be, the Central Government] believes the said person to have procured by means of the offence, or if such money or property cannot for any reason be attached, or other property of the said person of value as nearly as may be equivalent to that of the aforesaid money or other property.
(2) The provisions of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), shall apply to proceedings for an order of attachment under this Ordinance as they apply to suits by the Government.
(3) An application under sub-section (1) shall be accompanied by one or more affidavit, stating the grounds on which the belief that the said person has committed any scheduled offence is founded, and the amount of money or value of other property believed to have been procured by means of the offence. The application shall also furnish
(a) any information available as to the location for the time being of any such money or other property, and shall, if necessary, give particulars, including the estimated value, of other property of the said person;
(b) the names and addresses of any other persons believed to have or to be likely to claim, any interest or title in the property of the said person.

IV (C). Ad interim Attachment:-
4. Ad interim Attachment. – (1) Upon receipt of an application under section 3, the District Judge shall, unless for reasons to be recorded in writing he is of the opinion that there exist no prima facie grounds for believe that the person in respect of whom the application is made has committed any scheduled offence or that he has procured thereby any money or other property, pass without delay an ad interim order attaching the money or other property alleged to have been so procured, or if it transpires that such money or other property is not available for attachment, such other property of the said person of equivalent value as the District Judge may think fit:
Provided that the District Judge may if he thinks fit before passing such order, and shall before refusing to pass such order, examine the person or persons making the affidavit accompanying the application.
(2) At the same time as he passes an order under sub-section (1), the District Judge shall issue to the person whose money or other property is being attached, a notice, accompanied by copies of the order, the application and affidavits and of the evidence, if any, recorded, calling upon him to show cause on a date to be specified in the notice why the order of attachment should not be made absolute.
(3) The District Judge shall also issue, accompanied by copies of the documents accompanying the notice under sub-section (2), to all persons represented to him as having or being likely to claim, any interest or title in the property of the person to whom notice is issued under the said subsection calling upon each such person to appear on the same date as specified in the notice under the said sub-section and make objection if he so desires to the attachment of the property or any portion thereof on the ground that he has an interest in such property or portion thereof.
(4) Any person claiming an interest in the attached property or any portion thereof may, notwithstanding that no notice has been served upon him under this section, make an objection as aforesaid to the District Judge at any time before an order is passed under sub-section (1) or sub-section
(3), as the case may be, of section 5.

IV (D). Investigations of objections to Attachment:-
5. Investigations of objections to Attachment. – (1) If no cause is shown and no objections are made under section 4 on or before the specified date, the District Judge shall forthwith pass an order making the ad interim order of attachment absolute.
(2) If cause is shown or any objections are made as aforesaid, the District Judge shall proceed to investigate the same, and in so doing, as regards the examination of the parties and in all other respects he shall, subject to the provisions of this Ordinance, follow the procedure and exercise all the powers of a Court in hearing a suit under the Code of Civil Procedure, 1908 (5 of 1908) and any person making an objection under section 4 shall be required to adduce evidence to show that at the date of the attachment he had some interest in the property attached.
(3) After investigation under sub-section (2), the District Judge shall pass an order either making the ad interim order of attachment absolute or varying it by releasing a portion of the property from attachment or withdrawing the order:

Provided that the District Judge shall not
(a) release from attachment any interest which he is satisfied that the person believed to have committed a scheduled offence has in the property, unless he is also satisfied that there will remain under attachment an amount of the said persons property of value not less than that of the property believed to have been procured by the said person by means of the offence, or
(b) withdraw the order of attachment unless he is satisfied that the said person had not, by means of the offence, procured any money or other property.

IV (E). Attachment of property of mala fide Transferees:-
6. Attachment of property of mala fide Transferees. – (1) Where the asset available for attachment of a person believed to have committed scheduled offence are found to be less than the amount or value which he is believed to have procured by means of such offence, and where the District Judge is satisfied, by affidavit or otherwise, that there is reasonable cause for believing that the said person has, after the date on which the offence is alleged to have been committed, transferred (whether after the commencement of this Ordinance or not) any of his property otherwise than in good faith and for consideration, the District Judge may by notice, require any transferee of such property (whether or not he received the property directly from the said person) to appear on a date to be specified in the notice and show cause why so much of the transferees property as is equivalent to the proper value of property transferred should not be attached.
(2) Where the said transferee does not appear and show cause on the specified date, or where after investigation in the manner provided in subsection (2) of section 6, the District Judge is satisfied that the transfer of the property to the said transferee was not in good faith and for consideration, the District Judge shall order the attachment of so much of the said transferees property as is, in the opinion of the District Judge, equivalent to the proper value of the property transferred.

IV (F). Execution of Order of Attachment:-

7. Execution of orders of attachment. – An order of attachment of property under this Ordinance shall be carried into effect so far as may be practicable in the manner provided in the Code of Civil Procedure, 1908 (5 of 1908) for the attachment of property in execution of a decree.
IV (G). Security in lieu of Attachment:-

8. Security in lieu of Attachment. – Any person whose property has been or is about to be attached under this Ordinance may, at any time apply to the District Judge to be permitted to give security in lieu of such attachment and where the security offered and given is in the opinion of the District Judge satisfactory and sufficient, he may withdraw or, as the case may be, refrain from passing, the order of attachment.

9. Administration of attached property. – (1) The District Judge may, on the application of any person interested in any property attached under this Ordinance and after giving the agent of the [State Government or, as the case may be, the Central Government] an opportunity of being heard, make such orders as the District Judge considers just and reasonable for
(a) providing from such of the attached property as the applicant claims an interest in such sums as may be reasonably necessary for the maintenance of the applicant and of his family, and for the expenses connected with the defence of the applicant where criminal proceedings have been instituted against him in any Court for a scheduled offence;
(b) safeguarding so far as may be practicable the interests of any business affected by the attachment, and in particular, the interests of any partners in such business.
(2) Where it appear to the District Judge to be just and convenient, he may by order appoint a receiver to manage any property attached under this
Ordinance in accordance with such instructions as the District Judge may,
from time to time, think fit to give, and where a receiver is so appointed, the provisions of rules 2, 3, 4 and 5 of Order XL of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable.
V. Prevention of Money Laundering Act, 2002:-

22. Now coming to the Prevention of Money Laundering Act, 2002, Sections 3, 4, 5 are relevant and hence, they are reproduced below:-

“Section 3. Offence of money-laundering.
Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the 1[proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering.
[Explanation.–For the removal of doubts, it is hereby clarified that,– (i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:–
(a) concealment; or
(b) possession; or (c) acquisition; or
(d) use; or
(e) projecting as untainted property; or (f) claiming as untainted property, in any manner whatsoever;
(ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.]”
4. Punishment for money-laundering.—Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine :
Provided that where the proceeds of crime involved in money-
laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words “which may extend to seven years”, the words “which may extend to ten years” had been substituted.

V (B). Attachment of property involved in Money-Laundering:-

5. Attachment of property involved in money-laundering.— [(1) Where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that—
(a) any person is in possession of any proceeds of crime; and
(b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed:
Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under Section 173 of the Code of Criminal Procedure, 1973 (2 of
1974), or a complaint has been filed by a person authorised to investigate
the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report complaint has been made or filed under the corresponding law of any other country:
Provided further that, notwithstanding anything contained in 30[first proviso], any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not attached immediately under this Chapter, the non-attachment of the property is likely to frustrate any proceeding under this Act.]
[Provided also that for the purposes of computing the period of one hundred and eighty days, the period during which the proceedings under this section is stayed by the High Court, shall be excluded and a further period not exceeding thirty days from the date of order of vacation of such stay order shall be counted.]
(2) The Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed.
(3) Every order of attachment made under sub-section (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under 32[sub-section (3)] of Section 8, whichever is earlier.
(4) Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment.
Explanation.—For the purposes of this sub-section, “person interested”, in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property.
(5) The Director or any other officer who provisionally attaches any property under sub-section (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority.
V (C). Sections 8 & 9 of PMLA – Adjudication and Attachment:-

23. The Sections 8 and 9 deal with the procedure to be followed in case of attachment and confiscation and hence they are reproduced below for our convenience:-
Adjudication Clause:-
8. Adjudication.—(1) On receipt of a complaint under sub-section (5) of Section 5, or applications made under sub-section (4) of Section 17 or under sub-section (10) of Section 18, if the Adjudicating Authority has reason to believe that any person has committed an 35[offence under Section 3 or is in possession of proceeds of crime], it may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached under sub-section (1) of Section 5, or, seized 36[or frozen] under Section 17 or Section 18, the evidence on which he relies and other relevant information and particulars, and to show cause why all or any of such properties should not be declared to be the properties involved in moneylaundering and confiscated by the Central Government:
Provided that where a notice under this sub-section specifies any property as being held by a person on behalf of any other person, a copy of such notice shall also be served upon such other person:
Provided further that where such property is held jointly by more than one person, such notice shall be served to all persons holding such property.
(2) The Adjudicating Authority shall, after—
(a) considering the reply, if any, to the notice issued under sub-section
(1);
(b) hearing the aggrieved person and the Director or any other officer authorised by him in this behalf; and
(c) taking into account all relevant materials placed on record before him,
by an order, record a finding whether all or any of the properties referred to in the notice issued under sub-section (1) are involved in money-laundering:
Provided that if the property is claimed by a person, other than a person to whom the notice had been issued, such person shall also be given an opportunity of being heard to prove that the property is not involved in money-laundering.
(3) Where the Adjudicating Authority decides under sub-section (2) that any property is involved in money-laundering, he shall, by an order in writing, confirm the attachment of the property made under sub-section (1) of Section 5 or retention of property or 37[record seized or frozen under Section 17 or Section 18 and record a finding to that effect, whereupon such attachment or retention or freezing of the seized or frozen property] or record shall—
(a) continue during 38[investigation for a period not exceeding 39[three hundred and sixty-five days] or] the pendency of the proceedings relating to any 40[offence under this Act before a court or under the corresponding law of any other country, before the competent court of criminal jurisdiction outside India, as the case may be; and]
[(b) become final alter an order of confiscation is passed under subsection (5) or sub-section (7) of Section 8 or Section 58-B or subsection (2-A) of Section 60 by the 42[Special Court].]
[Explanation.—For the purposes of computing the period of three hundred and sixty-five days under clause (a), the period during which the investigation is stayed by any court under any law for the time being in force shall be excluded.]
(4) Where the provisional order of attachment made under sub-section (1) of Section 5 has been confirmed under sub-section (3), the Director or any other officer authorised by him in this behalf shall forthwith take the [possession of the property attached under Section 5 or frozen under sub-section (1-A) of Section 17, in such manner as may be prescribed:
Provided that if it is not practicable to take possession of a property frozen under sub-section (1-A) of Section 17, the order of confiscation shall have the same effect as if the property had been taken possession of].
[(5) Where on conclusion of a trial of an offence under this Act, the Special Court finds that the offence of money-laundering has been committed, it shall order that such property involved in the money-laundering or which has been used for commission of the offence of money-laundering shall stand confiscated to the Central Government.
(6) Where on conclusion of a trail under this Act, the Special Court finds that the offence of money-laundering has not taken place or the property is not involved in money-laundering, it shall order release of such property to the person entitled to receive it.
(7) Where the trial under this Act cannot be conducted by reason of the death of the accused or the accused being declared a proclaimed offender or for any other reason or having commenced but could not be concluded, the Special Court shall, on an application moved by the Director or a person claiming to be entitled to possession of a property in respect of which an order has been passed under sub-section (3) of Section 8, pass appropriate orders regarding confiscation or release of the property, as the case may be, involved in the offences of money-laundering after having regard to the material before it.]
[(8) Where a property stands confiscated to the Central Government under sub-section (5), the Special Court, in such manner as may be prescribed, may also direct the Central Government to restore such confiscated property or part thereof of a claimant with a legitimate interest in the property, who may have suffered a quantifiable loss as a result of the offence of money laundering:
Provided that the Special Court shall not consider such claim unless it is satisfied that the claimant has acted in good faith and has suffered the loss despite having taken all reasonable precautions and is not involved in the offence of money laundering : ]
[Provided further that the Special Court may, if it thinks fit, consider the claim of the claimant for the purposes of restoration of such properties during the trial of the case in such manner as may be prescribed.]

