G.D.Srivastava - (1.) THESE petitions have been moved by Shiv Datt Misra against the State of U. P. under the provisions of Section 482 CrPC. In all these petitions, the prayer is for quashing different criminal proceedings started against the petitioner under Section 5 (1) (d) of the Prevention of Corrruption Act. In all these petitions, Shri Ashwani Kumar, who was the Regional Transport Authority, during the relevant period, has also been impleaded as opposite party no. 2, but he has not filed any counter-affidavit to any of the petitions. The petitioner is holding the post of Regional Transport Officer in the Transport Department of the U.P. Government and during the relevant period, viz., 15-11-1971 to 31-12-1973, he was posted at Kanpur. In all the petitions, various facts and circumstances have been narrated in order to show that for certain reasons the petitioner had incurred the displeasure of certain high ups and that these prosecutions have been started against him on account of personal grudge and to take revenge. In other words, the allegation is that these prosecutions are totally unfounded and have been started only by way of revenge. It does not appear necessary to refer to those facts and circumstances on the basis of which the petitioner has drawn an inference that he had incurred the displeasure of certain higher authorities The relevant facts may, however, be stated thus.
(2.) THERE existed a route connecting Kanpur and Auraiya via Pukhrayan and Sikandara, which was a nationalised route. On 24-2 -1972, it was decided to open another route between these two towns via Akbarpur and Bihar Ghat. In a meeting held at Kanpur by the Regional Transport Authority, it was decided that ten permanent stage carriage permits would be given for this new route. Five of these permanent permits were granted to private operators and the remaining five to the U. P. Govt. Roadways. But the U. P. Government Roadways did not obtain those permits and, therefore, those five permits were also granted to private persons. In his capacity as Regional Transport Officer, the petitioner submitted a note to the Regional Transport Authority, referring to the meeting held on 24 -2-1972. In this note he said that the U.P. Government Roadways had not obtained permits. He also said in this note that some M. L. As. had approached him with an allegation that there was a pressing need for more vehicles on this route because of the marriage season and because of the general need of passengers. In this note it was suggested that if the Regional Transport Authority approved, temporary permits may be given. Along with this note a list of nine applicants was attached who had applied for temporary permits. On this note, the Regional Transport Authority wrote down his endorsement to the effect that the U.P. Government Roadways may be asked to take the five permits granted to them and if they failed to do so within one month, these five permits may also be given to private parties. THEREafter, the applicant issued temporary permits to those nine applicants and he referred to one ruling of this Court and another ruling of the Supreme Court in support of this order of issuing temporary permits under the provisions of Section 62 of the U. P. Motor Vehicles Act. Now the simple charge against the petitioner in all the cases is that he had issued these nine temporary permits in clear violation of the aforesaid Section 62 and he had, therefore, conferred benefit on some persons illegally and was, therefore, liable to be prosecuted for corruption under the aforesaid section of the Prevention of Corruption Act. I need not repeat that the contention on behalf of the applicant, however, is that he had issued these temporary permits, firstly, with the approval of his superior officer, viz., the Regional Transport Authority and, secondly, in accordance with the view expressed by this Court and the Supreme Court and that he had not contravened the provisions of Section 62 of the Act. This is in brief the case set up by each party and, to my mind, the other facts and circumstances mentioned in the petition and in the counter-affidavit and the rejoinder- affidavit are either irrelevant or unnecessary for the decision of these cases. I may point out at the very outset that in all the petitions, the facts are similar and the same point of law and fact are involved. All these petitions can, therefore, be disposed off by a common judgement. I propose to consider these cases in two aspects. Firstly, it has to be seen whether the petitioner has really contravened the provisions of Section 62 and the second aspect would be whether merely by showing that the petitioner has contravened any provision of law, it can be said that a prima facie case of corruption against the petitioner is made out so as to warrant his prosecution under the said provision of the Prevention of Corruption Act. The rule of law, which is said to have be in contravened by the petitioner may be stated as follows :- "Provided that a temporary permit under this section shall, in no case, be granted in respect of any route or area specified in an application for the grant of a new permit under Section 46 or Section 54 during the pendency of the application."
