lodging ccomplaint against public servant and government c
Vikram Patil
(Querist) 23 January 2016
This query is : Resolved
Dear experts,
I wish to know that,
Is it necessary to obtain previous sanction for lodging a complaint against the Municipal Corporation and its Contractor under section 409 of IPC
Facts are as followes-
1) The Municipal Corporation has passed a tender and gave a building contract to a contractor who was also a panel engineer of Corporation. He himself gave the estimate of work to the Corporation before the tender is published and upon that estimate the "government sanction" of work was obtained by Corporation.
3) The work done is not as per specifications.
4) some social activists stopped that work before completion and now they want to lodge private complaint against Corporation and Contractor under S.409 of IPC because they think that police will not co-operate them in this matter.
Now my query is -
1) whether private complaint can be lodged against Corporation and the contractor without going to police ? and
2) is prior sanction necessary to lodge the complaint ? if yes then of which authority?
3) Apart from S. 409 of IPC, which penal sections will be attracted?
Thank you.
Sudhir Kumar, Advocate
(Expert) 24 January 2016
if the MC is in a UT then CBI or else the State Vigilance Bureau is the correct forum to approach and if they do not take action then writ mandamus lies in high court.
they know how/when to seek sanction of prosecution.
J K Agrawal
(Expert) 24 January 2016
No any previous sanction required for file a case under section 409 (or mostly other offences) but it is required in some case relating to public administration and justice.
Rajendra K Goyal
(Expert) 24 January 2016
Lodge complaint with the state vigilance.
Guest
(Expert) 24 January 2016
Mr. Vikram,
Can you please clarify the following points:
1) In order to justify your case of breach of trust against the municipal corporation or the contractor, what link you have got with the building constructed by the contractor on a tender floated by the municipal corporation?
2) What sort of criminal breach of trust was committed to you by the municipal corporation or the contractor?
Vikram Patil
(Querist) 24 January 2016
Thanks all.
Dhingra sir, Following are the documents which indicates the misappropriation of public property
1) Before inviting tender the corporation took the estimate from the contractor and this estimate was presented before concern authority (Executive Engineer, Maharashtra Jeevan Pradhikaran) to get the sanction of work and upon this estimate the corporation obtained the sanction of the work. [We have the copy of that estimate ]
2) The costing given by the contractor is very high than market rate ( e.g. he has given the rate of a shutter Rs. 46000/- and market rate is Rs. 12000/- to 15000/-)
3) The tender is given to the same contractor. [We have the copy of tender, copy of the work order given to the contractor, copy of agreement between corporation and the contractor regarding the work]
4) The work is half done and some social activists gave an application to the District Collector and tahsildar about the lower quality of work. The tahsildar made the "panchnama " of the work. It is clearly seen in panchnama that the work is not as per specifications.[we have got the copy of that panchnama]
5) Can it not be said that the officers of corporation, concern governing body and the contractor have made the criminal breach of trust in respect of the public money and public property ? Are these documents not sufficient to prove the dishonest intention of them to misappropriate the property entrusted with them ?
Waiting for suggestions and more detailed advice. Thank you.
Vikram Patil
(Querist) 24 January 2016
Thanks all.
Dhingra sir, Following are the documents which indicates the misappropriation of public property
1) Before inviting tender the corporation took the estimate from the contractor and this estimate was presented before concern authority (Executive Engineer, Maharashtra Jeevan Pradhikaran) to get the sanction of work and upon this estimate the corporation obtained the sanction of the work. [We have the copy of that estimate ]
2) The costing given by the contractor is very high than market rate ( e.g. he has given the rate of a shutter Rs. 46000/- and market rate is Rs. 12000/- to 15000/-)
3) The tender is given to the same contractor. [We have the copy of tender, copy of the work order given to the contractor, copy of agreement between corporation and the contractor regarding the work]
4) The work is half done and some social activists gave an application to the District Collector and tahsildar about the lower quality of work. The tahsildar made the "panchnama " of the work. It is clearly seen in panchnama that the work is not as per specifications.[we have got the copy of that panchnama]
5) Can it not be said that the officers of corporation, concern governing body and the contractor have made the criminal breach of trust in respect of the public money and public property ? Are these documents not sufficient to prove the dishonest intention of them to misappropriate the property entrusted with them ?