V (D). Properties under the PMLA:-
Section 9. Vesting of property in Central Government. – Where an order of confiscation has been made under [sub-section (5) or sub-section (7) of section 8 or section 58B or sub-section (2A) of section 60] in respect of any property of a person, all the rights and title in such property shall vest absolutely in the Central Government free from all encumbrances:
Provided that where the [Special Court or the Adjudicating Authority, as the case may be,] after giving an opportunity of being heard to any other person interested in the property attached under this Chapter, or seized [or frozen] under Chapter V, is of the opinion that any encumbrance on the property or or lease-hold interest has been created with a view to defeat the provisions of this Chapter, it may, by order, declare such encumbrance or lease-hold interest to be void and thereupon the aforesaid property shall vest in the Central Government free from such encumbrances or lease-hold interest:
Provided further that nothing in this section shall operate to discharge any person from any liability in respect of such encumbrances which may be enforced against such person by a suit for damages…”
Thus, the Prevention of Money Laundering Act, 2002, is really an enactment if properly implemented by the authorities concerned none would be dare to involve in any of the corrupt activities.
V (E). Other Enactments to curb Corruption:-

24. Apart from the above Prevention of Money Laundering Act, 2002, Foreign contribution Regulation Act, 2010, Lokpal and Lokayukta Act, 2013, Central Vigilance Commission Act, 2003, Fugitive Economic Offenders Act, 2018 and Black Money (undisclosed Foreign Income and Assets and Imposition of Tax) Act, 2015 also were enacted. Among all the enactments as already stated ordinance 1944 and Prevention of Money Laundering Act, 2002 alone are crucial to strengthen the AntiCorruption movement in India, if they are vigilantly, properly and promptly implemented.
V (F) Conclusion on Money Laundering Act, 2002 by the Apex Court:-

25. In Vijay Madanlal Choudry vs Union of India reported in 2022 SCC OnLine SC 929, dated 27.07.2022, Prevention of Money Laundering Act, 2002 was tested by the Constitutional parameters and finally after the elaborate discussion on various points the Hon’ble Apex Court has concluded as follows:-
“467. In light of the above analysis, we now proceed to summarise our conclusion on seminal points in issue in the following terms:—
(i) The question as to whether some of the amendments to the Prevention of Money-laundering Act, 2002 could not have been enacted by the Parliament by way of a Finance Act has not been examined in this judgment. The same is left open for being examined along with or after the decision of the Larger Bench (seven Judges) of this Court in the case of Rojer Mathew.
(ii) The expression “proceedings” occurring in Clause (na) of Section 2(1) of the 2002 Act is contextual and is required to be given expansive meaning to include inquiry procedure followed by the Authorities of ED, the Adjudicating Authority, and the Special Court.
(iii) The expression “investigation” in Clause (na) of Section 2(1) of the 2002 Act does not limit itself to the matter of investigation concerning the offence under the Act and is interchangeable with the function of “inquiry” to be undertaken by the Authorities under the Act.
(iv) The Explanation inserted to Clause (u) of Section 2(1) of the 2002 Act does not travel beyond the main provision predicating tracking and reaching upto the property derived or obtained directly or indirectly as a result of criminal activity relating to a scheduled offence.
(v)(a) Section 3 of the 2002 Act has a wider reach and captures every process and activity, direct or indirect, in dealing with the proceeds of crime and is not limited to the happening of the final act of integration of tainted property in the formal economy. The Explanation inserted to Section 3 by way of amendment of 2019 does not expand the purport of Section 3 but is only clarificatory in nature. It clarifies the word “and” preceding the expression projecting or claiming as “or”; and being a clarificatory amendment, it would make no difference even if it is introduced by way of Finance Act or otherwise.
(b) Independent of the above, we are clearly of the view that the expression “and” occurring in Section 3 has to be construed as “or”, to give full play to the said provision so as to include “every” process or activity indulged into by anyone. Projecting or claiming the property as untainted property would constitute an offence of money-laundering on its own, being an independent process or activity.
(c) The interpretation suggested by the petitioners, that only upon projecting or claiming the property in question as untainted property that the offence of Section 3 would be complete, stands rejected.
(d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him.
(vi) Section 5 of the 2002 Act is constitutionally valid. It provides for a balancing arrangement to secure the interests of the person as also ensures that the proceeds of crime remain available to be dealt with in the manner provided by the 2002 Act. The procedural safeguards as delineated by us hereinabove are effective measures to protect the interests of person concerned.
(vii) The challenge to the validity of sub-section (4) of Section 8 of the 2002 Act is also rejected subject to Section 8 being invoked and operated in accordance with the meaning assigned to it hereinabove.
(viii) The challenge to deletion of proviso to sub-section (1) of Section 17 of the 2002 Act stands rejected. There are stringent safeguards provided in Section 17 and Rules framed thereunder. Moreover, the pre-condition in the proviso to Rule 3(2) of the 2005 Rules cannot be read into Section 17 after its amendment. The Central Government may take necessary corrective steps to obviate confusion caused in that regard.
(ix) The challenge to deletion of proviso to sub-section (1) of Section 18 of the 2002 Act also stands rejected. There are similar safeguards provided in Section 18. We hold that the amended provision does not suffer from the vice of arbitrariness.
(x) The challenge to the constitutional validity of Section 19 of the 2002 Act is also rejected. There are stringent safeguards provided in Section 19. The provision does not suffer from the vice of arbitrariness.
(xi) Section 24 of the 2002 Act has reasonable nexus with the purposes and objects sought to be achieved by the 2002 Act and cannot be regarded as manifestly arbitrary or unconstitutional.
(xii)(a) The proviso in Clause (a) of sub-section (1) of Section 44 of the 2002 Act is to be regarded as directory in nature and this provision is also read down to mean that the Special Court may exercise judicial discretion on caseto-case basis.
(b) We do not find merit in the challenge to Section 44 being arbitrary or unconstitutional. However, the eventualities referred to in this section shall be dealt with by the Court concerned and by the Authority concerned in accordance with the interpretation given in this judgment.
(xiii)(a) The reasons which weighed with this Court in Nikesh Tarachand Shah for declaring the twin conditions in Section 45(1) of the 2002 Act, as it stood at the relevant time, as unconstitutional in no way obliterated the provision from the statute book; and it was open to the Parliament to cure the defect noted by this Court so as to revive the same provision in the existing form.
(b) We are unable to agree with the observations in Nikesh Tarachand Shah distinguishing the enunciation of the Constitution Bench decision in Kartar Singh; and other observations suggestive of doubting the perception of Parliament in regard to the seriousness of the offence of money-laundering, including about it posing serious threat to the sovereignty and integrity of the country.
(c) The provision in the form of Section 45 of the 2002 Act, as applicable post amendment of 2018, is reasonable and has direct nexus with the purposes and objects sought to be achieved by the 2002 Act and does not suffer from the vice of arbitrariness or unreasonableness.
(d) As regards the prayer for grant of bail, irrespective of the nature of proceedings, including those under Section 438 of the 1973 Code or even upon invoking the jurisdiction of Constitutional Courts, the underlying principles and rigours of Section 45 may apply.
(xiv) The beneficial provision of Section 436A of the 1973 Code could be invoked by the accused arrested for offence punishable under the 2002 Act. (xv)(a) The process envisaged by Section 50 of the 2002 Act is in the nature of an inquiry against the proceeds of crime and is not “investigation” in strict sense of the term for initiating prosecution; and the Authorities under the 2002 Act (referred to in Section 48), are not police officers as such.
(b) The statements recorded by the Authorities under the 2002 Act are not hit by Article 20(3) or Article 21 of the Constitution of India.
(xvi) Section 63 of the 2002 Act providing for punishment regarding false information or failure to give information does not suffer from any vice of arbitrariness.
(xvii) The inclusion or exclusion of any particular offence in the Schedule to the 2002 Act is a matter of legislative policy; and the nature or class of any predicate offence has no bearing on the validity of the Schedule or any prescription thereunder.
(xviii)(a) In view of special mechanism envisaged by the 2002 Act, ECIR cannot be equated with an FIR under the 1973 Code. ECIR is an internal document of the ED and the fact that FIR in respect of scheduled offence has not been recorded does not come in the way of the Authorities referred to in Section 48 to commence inquiry/investigation for initiating “civil action” of “provisional attachment” of property being proceeds of crime.
(b) Supply of a copy of ECIR in every case to the person concerned is not mandatory, it is enough if ED at the time of arrest, discloses the grounds of such arrest.
(c) However, when the arrested person is produced before the Special Court, it is open to the Special Court to look into the relevant records presented by the authorised representative of ED for answering the issue of need for his/her continued detention in connection with the offence of moneylaundering.
(xix) Even when ED manual is not to be published being an internal departmental document issued for the guidance of the Authorities (ED officials), the department ought to explore the desirability of placing information on its website which may broadly outline the scope of the authority of the functionaries under the Act and measures to be adopted by them as also the options/remedies available to the person concerned before the Authority and before the Special Court.
(xx) The petitioners are justified in expressing serious concern bordering on causing injustice owing to the vacancies in the Appellate Tribunal. We deem it necessary to impress upon the executive to take corrective measures in this regard expeditiously.
(xxi) The argument about proportionality of punishment with reference to the nature of scheduled offence is wholly unfounded and stands rejected.

26. Among the conclusions I to XXI given under paragraph 467 of the Apex Court Judgment, clause (v) of para 467 is important to be noted as under that clause only the Apex Court has categorically held that every process or activity indulged into by anyone would fall under section 3 and projecting and claiming the property as untainted property would constitute an offence of Money Laundering on its own, being an independent process as activity.

27. In view of such a wider definition given by the Hon’ble Apex Court in the above case the properties of the Public Servants accused of an offence under the Prevention of Corruption Act can very well be attached.

28. The conclusion under sub para (v) (a) to (d) dealing with the attachment of the properties of the person accused of the Scheduled Offences would definitely deter the public servants if they are properly implemented.