(3.) IT is needless to say that section 62 authorises the Regional Transport AuthorITy to grant temporary permITs for a limITed period not exceeding four months for the convenience of passengers on special occasions, such as fairs and religious gatherings, or seasonal business or to meet a particular temporary need. The proviso, which has been quoted above, however, prohibITs granting of such temporary permITs, if any application for grant of a permanent permIT for that route is pending. Now the contention on behalf of the State is that applications for permanent permITs for this route were pending and inspITe of those pending applications, the petITioner issued the temporary permITs to nine persons and, therefore, he had clearly violated the aforesaid provision of law. The ruling of this Court behind which the applicant has taken shelter is reported as Turabuddin Ahmad v. Commissioner, Meerut Division, AIR 1972 All. 146. The learned Judge, after examining the scheme of the Act wITh regard to the granting of permITs, held that this proviso does not come into play unless the vacancy is declared, applications are made and are pending for grant of permanent stage carriage permITs. The learned Judge went on to observe that from the provisions contained in Sections 46, 47, 48 and 57, IT was clear that the applications made suo motu for the grant of permITs, wIThout there being any vacancy on the route, are no applications under Section 46 of the Act wIThin the meaning of the first proviso of Section 62 of the Act. In this reported case also, IT was decided to open a new route between Muzaffarnagar and Budhana. Although the strength was fixed and the route was classified, the Regional Transport AuthorITy had not so far invITed any application for grant of permITs on the route in question. A number of applications had, however, been received for the grant of temporary permITs. The learned counsel for the State argued that this ruling did not apply because this new route between Kanpur and Auriya had been notified and the number of vacancies had been fixed. To my mind, the mere fact that the route had been notified and the vacancies had been fixed will not make any difference. The relevant question will be whether the vacancies had been declared and whether any applications had been invITed or not. As has been seen above, IT was decided in the meeting of 24-2-1972 that ten permITs would be issued, five to private parties and five to U. P. Government Roadways. But because the U. P. Government Roadways did not obtain any permITs, the Regional Transport AuthorITy is alleged to have ordered on 6-5-1972 that if wIThin one month the U. P. Government Roadways did not obtain the five permITs, they too may be given to private operators. It cannot, therefore, be said that when these temporary permITs were issued by the petITioner, any vacancy was existing. At any rate, there is nothing on the record to show that the Regional Transport AuthorITy had invITed any applications. On the contrary, annexure I to the counter affidavIT makes IT clear that a number of uninvITed applications had been received. As has been observed in the aforesaid case, the purpose of this proviso is to prevent abuse of power by the Regional Transport AuthorITy in granting temporary permITs. If applications for permanent permITs are pending in respect of certain vacancy, granting of temporary permITs during the pendency of such applications is bound to give unfair advantage to one party. The Regional Transport AuthorITy may, in certain cases, go on postponing consideration of applications for permanent permITs and may continue to grant temporary permITs to some. Keeping in view these provisions, the learned Judge observed that this provision of law will be attracted only when there is a vacancy and applications for permanent permITs have been invITed and are pending. I need not repeat that in the instant case there is nothing to show that applications had been invITed. On the contrary, IT appears that only some uninvITed applications were pending. Thus, on the material on record, IT is not possible to conclude that these temporary permITs had been granted in contravention of Section 62 of the Motor Vehicles Act. Reference may also be made to annexure 12 of the counter-affidavIT and in para 5 of this annexure 12, IT is clearly mentioned that the Regional Transport AuthorITy, Kanpur, had not invITed any application for permanent stage carriage permITs on this route and that only some uninvITed applications had been received for granting of permanent permITs on this route. Thus, there seems to be no doubt about the fact that applications for permanent permITs had not been invITed and had not been received in pursuance of any invITation. I, therefore, fail to see why the principle laid down in the aforesaid ruling should not be applicable to the instant case. The whole structure of the prosecution in all these cases seems to stand on the sole foundation that the petITioner did an act in violation of a provision of law and thus went out of his way to confer illegal benefIT on certain private parties and thereby he commITted an offence punishable under the said provision of the Prevention of Corruption Act. Obviously, if the sole foundation is nonexistent, the whole structure of the prosecution case must fail. In other words, the charge against the petITioner in all these cases is incorrect and there is thus no chance of any of these cases ending in conviction. I may now come to the other aspect of these cases. Assuming for the sake of argument that the petitioner did grant permits in contravention of Section 62 of the Motor Vehicles Act, the question still remains whether this alone is sufficient to make out a prima facie charge under Section 5 (1) (d) of the Prevention of Corruption Act, It would be useful to reproduce the said provision of the Prevention of Corruption Act, which runs as follows :- "A public servant is said to commit the offence of criminal misconduct in the discharge of his duty if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person, any valuable thing or pecuniary advantage.";