Waiting for suggestions and more detailed advice. Thank you.
Guest
(Expert) 25 January 2016
Mr. Vikram,
Your description is irrelevant when you have not replied my specific questions. Unless you provide information, how you are concerned with the case in individual capacity and what sort of breach of trut has happened to you, how appropriate advice can be syggested to you?
Further to my previous questions, also please intimate in which capacity you want to file a case under section 409 of IPC, when you are not able to show how you are affected by the matter?
Vikram Patil
(Querist) 25 January 2016
Dear Sir,
I myself and other activists are the citizens of the town where the contract is given. we are the taxpayers of the corporation. The payment of the work is to be paid from the tax collected by municipal corporation. The construction is on the reserved for public garden.
I am not personally affected but it is a misuse of the tax collected by corporation from citizens of the city.
So we want to file a criminal case against corporation, elected members of corporation and the contractor.
We wish to file the case as the citizens of the town.
J K Agrawal
(Expert) 26 January 2016
Dear Mr Vikram.
I can understand that if the hard earned money is spent like this, it is really breach of trust and all the officers must be punished severely.
But the criminal laws are strict. this case does not come under 409 IPC as there is payment of tax but no any 'entrustment'.
To file a criminal case is nothing adverse but Rather than sticking to IPC only, it is advisable that you should file a civil suit. You will get a stay order very easily and at once and will get effective remedy against all these persons.
A writ before the High Court is a nice idea and you will get a wholesome relief, quickly.
You can take recourse of government existing system to get redressal.
Vikram Patil
(Querist) 26 January 2016
Thanks Agarwal sir. We will certainly go for civil suit and we have already made a complaint to District Collector. Let's see what happens.
Guest
(Expert) 26 January 2016
Mr. Vikram,
When you have already made a complaint to the District Colelctor, why don't you pursue your case with him, instead of resorting to a venture which can draw a flak on you, as neither you have any direct concern with the contractor, the tender, the tender awarding authority, nor any breach of faith has been committed with you by the contractor? It becomes the duty of the collector to refer the case to the concerned authority, the police, the viglance or the CBI, as may be feasible and permissible under law.
You cannot assume that the whole system should revolve around you, if aggrieved on the act of some one, who is responsible to some other person or agency, not to you directly in any way. There is definitely a line of distinction between a general complaint and a personal legal case.
So, you can invoke section 409 only if you are directly affected by the a person upon whom you have entrusted your own property and is responsible to you, but not in a case where the contractor is responsible to some other person or organisation.
Vikram Patil
(Querist) 27 January 2016
Thanks for advice Dhingra sir, But as seen in "Giridhar Narayan Kurve vs State of Maharashtra " the private citizen has filed a complaint against government officers for breach of trust though he himself is not party to it. And in the same case and also if we see S.405 of IPC, it is seen that the public servant " entrusted with property or with any dominion over property dishonestly misappropriates that property in violation of any direction of law prescribing the mode in which the property is to be discharged " is a criminal breach of trust. Now property may be public property. So my question is that is it necessary that the complainant himself should have been affected by such misappropriation? And if it is so then how the complaint of a private individual is entertained in the case I mentioned earlier?
Guest
(Expert) 27 January 2016
Mr. Vikram,
My conviction is clear. You may better try to make proper distinction between individual sections as per the provisions contained from section 403 to 409, more specifically between sections 405 and 409.
However, if you want to test my knowledge about sections 405 & 409 vis-a-vis the court case referred to by you as well as the documents available with you as evidence against the municipality and the contractor, you will have to spend some money in the shape of my professional fee, as there is usually no end to supplementary queries in an academic query.
So, if your query relates to some real case, you will have to send scanned copies of all the connected documents to me through email for my examination/analysis.
Vikram Patil
(Querist) 27 January 2016
Thanks Dhingra sir and Agarwal sir for sharing your knowledge.