VI. The Corrupt Public Servants (Forfeiture of Property) Bill, 1999 kept in cold storage:-

29. While forwarding the Bill called “The Corrupt Public Servants (Forfeiture of Property) Bill” to the Union Minister of Law and Justice, Ministry of Law and Justice, Government of India by Justice B.P. Jeevan Reddy, Chairman, Law Commission of India, on February 4, 1999, he has written a covering letter which is very important to be quoted below:-

“Dear Dr. M. Thambi Durai,
I am sending herewith 166th report on “The Corrupt Public Servants (Forfeiture of Property) Bill”.
2. The subject was taken up by the Commission suo motu. In view of the fact that corruption in public life has struck deep roots in our society including its administrative apparatus, which is causing immense loss to the State, to the Nation and the public interest. There is a crying necessity for a Law providing for forfeiture of properties acquired by holders of “Public Office”. It is undeniable that the existing law viz., the Prevention of Corruption Act, 1988 which provides for confiscation of assets of public servants in excess of his known sources of income is inadequate since such forfeiture follows conviction for the relevant offences. The proposed approach is recognized by Parliament in the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1997 (SAFEMA). In order to give shape to the recommendations of the Commission, a Bill entitled “The Corrupt Public Servants (Forfeiture of Property) Bill” is also enclosed with the report. The Commission is of the considered opinion that the recommendations made by it will arm the State with an effective and powerful weapon to fight corruption which is posing a serious threat to our economy and to the security and integrity of out State.
With Regards,
Your sincerely
Sd./
B.P. Jeevan Reedy”

30. Before taking all of us to the Bill Justice B.P. Jeevan Reddy has given the outline of the Bill under the following heads namely,
1.1. The Background
1.2. The Genesis of the Report
1.3. Deleterious Effect of Corruption
1.4. Inadequacy of the Existing Law and the Proposed Measures to
Tackle the Evil of Corruption
1.5. The Proposed Approach Recognized in the (SAFEMA) Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976
1.5.1. SAFEMA applied
1.6. Constitutionality of the SAFEMA upheld by the Supreme Court
1.8. Reiteration of the Aforesaid Concept
1.9. Some Salient Features of the Proposed Bill
1.10. The Proposed Measures Supported by a Political Party and no Political Party Objected to it
1.11. Measures to Combat Corruption by OECD and Countries and Need for Stringent Measures
1.12. New Legislation Recommended

31. Among the above headlines, the Background given by Justice B.P. Jeevan Reddy at para 1.1 is relevant to be reproduced and accordingly, it is reproduced below:-
“1.1. The Background.—In a judgment delivered on May 6, 1996 (reported in the Delhi Development Authority v. Skipper Construction Co. (P) Ltd., AIR 1996 SC 2005, the Supreme Court had made the following observations—
……….a law providing for forfeiture of properties acquired by holders of ‘public office’ (including the offices/posts in the public sector corporations) by indulging in corrupt and illegal acts and deals, is a crying necessity in the present state of our society. The law must extend not only to – as does SAFEMA – properties acquired in the name of the holder of such property but also to properties held in the names of his spouse, children or other relatives and associates. Once it is proved that the holder of such office has indulged in corrupt acts, all such properties should be attached forthwith. The law should place the burden of proving that the attached properties were not acquired with the aid of monies/properties received in the course of corrupt deals upon the holder of that property as does SAFEMA whose validity has already been upheld by this Court in the aforesaid decision of the larger Constitution Bench. Such a law has become an absolute necessity, if the canker of corruption is not to prove the death-knell of this nation. According to several perceptive observers, indeed, it has already reached near-fatal dimensions. It is for the Parliament to act in this matter, it they really mean business.”

32. Like that the Genesis of the Report at para 1.2, Deleterious Effect of Corruption at para 1.3, Inadequacy of the Existing Law and the Proposed Measures to Tackle the Evil of Corruption at para 1.4, The Proposed Approach Recognized in the (SAFEMA) Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 at para 1.5, and the SAFEMA applied to at para 1.5.1 are relevant to be reproduced to throw a light on the proposed Bill which is totally kept in darkness for more than 2 decades.

VI (A). The Genesis of the Law Commission Report and the Corruption:-
“1.2. The Genesis of the Report —Based upon the observations made in and the law declared in the said judgment, the Law Commission had prepared a Working Paper and had circulated it to all political parties, to media, Bar and other organizations and bodies interested in public good. The Law Commission has received a large number of responses from a wide spectrum of society containing several suggestions and comments, all of which have been taken into account in preparing this Report.
1.3. Deleterious Effect of Corruption.—One of the essential requirements of good governance is the absence of corruption. But unfortunately, corruption has struck deep-roots in our society, including its administrative apparatus. At every rung of the administration, whether at the Centre or in the States, there are corrupt elements who are causing immense loss to the state, to the Nation and the public interest. The administrative apparatus of local authorities, public-sector corporations and Government companies has become equally bad. When a public servant is paid bribe of, say, a lakh of rupees, it is paid for the reason that the payer gets at least 10 times the benefit, if not more, and that benefit is the loss of the State and the people. It is not so much the amount of the bribe but the quantum of loss to the people and the moral degradation it involves that is more relevant. There is no respect for public money and public funds in the minds of many in the administration; public money is nobody’s money. For a small personal benefit, the corrupt are prepared to cause any amount of loss to the State and to the people. On account of corruption, many of the welfare schemes including schemes for advancement of Scheduled Tribes and other weaker sections are not able to achieve the intended results. In fact, a former Prime Minister had observed once that only about 16% of the funds meant for the welfare of the Scheduled Tribes reached them and that the remaining 84% was absorbed by the members of the administrative apparatus, politicians and other middlemen. A state has arrived where the corruption is threatening the very security and safety of the State. There is corruption in execution of projects, in awarding contracts, in making purchases, in issuance of licences and permits, in appointments, in elections and so on and so forth. There is hardly any sphere of life left untouched by corruption in our society. Surprisingly – or rather shockingly – the corrupt elements have lost all sense of shame and guilt. The societal sanction is practically nil. The corrupt elements are brazenly flaunting their ill-gotten wealth. The amounts involved in corruption are quite often astronomical. There are numerous foreign forces out to destabilise our country and undermine our economy and the corrupt elements in our governing structure are too willing to play their game for their personal gain. Thus corruption in our country today is not only immoral and shameful, it has also become anti-national and anti-social and therefore requires to be dealt with an iron hand. The Prevention of Corruption Act has totally failed in checking the corruption. In spite of the fact that India is rated as one of the most corrupt countries in the world, the number of prosecutions – and more so the number of convictions under the said Act, are ridiculously low. A corrupt minister or a corrupt top public servant is hardly ever prosecuted under the Act and even in the rare event of his being prosecuted, the prosecution hardly ever reaches conclusions. At every stage, these will be revisions and writs to stall and defeat the prosecution. Top lawyers are engaged. Some or other point is raised and the litigation goes on endlessly, thus defeating the true objective of the criminal prosecution. Unfortunately, the Courts too have come to attach more sanctity to procedure forgetting the principle underlying sections 460 to 465 of the Code of Criminal Procedure, 1973, viz., any and every infraction of procedural provision does not vitiate the final order passed and that only that violation which causes prejudice may constitute a ground for disturbing the final order passed. Indeed it must be said that criminal judicial system in this country has proved totally ineffective particularly against the rich, the influential and the powerful. It is effective, if at all, only against the poor, the destitute and the undefended. We do not, however, think it necessary to stress any further the prevalence and pernicious role of corruption in our body politic as it is an obvious and indisputable fact.
VI (B). Inadequacy of the Existing law to curb the Corruption:-
1.4. Inadequacy of the Existing Law and the Proposed Measures to Tackle the Evil of Corruption — It is true that the Prevention of Corruption Act, 1988 provides for confiscation on assets of public servant which are in excess of his known sources of income but such forfeiture can come about only after the public servant is convicted for the relevant offence [section
13(1)(e)] under the Act. There is also in vogue a pre-independence law i.e., Criminal Law Amendment Ordinance (38 of 1944) which provides for attachment of properties of a public servant who is accused of corruption. But, here again, the confiscation can come about only pursuant to and on the basis of conviction of corruption. Similar is the position under the Prevention of the Money Laundering Bill, 1998 introduced in the
Parliament recently. The Bill defines the expression “money-laundering” to
mean owning, possessing or otherwise dealing in the “proceeds of the crime”, and confiscation of proceeds of crime is possible only after a person is convicted of one or the other offence mentioned in the Schedule to the Bill. Part V of the Schedule mentions some of the offences created/recognised by the Prevention of Corruption Act, but quite significantly the offence of possession of disproportionate assets [dealt with under clause (e) of sub-section (1) of section 131 is not one of the offences mentioned in the Schedule. Perhaps, the said offence did not fit into the scheme of the Bill. Be that as it may, the fact remains that there is no law in force in this country providing for forfeiture/confiscation of the ill-gotten assets/properties of the holders of public office similar to SAFEMA. Merely sending the corrupt holders of public office to jail is no remedy; it is no solution. It doesn’t really hurt them. Unless their ill-gotten assets are forfeited to the State, the canker of corruption to really tackled. Hence, the necessity of the proposed measure.
VI (C). The Attachment of Properties of not only the Accused but also the persons mentioned in SAFEMA:-
1.5. The Proposed Approach Recognised in the SAFEMA —As a matter of fact, this approach was recognised by Parliament more than twenty years ago in the case of smugglers and violators of foreign exchange laws, when it enacted the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). The Preamble to the Act reads—
“An Act to provide for the forfeiture of illegally acquired properties of smugglers and foreign exchange manipulators and for matters connected therewith or incidental thereto;
Whereas for the effective prevention of smuggling activities and foreign exchange manipulations which are” having a deleterious effect on the national economy it is necessary to deprive persons engaged in such activities and manipulations of their ill-gotten gains;
And whereas such persons have been augmenting such gains by violations of wealth-tax, income-tax or other laws or by other means and have thereby been increasing there resources for operating in a clandestine manner;
And whereas such persons have in many cases been holding the properties acquired by them through such gains in the names of their relatives, associates and confidants;
Be it enacted by Parliament in the Twenty-sixth Year of the Republic of India as follows:”
(It may be mentioned that all the factors – and many more – mentioned in the said Preamble are present to a much greater degree in the case of corrupt holders of public office.)
VI (D). Persons to whom SAFEMA is Applicable:-
1.5.1. SAFEMA applied to—(a) persons convicted under the Customs Act and Foreign Exchange Regulation Act; (b) persons detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) and where such order has not been revoked on the report of the Advisory Board or has not been quashed by the Court. (It must be remembered that detention under COFEPOSA is neither a conviction nor is it a proof of guilt, it being merely a preventive measure. The expression ‘illegally acquired property’ is very significant and deserves to be set out in full:
“(c) “illegally acquired property”, in relation to any persons to whom this Act applies means—
(i) any property acquired by such persons, whether before or after the commencement of this Act wholly or partly out of or by means of any income, earnings or assets derived or obtained from or attributable to any activity prohibited by or under any law for the time being in force relating to any matter in respect of which Parliament has power to make laws; or
(ii) any property acquired by such person, whether before or after the commencement of this Act, wholly or partly out of or by means of any income earnings or assets in respect of which any such law has been contravened; or
(iii) any property acquired by such persons whether before or after the commencement of this Act, wholly or partly out of or by means of any income, earnings or assets the source of which cannot be proved and which cannot be shown to be a attributable to any act or thing done in respect of any matter in relation to which Parliament has no power to make laws; or
(iv) any property acquired by such person, whether before or after the commencement of this Act, for a consideration, or by any means, wholly or partly traceable to any property referred to in sub-clauses
(i) to (iii) or the income or earnings from such property; and includes—
(A) any property held by such person which would have been in relation to any previous holder thereof, illegally acquired property under this clause if such previous holder had not ceased to hold it, unless such person or any other person who held the property at any time after such previous holder or, where there are two or more such previous holders, the last of such previous holders is or was a transferee in good faith for adequate consideration;
(B) any property acquired by such person, whether before or after the commencement of this Act, for a consideration, or by any means, wholly or partly traceable to any property falling under item (A), or the income or earnings therefrom.”

VI (E). SAFEMA – Constitutionally Valid:-

33. It is to be noted that the Constitutional Validity of the SAFEMA was upheld by the Supreme Court in Attorney-General of India v. Amratlal Prajivandas, reported in (1994) 5 SCC 54. At para 1.6 of the Outline before the Bill, the Constitutionality of the SAFEMA is dealt with as follows:-
“1.6. Constitutionality of the SAFEMA (Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976) upheld by the Supreme Court.—The Act provides that where any person is believed to be in possession of illegally acquired property, the appropriate authority shall give him a notice calling upon him to show cause why the said property be not forfeited to the State (section 6). Unless the person concerned establishes that the said properties have been acquired by lawful means, the properties will be forfeited to the State (section 7). In other words, the burden of proving the lawful acquisition of such properties is placed upon him i.e., the holder of such properties, evidently for the reason that he alone should know how has he come to hold or possess the said properties (section 8). It is equally relevant to notice that the Act extends not only to the persons convicted under specified crimes and those detained under COFEPOSA , who are found in possession of illegally acquired properties but extends to their relatives and associates as well. The expression “relative” takes in not only wife but all near relatives (section 2). When the constitutionality of the said enactment was challenged on the grounds of being unjust, excessive and harsh, a Nine-Judge Constitution Bench of the Supreme Court unanimously rejected the challenge in the Attorney-General of India v. Amratlal Prajivandas, 1994 (5) SCC 54. It was explained by the Supreme Court that the idea underlying the Act is “to forfeit the illegally acquired properties of the convict/detenue irrespective of the fact that such properties are held by or kept in the name of or screened in the name of any relative or associate as defined in the said two Explanations. The idea is not to forfeit the independent properties of such relatives or associates which they may have acquired independently but only to reach the properties of the convict/detenue or properties traceable to him, wherever they are, ignoring all the transactions with respect to those properties”. It was held by the Supreme Court that the definition of the expression “illegally acquired property” is not arbitrary or over-inclusive and that having regard to the seriousness of the evil sought to be curbed, the law had to be made strict. In other words, the law must be equal to the mischief sought to be remedied. An insufficient and inadequate law is no law at all. The following observations are relevant:
“……….We see no substance in the submission that the definition is arbitrary or discriminatory nor do we see any reason for reading down the said definition to confine it to the violation of the acts referred to in section 2(2)(a) of SAFEMA. We can take note of the fact that persons engaged in smuggling and foreign exchange manipulations do not keep regular and proper accounts with respect to such activity or its income or of the assets acquired therefrom. If such person indulges in other illegal activities the position would be no different. The violation of foreign exchange laws and laws relating to export and import necessarily involves violation of tax laws. Indeed, smuggling, foreign exchange violation, it is well known fact that over the last few decades, tax evasion, drugs and crime have all got mixed-up. Evasion of taxes is integral to such activity. It would be difficult for any authority to say, in the absence of any accounts or other relevant material that among the properties acquired by smuggler, which of them or which portions of them are attributable to smuggling and foreign exchange violations and which properties or which portions thereof are attributable to violations of other laws (which the Parliament has the power to make). It is probably for this reason that the burden of proving that the properties specified in the show cause notice are not illegally acquired properties is placed upon the person concerned. May be this is the case where a dangerous disease requires a radical treatment. Bitter medicine is not bad medicine in law. It is not possible to say that definition is arbitrary or is couched in unreasonably wide terms………..”

VI (F). Recommendation of the New Legislation in the light of SAFEMA:-

34. At last, at the end of the outline at para 1.12, the commission recommended for the New Legislation in the following words:-
“1.12. New Legislation Recommended.—The Law Commission hopes and trusts that the government would take immediate steps for introducing legislation in terms of the accompanying Bill (Annexure A) and have it passed. Such a legislation would arm the State with an effective and powerful weapon to fight corruption which is sapping the fundamentals of our society and is posing a serious threat to our economy and to the security and integrity of our State.”

35. Among all, the observation of the Supreme Court while upholding the Constitutional validity of the SAFEMA reported in (1994) 5 SCC 54 is more relevant to be specifically quoted here and hence, quoted below:-
“…to forfeit the illegally acquired properties of the convict/detenue irrespective of the fact that such properties are held by or kept in the name of or screened in the name of any relative or associate as defined in the said two Explanations. The idea is not to forfeit the independent properties of such relatives or associates which they may have acquired independently but only to reach the properties of the convict/detenue or properties traceable to him, wherever they are, ignoring all the transactions with respect to those properties…”

In the Bill the provisions regarding the persons whose properties are recommended to be attached is more important and hence, it alone is reproduced below:-

VI (G). Bill in Cold Storage for the past 24 years – Website shows that it is pending:-

36. It is unfortunate to note that the above Bill even as per the Status of Law Commission Reports notified in the Department of Legal Affairs website is pending
for the past 24 years from 1999 onwards. The proposed Bill is enclosed herein for the perusal which is out and out ignored for more than 23 years at the cost of the Natural and Public Interest. If the Bill becomes the Act, we can hope that it may cause tremendous impact on the persons involved in corrupt practices as none would see that their near and dear ones are also made to suffer.

VII. Service Rules:- Absence of any provision to deal with corruption cases particularly the trap case

37. The Tamil Nadu Civil Services (D&A) Rules, Central Civil Services (Classification, Control and Appeal) Rules, 1965 and All India Services (Discipline and Appeal) Rules, 1969, provide for suspension of the persons against whom enquiry into grave charges is contemplated or pending and against the persons against whom a complaint of a criminal offence is under investigation. The rules provide for deemed suspension in case of detention in custody of the persons for more than 48 hours.

38. There is no specific provision in Service rules dealing with the suspension in case of a trap or the registration of criminal case under Prevention of Corruption Act and the disciplinary proceedings for that purpose. The corruption cases particularly, the trap cases can not be treated on par with other criminal case and hence, there must be an insertion of a specific provision dealing with trap or corruption cases in all the Service Rules. There must be a provision for the attachment of their properties and the time bound disposal of the disciplinary proceedings initiated for the corruption charges irrespective of the status of the criminal case in criminal court.

39. Though the maximum time limit can be prescribed, it is neither possible nor plausible to conclude the criminal cases on corruption by the Special Courts due to the change of the investigation officer, change of place of the defacto complainant and the witnesses and sometimes change of mind too and the overburden of the Presiding Officers of the Courts dealing with such type of cases. It is because of the said delay the public servants facing the serious criminal charge of corruption continue in their post and retire also without prejudice to the criminal case pending against them. Recently, it is learnt that a Joint Commissioner (not police department) facing criminal cases was allowed to retire honourably even when the criminal case is pending. In few cases where the department is vigilant he/she may be placed under suspension on the last date of retirement pending criminal case.

40. But prolonged suspension in corruption cases till the disposal of the criminal case for corruption would cause heavy loss to the Government in the form of subsistence allowance. On that ground, he can not be directed to be restored to service as the return of a corruption charged Government Servant even to the post or non-sensitive post would definitely reduces the gravity of the case and demoralize not only the witnesses but also other honest Government servants.

41. The only way is to treat the complaint in Corruption cases and the trap report filed in the criminal court as substantial evidences in disciplinary cases and conclude the same subject to the reconsideration of the same in case of honourable acquittal or acquittal on benefit of doubt.

42. Except on honourable acquittal, the properties already attached under section 18-A of the Prevention of Corruption Act, 1988 can not be released. There must be a provision in the Service Rules directing the Government Servant to publish publicly the Statement of Accounts and assets not only of the Government Servant concerned but also their family members too as defined in SAFEMA and The Corrupt Public Servants (Forfeiture of Property) Bill, 1999, at the time of entering into service and the subsequent acquisition of properties.

43. The departmental case ended against a Government Servant can be reopened only on honourable acquittal and like that the departmental cases ended in favour of a Government Servant can be reopened in case of acquittal/on benefit of doubt. In case of conviction, the Rule like 17(1)(c) of the Tamil Nadu Civil Services (D&A) Rules would take care and on the basis of such conviction the properties attached have to be made permanently. The attachment of properties in the Corruption cases even on acquittal on benefit of doubt shall not be released and made permanent.

44. In some of the cases the concerned government servant may die and the legal heirs may approach the court for the settlement of the retirement benefits on the ground that the criminal proceedings get abated on the death of the government servant as an accused. In service law also, the pending disciplinary proceedings get abated with the death of a delinquent entitling the legal heirs to claim for all the service benefits in lumpsum.

45. Thus, the corruption cases against the government servants who are the public servants never deter them in any manner except causing a minor disturbance in the name of suspension for certain period. Such a kind of approach would not only be detrimental to the government exchequer but also to the honest government employees as they may be demoralized by taking note of the luxurious life led by the public servants accused of corruption charges. It is in the background of antinational approach and attitude to deal with the persons facing the corruption charges various enactments are suggested and brought forth by our law makers and several land marking judgments are pronounced to curb the corruption and eradicate the same completely as it eats the democratic roots of our country.

VIII. Some of the suggestions to curb the corruption to the considerable level:-

46. From the case laws above quoted and the statutory enactments, and the serious impact caused by corruption on human life, the following suggestions are given:-

(i) Every citizen can come out with a complaint of corruption against a public servant and the sanction for prosecution should be accorded within 3 + 1 months as decided by the Apex Court in Subramanian Swamy case reported in (2012) 3 SCC 64.

(ii) Immediate steps have to be taken to make the Bill called The Corrupt Public Servants (Forfeiture of Property) Bill sent by Justice B.P. Jeevan
Reddy of the Apex Court as a Chairman of the Law Commission to the
Government along with the report dated 04.02.1999 as Act like Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, the validity of which is upheld by the Apex Court.

(iii) As per Section 18A of the Prevention of Corruption Act inserted by Amendment Act 2018, the properties of the Government servants and the public servants involved in corruption cases facing departmental proceedings or criminal proceedings or both are required to be attached and confiscated immediately till the final verdict is given by the competent courts of law.

(iv) While doing so the procedure prescribed under Criminal Law Amendment ordinance, 1944 and Prevention of Money Laundering Act 2002, as upheld by the Hon’ble Apex Court in the case of Vijay Madanlal Choudry vs Union of India reported in 2022 SCC OnLine SC 929 and (v) at para 187 with the following observations have to be followed:-
“Para 187 (v)(a) Section 3 of the 2002 Act has a wider reach and captures every process and activity, direct or indirect, in dealing with the proceeds of crime and is not limited to the happening of the final act of integration of tainted property in the formal economy. The Explanation inserted to Section 3 by way of amendment of 2019 does not expand the purport of Section 3 but is only clarificatory in nature. It clarifies the word “and” preceding the expression projecting or claiming as “or”; and being a clarificatory amendment, it would make no difference even if it is introduced by way of Finance Act or otherwise.
(b) Independent of the above, we are clearly of the view that the expression “and” occurring in Section 3 has to be construed as “or”, to give full play to the said provision so as to include “every” process or activity indulged into by anyone. Projecting or claiming the property as untainted property would constitute an offence of money-laundering on its own, being an independent process or activity.
(c) The interpretation suggested by the petitioners, that only upon projecting or claiming the property in question as untainted property that the offence of Section 3 would be complete, stands rejected.
(d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of moneylaundering against him or any one claiming such property being the property linked to stated scheduled offence through him.
(v) The procedure prescribed under the Manual of the Directorate of Vigilance and Anti-Corruption, Tamil Nadu has to be followed strictly to avoid any escape of public servants on technical ground.

(vi) Not only the properties of the concerned government servant alone but also the properties standing in the name of the persons as suggested by the Law Commission in the Bill called The Corrupt Public Servants (Forfeiture of Property) Bill sent along with its report dated 04.02.1999 are required to be attached till the finality is arrived at in the criminal case registered against them.

(vii) Each and every public and government servant is mandatorily required to submit the statement of movable and immovable properties along with the statement of the bank accounts, the movable and immovable properties of their spouse, son, daughter and brother and sister as mentioned under the SAFEMA and the Law Commission Bill, 1999, to their appointing authority and the same has to be made available to the knowledge of the common people. It should be made compulsory even at the time of their entry into service and the same has to be periodically done for every two years.

(viii) In case of any acquisition of the property by a public servant either by gift, sale, mortgage, lease or by any mode of transfer or by hereditary right the same has to be informed to the appointing authority within a month from the date of such acquisition and the same has to be enquired and found as to whether they come by way of any remuneration for the discharge of their official duties. Till it is found to have been acquired genuinely, such a property would be treated only the property acquired by way of proceeds of crime and they should not be transferred in any manner.

(ix) The moment any government servant and public servant come to the adverse notice of the authority concerned on corruption charges, the properties have to be attached and confiscated. Such attachment and confiscation should be lifted only in case of honourable acquittal and not even in case of acquittal on benefit of doubt or any other technical ground.

(x) They have to be placed under suspension, and their suspension should be allowed to be continued till the disposal of the disciplinary case or criminal case whichever ends first.

(xi) The disciplinary case should not wait for the chargesheet or disposal of the criminal case. The disciplinary case in the light of various judgments of the Hon’ble Apex Court has to be conducted independently and a final decision has to be arrived at within the maximum period of 6 months from the date of the complaint and the charge memo. Once the departmental case ends against him, the properties attached shall be continued and of course subject to the disposal of criminal cases only. Even if there is no criminal case and the matter is referred to Tribunal for Disciplinary proceedings and finally left to the disciplinary authority but involving corruption charges the properties have to be attached under Section 18A of the Prevention of Corruption Act and depending upon the complete honourable exoneration only they have to be released.

(xii) The departmental proceedings so concluded have to be reopened in case of honourable acquittal and the delinquent suffered from any punishment can be left free and at the same time it need not be reopened in case of acquittal on benefit of doubt.

(xiii) Like that the departmentally left free candidate but convicted later has to be dismissed under Rule 17 (c) of Tamil Nadu Civil Services (D&A) Rules and similar provisions in other service rules even if he or she is left off with a minor punishment or without any punishment departmentally.

(xiv) Pending criminal case even if the public servant succeeds departmentally he should not be given any sensitive posting and should not be considered for any promotion or selection grade and special grade till the criminal case on corruption ends with honourable acquittal. Even if he is acquitted on benefit of doubt he is not entitled to claim for any service benefit or the release of properties attached or confiscated.

(xv) The verdict given in the disciplinary case cannot be the deciding factor for the criminal case as the department case always ends depends upon preponderance of probabilities and the criminal case ends on unimpeachable proof of the offence without any doubt. The properties proved to be disproportionate to the nature his/her income irrespective of exoneration of the charges in departmental proceedings have to be continued and have to be permanently confiscated by the Government in case of conviction in the criminal case as well in case of acquittal on benefit of doubt or succession in any manner on any technical ground.

(xvi) To put it in other words though on some technical grounds the government and public servants escape from the clutches of criminal law and also from the departmental punishment due to the lenience of the disciplinary authority, or on some other flaws, the attachment and confiscation of the properties should be continued and confirmed and only in case of honourable acquittal they have to be released. The release of attached properties depends upon the nature of acquittal in criminal case.

(xvii) Incase, the properties standing in his/her name mentioned in the Statement of Accounts and Properties submitted at the time of entering into service exceeding the extent of properties disproportionately to their income they should be confiscated permanently and attached to the exchequer of the government though he/she is exonerated from the criminal as well as departmental charges unless and otherwise they are acquitted genuinely.

(xviii) The provisions and the procedure prescribed under the Prevention of Money Laundering Act, 2002 and the Criminal Law Amendment ordinance, 1944 have to be strictly followed in case the case is of corruption charges.

(xix) The Law Commission’s Report for the enactment of the Corrupt Public Servants (Forfeiture of Property) Bill, 1999 has to be immediately taken note of and implemented before the cancer of corruption completely destructs other organs of the largest democracy in the world.

(xx) It is for the Constitutional Courts and the Legislative Authorities to decide what is good for the common people and the welfare of the Nation as a whole.
Dated at Chennai, on this 07th day of June, 2023.

R.SINGARAVELAN (AMICUS CURIAE)

AR REPORTER
UNCATEGORIZED
corruption case full order of THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No.6677 of 2010 and M.P.No.2 of 2010 1. M.Rajendran 2. R.Dhanalakshmi 3. R.Dilli Raja … Petitioners Mrs.V.S.Manimekalai For Mr.V.S.Selvaraj For R1 to R5 : Mr.P.Kumaresan Additional Advocate General Assisted by Mr.T.Arun Kumar Additional Government Pleader For R6 to R8 : Mr.H.Manivannan For R9 to R11 : Mr.V.Sivalingam For M/s. Siva Associates : Mr.R.Singaravelan, Senior
BY SEKAR REPORTER · JULY 16, 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.06.2023
PRONOUNCED ON : 12.07.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.6677 of 2010 and
M.P.No.2 of 2010
1. M.Rajendran
2. R.Dhanalakshmi
3. R.Dilli Raja … Petitioners
Vs.
1.The Secretary to Government,
Home Department, Fort St. George, Chennai-9.
2.The Director General of Police, Chennai – 4.
3.The Superintendent of Police, Kancheepuram,
Kancheepuram District.
4.The Inspector of Police,
District Crime Branch,
Office of the Superintendent of Police, Kancheepuram, Kancheepuram District.
5.The Sub Inspector of Police,
District Crime Branch,
Office of the Superintendent of Police, Kancheepuram, Kancheepuram District.
6.Vijayaraghavan,
Deputy Superintendent of Police,
Krishnagiri,
Krishnagiri District.
7.M.Sukumaran,
Sub Inspector Of Police,
District Crime Branch,
Office Of The Superintendent of Police, Kancheepuram, Kancheepuram District.
8.Vijayakumar
Head Constable,
District Crime Branch,
Office of the Superintendent Of Police
Kancheepuram,
Kancheepuram District.
9. Manoj Kumar
10.T.A.Sudarsanan
11. T.A.Kannan … Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari, calling for the records relating to FIR in Cr.No.74/2009 dated 22.12.2009 on the file of the fourth respondent, quash the same.
For Petitioners : Mrs.V.S.Manimekalai
For Mr.V.S.Selvaraj
For R1 to R5 : Mr.P.Kumaresan
Additional Advocate General
Assisted by Mr.T.Arun Kumar
Additional Government Pleader
For R6 to R8 : Mr.H.Manivannan
For R9 to R11 : Mr.V.Sivalingam
For M/s. Siva Associates
: Mr.R.Singaravelan, Senior Counsel,
(Amicus Curiae)
O R D E R
The Writ of Certiorari on hand has been instituted to quash First
Information Report (F.I.R) in Crime No.74 of 2009 dated 22.12.2009.
PETITIONERS CASE:
2. It is an interesting case, where the Government employees / Police Officials between themselves raising the allegations of corruption against each other, to the huge extent. Thus, it is imminent for this Court to consider the state of affairs and the large scale corruption amongst the Public Servants visibly noticed in the public domain. Though the Constitutional Courts emphasised that the corruption will stall the developmental activities, there is no considerable improvement in the matter of controlling the corruption in our Great Nation. Thus, this Court has taken a little effort to emphasis and to create awareness with a fond hope that some steps will be taken to minimise the corruption, by all concerned.
3. The first petitioner was a Government employee. The petitioners two and three purchased a property in Sriperumpudur Village through a Sale
Deed dated 17.09.2009 vide Document No.6938 of 2009 from M/s.Sri Rama Sankara Sharma alias Rama Nivasha Chari and his brother Krishna Sharma.
4. The old building in the said property was demolished during October 2009. Knowing the fact that the petitioners two and three purchased the property , the tenth respondent, who is an Advocate and the eleventh respondent, who was a Councillor of Kancheepuram Municipality and his brother demanded money from the petitioners. On 23.12.2009 at about 4:00
a.m., respondents seven, eight and ten came to the house of the petitioners. The seventh respondent / Sub-Inspector of Police informed the petitioners one and three that they should go to the District Crime Branch to answer the complaints made against them regarding the purchase of property. The first petitioner went to the District Crime Branch, Kancheepuram with his son in their car. The seventh respondent was also got into the first petitioner’s car. Respondents eight and ten followed the petitioners in another car and came to the Police Station.
5. As soon as they reached the District Crime Branch Office, the seventh respondent / Sub-Inspector seized the cell phone belonging to the petitioner and did not permit the petitioner to seek legal assistance. He restricted the movement of their driver and commanded him not to leave the office of the District Crime Branch. The petitioner informed the seventh respondent that the property was purchased after verifying all the documents and there is no illegality in purchasing the property. He wanted the petitioners to negotiate with the tenth respondent / Advocate and settle the issues. The petitioners informed that they are not willing to enter into any negotiation with the tenth respondent. Further, the petitioners have expressed their willingness to re-transfer the property to vendors, if the sale consideration is returned.
6. After sometime, Mr.Vijayakumar, alias Vijay, who negotiated the sale transaction was brought to the Police Station. Thereafter, Neelankumari, aged 19, daughter of one of the vendors was also brought to the Police Station. She told the seventh respondent / Sub Inspector that the property was sold by her father and her uncle legally, and that both the vendors had gone to Bihar. She asserted that there was nothing illegal in the transaction. The seventh respondent threatened her with dire consequences, if she was to argue with the Police. The 7th respondent thereafter assaulted Mr.Vijayakumar, alias Vijay, sending a clear signal that they would be also dealt with similarly.
7. The first petitioner sought permission from the Police to send his driver to get money from his house. The second petitioner pledged jewels and sent Rs.1,50,000/- through his driver. He paid a sum of Rs.40,000/- to the seventh respondent / Sub-Inspector and Rs.10,000/- to the eight respondent /
Head Constable. He told the seventh respondent that a sum of Rs.1,00,000/- could be given to the Deputy Superintendent of Police. He also told the seventh respondent that after the vendors return back, they will re-convey the land, if the vendors have no right to sell the land. The seventh respondent has stated that he should be ready with money and he should speak to the sixth respondent, who was the then Deputy Superintendent of Police, District Crime Branch, Kancheepuram. The seventh respondent thereafter spoke to the sixth respondent. The sixth respondent demanded Rs.10,00,000/- and stated that if Rs.10,00,000/- was paid they could be temporarily allowed to go home and thereafter negotiations could be held. He demanded the 8th respondent to register F.I.R., if Rs.10,00,000/- was not paid immediately. The petitioner expressed his inability to pay Rs.10,00,000/-.
8. Thereafter, the tenth respondent brought the ninth respondent to the office of the District Crime Branch. Respondents seven, nine and ten jointly prepared the F.I.R. at about 7:00 p.m. on 23.12.2009. The F.I.R. was anti dated as if it was lodged on 22.12.2009 by the ninth respondent. The tenth respondent thereafter brought a photographer to the office of the District Crime Branch, at about 9 p.m. The respondents six, seven and eight compelled the first petitioner, his son Vijayakumar, alias Vijay and Neelankumari to pose for photograph.
9. At about 24 hours, they were produced before the Sri PerumpudurMagistrate at his house at Ranipet and they were remanded to judicial custody by 0.15 hours on 24.12.2009. The Daily Thanthi dated 24.12.2009 has published the photograph of petitioners two and three Neelankumari and Vijayakumar with false news as if the petitioners purchased the property worth Rupees eleven crores fifty lakhs for Rs.10 lakhs. The publication in the newspaper is caused by respondents six, seven, eight nine and ten maliciously with the deliberate intention of defaming the petitioners. A sum of
Rs.10,00,00/- was demanded from the petitioners for grant of bail. Subsequently, the petitioners were released on bail by the Appellate Court and petitioners one and three came out of jail on 23.01.2010 the second petitioner was granted anticipatory bail by the High Court. The petitioner during the relevant point of time was working as Village Administrative Officer and in view of the criminal case, he was suspended from service by the District Revenue Officer, Kancheepuram by order dated 25.12.2009.
10. Apart from the respondents ten and eleven, three other Advocatesalso approached the petitioner and demanded money from him. After grant of bail, the petitioner made further enquiry to find out as to why Advocates and they were demanding money from him. One Madusudana Srinivasa Ramanuja Dhas, hailing from North India, settled down at Sriperambadur and had acquired 37.95 acres of land. He was also in possession of 2000 sq.ft. of Grama Natham. The said Madusudana Srinivasa Ramanuja Dhas had executed a will dated 02.12.1923 nominating five persons as trustees to administer the properties. Out of the five trusties two of them were already trustees of a Mutt called Kanji Uttrathi Madam Trust. The property was not given to the Mutt by Madusunana Srinivasa Ramanuja Dhas. After his death, two person namely Balamugunthachari and Sudarsanahari had dealt with the entire property as if it were their individual property each having ½ share. Balamugunthachari had applied for planning permission to put up construction in the property purchased by petitioners two and three and planning permission was given by the Executive Officer, Sriperumpudur Panchayat on 04.05.1982. The said Balamugundachari had executed a will on
20.12.1992 bequeathing his share in favour of Sudarsanachari, son of Sadhu
Sharma. After the death of Balamugundachari, the house tax and the

electricity bill were changed in the name of Sudarsanachari.
11. The said Srinivasachari was murdered on 20.01.2005 at

Kancheepuram. The petitioners two and three purchased 2000 sq.ft. of Natham land and the old building from the brothers of Srinivasachari, who are the legal heirs. There were several documents registered on the file of Sub Registrar, Sriperumbudur and Sub Registrar, Kancheepuram establishing that the properties were dealt with by Balamugundachari and others as their individual properties. There are several sale deeds executed by Mr.Balamugundachari through his Power of Attorney. Other sale also took place in respect of the property. The ninth respondent / defacto complainant is fully aware of all the documents relating to the sale of the said properties to a larger extent. Mr.Sukumaran, Sub Inspector of Police/ seventh respondent is from Kancheepuram. He wanted the first petitioner to speak to the tenth respondent and settle the money transaction. Mr.Vikayaragavan, formerly Deputy Superintendent of Police demanded Rs.10,00,000/- as a pre-condition for further negotiation. There is a total abuse of police power. The F.I.R. is contrived to extract money. A false news with photograph of petitioners one and three was caused to be published in the Daily Thanthi. There is reason to believe that such a report was caused to scare the vendors who sold the property to the petitioners, so that the remaining properties worth about Rs.30 crores is taken control of by respondents seven to eleven. The petitioner submitted a detailed petition on 15.03.2010 before the first respondent. On

16.03.2010 petitions were presented before the respondents two and three.

The petitioners have been subjected to an illegal criminal proceedings.
Therefore, the present writ petition is filed.
RESPONDENT’S REPLY:
12. The third respondent / Superintendent of Police filed a counter affidavit stating that one Manoj Kumar Kamalatchari has preferred complaint on 22.12.2009 before the District Crime Branch, Kanchipuram and case has been registered under Section 120 B, 420, 464, 465, 471 read with Section
109 I.P.C. The report has been preferred by the manager of Uthirathi Sri
Vaishnava Mutt stating that the mutt is having mutt property at Sriperumpudur and the Head Office is situated at Patna in Bihar State. The mutt is doing service to the pilgrims, who are coming from North India. As per the documents of title, the above said mutt property is inalienable one.
The madathypathy one Srinivachari seems to have been murdered during the year 2005 and at that time one person namely Ramanivaschari claiming to be the brother of the above said Srinivaschari had come to the mutt and represented that he is going to administer the matt and to continue the proceedings of the murder of his brother.

13. The mutt property originally belonged to one Madusudana Srinivasa Ramaja Dass and he has executed his last will and Testament dated 02.12.1923 by creating Mutt and bequeathed the Mutt and other properties and in that will he has categorically stated that the above said Mutt and immovable properties should be developed by the Trustees and that property cannot be encumbered or sold by the Trustees and from the income, the charities have to be performed. The first petitioner Mr.Rajendran has submitted a complaint to transfer patta on the Matt property after purchase and the petition was drafted by the Village Administrative Officer (V.A.O). A bogus person has given petition to change patta with the connivance of the V.A.O. The patta seems to have been obtained on 16.09.2009 in the name of the A1 and A2 in this case. The A1 is the first petitioner herein. Thereafter, it is found out that the present V.A.O. has got agreement of sale from the above said Accused 1 and Accused 2 for purchasing the property on 21.07.2009 in favour of his wife Dhanalakshmi and his son R.Dilliraja, who were the Accused 5 and 6 in this case.
14. On 17.9.2009, itself he has got the sale deed in the names of his wife and his son. From the above said accused 1 and 2, under document No.6938 of 2009. The respondents have narrated the allegations set out in the Criminal complaint and the nature of transactions took place between the parties. The documents collected were also referred in the counter affidavit. The Superintendent of Police Kanjeepuram has stated that the petitioner were actively involved in the offence and filed a false writ petition to keen time for destroying the documents and tampering the witnesses. Therefore, the writ petition is to be rejected.
15. The respondents ten and eleven also filed a counter affidavit denying the allegations raised against them by the writ petitioners. They have stated that the allegations against them are false and untenable. Except the denial of allegations, the respondents ten and eleven have not elaborately stated about the criminal complaint and the allegations against the petitioners.

16. The eight respondent / Head Constable also filed a counter denyingthe allegations. It is further contended that the Civil Suits filed by the writ petitioners for surviving damages were dismissed by the City Civil Court. The eight respondent specifically contended that the first petitioner Mr.Rajendran is the father of corruption, who has amazed properties worth more than Rs.100 crores within a period of four years.
17. The eight respondent / Head Constable further states that the first petitioner served as a Village Administrative Officer in Sriperumbudur Taluk from 2005 to 2009 had purchased more than 37 properties in the same Taluk, which are worth more than Rs.100 Crores. He has purchased all the above 37 properties in the name of his wife R.Dhanalakshmi and two sons namely R.Dilli Raja and R.Venkatraman from the year 2005 to 2009. The 1st petitioner has neither informed the Government nor obtained permission from his Department.
18. The learned counsel for the petitioner drew the attention of this
Court with reference to the letter of the Superintendent of Police Central
Range Vigilance and Anti-corruption Chennai, dated 03.09.2015, who conducted an investigation into the allegations of corruption against the writ petitioner, who served as village administrative officer. The Vigilance and Anti-Corruption Department conducted an investigation into the allegations of possession of assets disproportionate to his own source of income during the period between 01.03.2002 and 31.12.2009. The Vigilance Commissioner in his letter dated 25.05.2011 accorded concurrence for registering a regular case against Tr.M.Rajendran, Village Administrative Officer, Sriperumbudur.

Accordingly, a regular case was registered in V & AC Chennai City I Detachment Crime No.6/2011/AC/CC I on 27.06.2011 u/s 13(2) r/w 13(1)(e) of PC Act, 1988 and investigation taken up. The investigation did not disclose any prima facie material, further action was dropped against Tr.M.Rajendran, Village Administrative Officer, Sriperumbudur.
19. Relying on the above letter, the learned counsel for the petitioner mainly contended that no doubt the petitioner purchased property, but he purchased from and out of his own sources of income and he has produced all the materials to establish that there is no element of corrupt practices.
Therefore, the Vigilance and Anti-Corruption authorities found that there is no prima facie case made out against the petitioners for prosecution and accordingly dropped the allegations. But the respondents had not initiated action against the Police authorities, who demanded bribe from the petitioner and harassed the petitioners.
20. In view of the allegations and counter allegations made between the petitioners and the respondents officials in their personal capacity, this Court thought fit and directed the third respondent / Superintendent of Police, Kancheepuram to file a Status report and it was filed on 26.04.2023.
21. The status report filed by the third respondent reveals that the petitioners are accused in the Crime No.74 of 2009 on the file of the District Crime Branch, Kanchipuram. The investigating officer had examined the witnesses and the above case was taken on file in CC.No.403 of 2015 and posted for trial. Subsequently, the case was transferred to the learned Judicial Magistrate Court-I Kanchipuram in CC.No.64 of 2020 as per the Gazetted Notification No.12/2018 dated 01.12.2018 of Kanchipuram District Gazette and trial was commenced in the above case on 01.09.2018 and so far 4 witnesses were examined on the Prosecution side and posted for further trial in the above case on 30.06.2023.
22. The third respondent states that the grave fraud and cheating committed by the said Rajendran had been clearly established by documents and he had conspired with the 1st and 2nd accused, who were not at all concerned with the Sriperumbudur Mutt property purchased by Rajendran in the name of his wife Tmt. Dhanalakshmi and son Tr.Dilli Raje dated 17.09.2009 vide Document No.6938 of 2009 and the forgery committed by him in the alleged mother document registered will vide Document No.109 of 1994 dated 21.12.1994 by fabulously inserting the said Sriperumbudur Mutt property in the said Will typed in English were clearly established by documents. The fraudulent act of the said Rajendran and the accused A1 to

A4 were clearly proved and after the arrest on 23.12.2009, the Police
Photographer had taken the photos of the said accused Rajendran, Vijay,
Neelam Kumara and Dilli Raja and Published the same at the Daily Thanthi
News paper after their remand before the Hon’ble Judicial Magistrate Court, Sriperumbudur.
23. Regarding the allegations against the Police officials, the thirdrespondent states that the petitioner Mr.Rajendran in his status report states that first petitioner Thiru.Rajendran and his wife and his sons had filed the writ petition, wherein certain bald allegations against the police personnel are made. They have stated about the bribe given to the Police officials. It is stated by the Superintendent of Police Kanchipuram district that F.I.R. will be registered immediately. However in para 5 of the report , the third respondent states that the allegations in para 10 of the affidavit filed by the petitioner are totally false and only outburst of vengeance against the police authorities investigating the above case. The petitioner Mr.Rajendran never whispered anything about the illegal demand made by the Police personnel of District Crime Branch, Kanchipuram to the Hon’ble Judicial Magistrate, Sriperumbudur whilst remanded them for judicial custody. Therefore, the allegations made by Mr.Rajendran is an after though and imaginary. Thus, the writ petition is to be rejected.
24. In respect of the allegations against the first petitioner Mr.Rajendran, the case registered by the Director of Vigilance and Anticorruption regarding the allegations of possession of assets disproportionate to his own source of income, the the complaint itself was closed on the ground that the income from the family properties were more than the assets acquired and accordingly further action was dropped.
DISCUSSIONS:
25. The allegations and counter allegations between the petitioners and the respondents would reveal that the petitioners purchased a property and the said purchase was questioned by the defacto complainant and further allegation of accumulation of disproportionate wealth by the petitioners was also has been raised. The Vigilance and Anti-Corruption Department dropped the allegations of accumulation of disproportionate wealth by the petitioners. However, the Criminal Case registered against the petitioners in Crime No.74 of 2009 is pending. Trial has already commenced and the third respondent has stated that some witnesses have already been examined by the Trial Court. The said Criminal Case is to be proceeded and to be disposed of as expeditiously as possible.
26. With reference to the allegations of demand and receipt of bribe by the respondents six, seven, eight and the other serious allegations raised against the respondent nine to eleven are not properly investigated by the respondents two to five. Perusal of the allegations set out in the affidavit filed in support of the writ petition would reveal that some incidents occurred in the Police Station, Central Crime Branch and the narration of the incidents also reveal that something happened, which is to be investigated properly by the Competent Higher Authorities.

27. Unfortunately, the third respondent instead of conducting an investigation merely stated that the allegations are bald in nature and such allegations are made on account of personal vengeance. Mere reading of the affidavit provides certain particular details and the time duration, which requires investigation. Certain bald allegations if made can be understood and when certain specific allegations are made against the Police Officials, the Higher Authorities are bound to conduct an enquiry. They cannot have a standard approach of rejecting such allegations by merely stating that such allegations are made in order to escape from the clutches of the Criminal Law or from and out of the personal vengeance, since Criminal Cases are registered against such complaints.
28. No doubt it is possible on some occasions even the accused areraising some bald allegations against the Police Officials. But if the allegations are made with specific incidents including date, time and amount given to the Police Officials as bribe, certainly an enquiry is warranted and the Higher Officials cannot close their eyes in such serious nature of allegations.
29. The writ petition was instituted in the year 2010 and it is pending for the past about 13 years. The petitioners were exonerated from the allegations of accumulation of disproportionate wealth by the Director of Vigilance and Anti-Corruption. However, no action has been taken against the respondents six to eleven, despite the fact that the petitioners made serious allegations of demand and acceptance of bribe, when they were arrested by the Police.
30. In view of the fact that the Higher Authorities of the Police Department are also insensitive in the matter of dealing with the corruption in the Police Department, it is necessary for this Court to consider the nature and evils of corruption and the procedures to be adopted in such
circumstances even for confiscation of the illegally accumulated properties or properties accumulated disproportionately.
31. The Public opinion remains as if there are large scale corruptpractices in the Police Department and in other Government Departments. To some extent it is true also in Police Stations, Tahsildar Offices, Registration Offices, Transport Offices, etc., where there are large scale corruptions prevailing, which are causing greatest agony and harassment to the people even for securing their rightful claims, certificates, documents etc.
32. Corruption is not only found in illegalities, even for legal transactions, demand and acceptance of bribe is found in large scale in Government Departments and in Police Department. Therefore, the public opinion in this regard is to be removed, only by developing transparency in Public Administration, minimising the procedures to be adopted and initiating appropriate action against the complaints given by the aggrieved persons. Therefore, the Higher Authorities are expected to be sensitive in the matter of corruption allegations.
CORRUPTION IN GENERAL:
33. Corruption is a disease that eats into the cultural, political andeconomic fabric of society, and destroys the functioning of vital organs. The origin of word ‘corruption’ comes from the Latin terms corruptus, or corrumpere which mean spoiled or break into pieces, accordingly. Corruption occurs at all levels of society and at all forms – public, private, locally, nationally and internationally.
34. Corruption in India has become deep-rooted and is galloping unchecked and unhindered. It is well known how our Great Nation appears to be sinking deeper and deeper in corruption. There is little doubt that corruption in present-day India pervades all levels and all services, not even sparing the Indian Administrative Service, Indian Police Service and Judicial Service.
35. “Historically, the roots of India’s corruption came from the proliferation of licenses,” says former CFR Senior Fellow for International Economics Mr.Jagdish Bhagwati. “The idea was to ensure economical use of resources, so you would not waste foreign exchanges. To this day, this is what Indians have been very aware of: that the institution of licenses and permits was responsible for creating corruption on a massive scale.”
36. The experience of our Great Nation with corruption has shown thatlaws, rules, regulations, procedures and methods of transaction of Government business, however sound and excellent cannot by themselves ensure effective and transparent administration if the political and administrative leadership entrusted with their enforcement fails to do so and abuses its powers for personal gain.
37. The role of political leadership in aiding and abetting spread of corruption in our Great Nation was most clearly brought out by the Shah Commission of Enquiry constituted to look into the excesses committed during the period of Emergency (1975-1977). The nexus between corrupt politicians and corrupt bureaucrats has been clearly proved in recent years by enumerable scams.
38. A contributory factor to the growth of corruption in India is that the cases relating to corruption are often handled in a casual and clumsy manner.
In present day India, corruption has found an acceptance in the social psyche and behaviour. Social evils like bribery, nepotism and favouritism have come to be accepted in the society. People often approach someone known to them for favours which they know are not legally due to them. Jumping the traffic lights or a queue or getting the benefits not due to one has become part of social ethos. A person who has acquired wealth through unfair means is often accorded the same, if not higher, status in Indian society as that given to persons of excellence. Whatever the people may say in coffee houses or in seminars, they show awe and respect to the corrupt. Such people are repeatedly elected or appointed to positions of power, and they go on to distribute the spoils of office to their near and dear ones.
39. In the ultimate analysis the corrupt politician or the corrupt administrator is a creation of the public and is a concrete manifestation of the psychologically corrupt men in the street with whose approval corruption flourishes with impunity. It is no surprise therefore that at times the corrupt political leaders walk majestically to the court and acknowledges their supporters greetings as if they were to receive award for public service.
OBSERVATIONS OF SUPREME COURT:
40. In respect of corruption, the Hon’ble Supreme Court of India, in the case of State of Madhya Pradesh and Others vs. Ram Singh [(2000) 5
SCC 88], and the relevant paragraph 8 is extracted hereunder:
“8. Corruption in a civilised society is a disease like cancer, which if not detected in time, is sure to maliganise (sic) the polity of the country leading to disastrous consequences. It is termed as a plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti-people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence — shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society.”
41. The Hon’ble Supreme Court of India, in the case of State of Madhya Pradesh vs. Shambhu Dayal Nagar, [(2006) 8 SCC 693] and the relevant portion of this judgment is extracted hereunder:
“32. It is difficult to accept the prayer of the respondent that a lenient view be taken in this case. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large-scale corruption retards the nation-building activities and everyone has to suffer on that count. As has been aptly observed in Swatantar Singh v. State of Haryana[(1997) 4 SCC 14]”
42. The Hon’ble Supreme Court of India, in the case of Swatantar Singh vs. State of Haryana and Others, [(1997) 4 SCC 14] and the
relevant portion of this judgment is extracted hereunder:
“6. It is sad but a bitter reality that corruption is corroding, like cancerous lymph nodes, the vital veins of the body politic, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of being corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke. Sometimes, there may not be concrete or material evidence to make it part of the record. It would, therefore, be impracticable for the reporting officer or the competent controlling officer writing the confidential report to give specific instances of shortfalls, supported by evidence, like the remarks made by the Superintendent of Police. More often, the corrupt officer manipulates in such a way and leaves no traceable evidence to be made part of the record for being cited as specific instance. It would, thus, appear that the order does not contain or the officer writing the report could not give particulars of the corrupt activities of the petitioner. He honestly assessed that the petitioner would prove himself to be an efficient officer, provided he controls his temptation for corruption. That would clearly indicate the fallibility of the petitioner, vis-à-vis the alleged acts of corruption. Under these circumstances, it cannot be said that the remarks made in the confidential report are vague without any particulars and, therefore, cannot be sustained. It is seen that the officers made the remarks on the basis of the reputation of the petitioner. It was, therefore, for him to improve his conduct, prove honesty and integrity in future in which event, obviously, the authority would appreciate and make necessary remarks for the subsequent period. The appellate authority duly considered and rejected the contention of the petitioner. Repeated representation could render little service. Rejection, therefore, is neither arbitrary nor illegal.”
43. The Hon’ble Supreme Court of India, in the recent case of Neera Yadav vs. Central Bureau of Investigation [(2017) 8 SCC 757] and the relevant portions of this judgment are extracted hereunder:
“Corruption paralyses the functioning of the
key areas of the State administration.” “The practice of promoting the interest of few individuals to the detriment of many others is wholly reprehensible and deserves to be condemned”
44. A Constitution Bench of this Court in the case of Manoj Narula vs. Union of India [(2014) 9 SCC 1], held that corruption erodes the fundamental tenets of the rule of law and quoted with approval its judgment in Niranjan Hemchandra Sashittal vs. State of Maharashtra [(2013) 4 SCC 642 : (2013) 2 SCC (Cri) 737 : (2013) 2 SCC (L&S) 187], it was held as under:
“16. … ‘26. It can be stated without any fear of contradiction that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance.”
45. In the case of Subramanian Swamy vs. Manmohan Singh, [(2012) 3 SCC 64 : (2012) 1 SCC (Cri) 1041 : (2012) 2 SCC (L&S) 666], it was held as under:
“68. Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very foundation of the Indian democracy and the Rule of Law. The magnitude of corruption in our public life is incompatible with the concept of a socialist secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes development and undermines justice, liberty, equality, fraternity which are the core values in our Preambular vision. Therefore, the duty of the court is that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. …”
46. In the case of K.C. Sareen vs. CBI, [(2001) 6 SCC 584 : 2001
SCC (Cri) 1186] , it was observed:
“12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. …”
47. In the case of P.Dharmaraj vs. Shanmugam and Others, Criminal Appeal No : 1514 of 2022, the Apex Court held that corruption by a public servant is an offence against the State and the society at large.
48. In the case of Sanjeev Kumar (Dr.) vs. State of Jammu and Kashmir and Others on 25 August, 2003, the Supreme Court observed
that:
It is a strange co-incidence that the Prevention of Corruption Act, 1947 was enacted in the year of our country’s independence.
Corruption is one of the most talked about subjects today in the country since it is believed to have penetrated into every sphere of activity. It is described as wholly widespread and spectacular. Corruption as such has reached dangerous heights and dangerous potentialities. The word ‘corruption’ has wide connotation and embraces almost all the spheres of our day to day life the world over. In a limited sense it connotes allowing decisions and actions of a person to be influenced not by rights or wrongs of a cause, but by the prospects of monetary gains or other selfish considerations. Avarice is a common frailty of mankind, and while Robert Walpole’s observation that every man has a price, may be a little generalized, yet it cannot be gainsaid that it is not far from truth. Burke cautioned “Among a people generally corrupt, liberty cannot last long.”
49. In the case of State of Madhya Pradesh and others vs. Ram
Singh [(2000) 5 SCC 88], dated February 1, 2000, the Hon’ble Supreme
Court observed as follows :
“… Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to maliganise the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic-political system in an otherwise healthy, wealthy, effective and vibrating society.
The menace of corruption was found to have enormously increased by first and second world war conditions. The corruption, at the initial stages, was considered confined to the bureaucracy who had the opportunities to deal with a variety of State largesse in the form of contracts, licences and grants. Even after the war, the opportunities for corruption continued as large amounts of Government surplus stores were required to be disposed of by the public servants. As consequence of the wars the shortage of various goods necessitated the imposition of controls and extensive schemes of post-war reconstruction involving the disbursement of huge sums of money which lay in the control of the public servants giving them wide discretion with the result of luring them to the glittering shine of the wealth and property. In order to consolidate and amend the laws relating to prevention of corruption and matters connected thereto, the Prevention of Corruption Act, 1947 was enacted which was amended from time to time. In the year 1988 a new Act on the subject being Act No.49 of 1988 was enacted with the object of dealing with the circumstances, contingencies and shortcomings which were noticed in the working and implementation of 1947 Act. The law relating to prevention of corruption was essentially made to deal with the public servants, as understood in the common parlance but specifically defined in the Act. The Act was intended to make effective provision for the prevention of bribe and corruption rampant amongst the public servants. It is a social legislation defined to curb illegal activities of the public servants and is designed to be liberally construed so as to advance its object.”

50. In the case of J. Jayalalitha vs. Union Of India and Another [(1999) 5 SCC 138], delivered on 14 May, 1999, the Hon’ble Apex Court observed as follows:
“Something more. The legislature has enacted the Prevention of Corruption Act and provided for speedy trial of offences punishable under the Act in public interest as it had become aware of rampant corruption amongst the public servants. While replacing the 1947 Act by the present Act the legislature wanted to make the provisions of the Act more effective and also to widen the scope of the Act by giving a wider definition to the term `public servant’. The reason is obvious. Corruption corrodes the moral fabric of the society and corruption by public servants not only leads to corrosion of the moral fabric of the society but is also harmful to the national economy and national interest, as the persons occupying high posts in Government by misusing their power due to corruption can cause considerable damage to the national economy, national interest and image of the country.”

51. In the case of Asgarali Nazarali Singaporawalla vs. The State of
Bombay, [1957] SCR 678], a Constitution Bench dealing with the Criminal Law Amendment Act, 1952 which provided for the trial of all offences punishable under Sections 161, 165 and 165A of the Indian Penal Code or sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947 exclusively by special judges held that “bribery and corruption having been rampant and the need for weeding them out having been urgently felt ; it was necessary to enact the measure for the purpose of curtailing all possible delay in bringing the offenders to book.”
PROVISION FOR CONFISCATION UNDER THE PREVENTION OF CORRUPTION (AMENDMENT) ACT, 2018:
52. Under the Corruption Act, CHAPTER IVA, which deals with
ATTACHMENT AND FORFEITURE OF PROPERTY was inserted through the amendment Act, 2018. Section 18A of the Act reads as follows:
53. 18A. Provisions of Criminal Law Amendment Ordinance, 1944 to apply to attachment under this Act:
(1) Save as otherwise provided under the Prevention of Money
Laundering Act, 2002 (15 of 2003), the provisions of the Criminal Law Amendment Ordinance, 1944 (Ord. 38 of 1944) shall, as far as may be, apply to the attachment, administration of attached property and execution of order of attachment or confiscation of money or property procured by means of an offence under this Act.
(2) For the purposes of this Act, the provisions of the Criminal Law Amendment Ordinance, 1944 shall have effect, subject to the modification that the references to “District Judge” shall be construed as references to “Special Judge”.’
PROCEDURE UNDER THE CRIMINAL LAW AMENDMENT
ORDINANCE, 1944:

54. The Criminal Law Amendment Ordinance, 1944 (referred to as the “Ordinance” as well), which was enforced w.e.f. 23.8.1944 is an yield of the exercise of powers under Section 72 of the Government of India Act, 1935 and is directed to prevent the disposal or concealment of property procured by means of the offences enlisted in the Schedule thereto.
55.Section 3 of the Amendment Ordinance, 1944, states about
applications to be filed for attachment of property. Section 4 speaks about Ad interim attachment. Section 5 provides Investigations of objections to attachment. Section 6 states about Attachment of property of mala fide transferees. Section 7 provides Execution of orders of attachment. The order of attachment of property under this ordinance carried into effect so far as practicable in the manner provided into the Code of civil Procedure, 1908, for the attachment of property in execution of decree. Section 8 speaks about Security in lieu of attachment. Section 9 states about administration of attached properties. Section 9-A is about Administration of attached property where Court ordering attachment has ceased to exercise jurisdiction of India.
Section 10 stipulates Duration of attachment. Section 11 is about Appeals.
Section 12 speaks about Criminal Courts to evaluate property procured by scheduled offences. Section 452 CRPC denotes Order for disposal of
property at conclusion of trial.
(e) In the case of CBI vs. Shri Devendra Kumar Goel and Another, the Special Judge under the prevention of corruption Act observed the findings of the Apex court in Mirza Iqbal Hussain vs. State of U.P and State of Karnataka vs. Selvi J. Jayalalitha and others, 2017(6) SCC 263 in paragraphs 7 and 9 of the judgment and held as follows :
“ 9. Therefore, as per section 452 of crpc and section 5(6) of the PC Act, this court has the power to confiscate the property of the convicts acquired through unfair means .”
POLICE OFFICER’S CONDUCT RULES:
56. With reference to the present writ petition, it is relevant to consider the Tamil Nadu Subordinate Police Officers Conduct Rules, 1964. Rule 8 deals with lending and borrowing. Rule 9 enumerates movable, immovable and valuable property. Sub Rule (1)(a) to Rule 9 stipulates “No Police Officer shall except after notice to the prescribed authority acquire or dispose of any immovable property by lease, mortgage purchase, sale, gift, exchange or otherwise either in his own name or in the name of any member of his family”.
57. Sub Rule 3 to Rule 9 specifically provides “Every Police Officer shall, within three months of his first appointment to any service or post and thereafter at an interval of 5 years, on or before the 31st day of March of the year immediately following the year to which the return relates and every such return shall be as on the 31st day of December of the year immediately preceeding the said 31st day of March, submit a return of his assets on the liability in the forms in schedule I appended to these rules giving the full particulars regarding”:
(a) The immovable property inherited by him, or owned or acquired by him or held by him or mortgage either in his own name or in the name of any members of his family or in the name of any other person:
(b)Shares, debentures and cash including bank Deposits inherited by
him or similarly owned, acquired or held by him.
(c) Other movable property inherited by him or similarly owned, acquired or held by him.
(d)Debts and other liabilities incurred by him directly or indirectly.
Explanation: In all the returns the value of items of movable property worth less than Rs.10,000/- may be added and shown as a lumpsum. The value of articles of daily use such as clothes, utensils, crockery, books etc. need not be included in such returns.
Explanation II: Every Police Officer who is in service on the date of publication of these rules in the T.N. Govt. Gazettee shall submit the return for the year ending with the 31st day of December 1973 on or before 31st day of March 1974.
T.N.GOVT. SERVANTS CONDUCT RULES:
58. The corresponding provisions are available in the Tamil Nadu Government Servants Conduct Rules, 1973 also, more specifically Rule 11 deals with movable, immovable and valuable property and at the outsell, in the Conduct Rules applicable both for the Police Officials and for the other Government Servants, the declaration is to be given by the Officials once in five years and accordingly Conduct Rules are to be followed scrupulously. It is doubtful whether such provisions are followed in its strict sense, so as to ensure that the disproportionate assets, if any accumulated are periodically monitored and actions are initiated in order to control corrupt activities amongst the Public Servants.
59. In the context of the Conduct Rules applicable to the Subordinate
Officials, it is relevant that the Conduct Rules applicable to the Higher
Officials including the Officers of Indian Administrative Service (IAS), Indian
Police Service (IPS), etc., are to be monitored by the State as well as by the Central Government Agencies. Since All India Level Officials are governed under the Central Rules, the Central Agencies are also bound to monitor the accumulation of wealth and the corrupt activities in their official functioning of the All India Level Officials.
60. Consistent monitoring and stringent actions are warranted to fight against corrupt activities. Participation of citizens in general is of paramount importance. Creation of awareness amongst the youth about the evils of corruption is imminent. The ill effects of corrupt activities to be broadly published. Ultimately everyone is responsible and accountable for creation of younger generations for corruption free mind since youth are the nation builders.
61. In the present writ petition, the Amicus Curiae Mr.R.Singaravelan,
Senior Advocate filed a report and his effective assistance stands appreciated.
62. Importantly, the Former Chairman, Law Commission of India Mr.
Justice B.P. Jeevan Reddy forwarded the Bill called “The Corrupt Public
Servants (Forefeiture of Property) Bill” to the Union Minister of Law and
Justice, Ministry of Law and Justice, Government of India on 4th February
2009. The Bill was addressed to Dr.M.Thambi Durai, the then Minister for
Law, Justice and Company Affairs, New Delhi. The Bill presented by Mr.Justice B.P.Jeevan Reddy strictly deals with the deleterious effect of corruption in paragraph 1.3 as under:
“1.3. Deleterious Effect of Corruption. -One of the essential requirements of good governance is the absence of corruption. But unfortunately, corruption has struck deep-roots in our society, including its administrative apparatus. At every rung of the administration, whether at the Centre or in the States, there are corrupt elements who are causing immense loss to the state, to the Nation and the public interest. The administrative apparatus of local authorities, public-sector corporations and Government companies has become equally bad. When a public servant is paid bribe of, say, a lakh of rupees, it is paid for the reason that the payer gets at least 10 times the benefit, if not more, and that benefit is the loss of the State and the people. It is not so much the amount of the bribe but the quantum of loss to the people and the moral degradation it involves that is more relevant. There is no respect for public money and public funds in the minds of many in the administration; public money is nobody’s money. For a small personal benefit, the corrupt are prepared to cause any amount of loss to the State and to the people. On account of corruption, many of the welfare schemes including schemes for advancement of Scheduled Tribes and other weaker sections are not able to achieve the intended results. In fact, a former Prime Minister had observed once that only about 16% of the funds meant for the welfare of the Scheduled
Tribes reached them and that the remaining 84% was absorbed by the members of the administrative apparatus, politicians and other middlemen. A state has arrived where the corruption is threatening the very security and safety of the State. There is corruption in execution of projects, in awarding contracts, in making purchases, in issuance of licences and permits, in appointments, in elections and so on and so forth. There is hardly any sphere of life left untouched by corruption in our society. Surprisingly – or rather shockingly- the corrupt elements have lost all sense of shame and guilt. The societal sanction is practically nil. The corrupt elements are brazenly flaunting their illgotten wealth. The amounts involved in corruption are quite often astronomical. There are numerous foreign forces out to destabilise our country and undermine our economy and the corrupt elements in our governing structure are too willing to play their game for their personal gain. Thus corruption in our country today is not only immoral and shameful, it has also become antinational and anti-social and therefore requires to be dealt with an iron hand. The Prevention of Corruption Act has totally failed in checking the corruption. In spite of the fact that India is rated as one of the most corrupt countries in the world, the number of prosecutions – and more so the number of convictions under the said Act, are ridiculously low. A corrupt minister or a corrupt top public servant is hardly ever prosecuted under the Act and even in the rare event of his being prosecuted, the prosecution hardly ever reaches conclusions. At every stage