1) Maladministration is a question of opinion (not fact). 2) Some leading cases in SC (pro and contra) are
a) K. Kalimuthu vs State By D.S.P on 30 March, 2005 http://www.indiankanoon.org/doc/1074322/ "Criminal Procedure Code, 1973 - Section 197 - Public servant - Sanction for prosecution - Official duty - Implies that act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty - Provision does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of his..." b) S.K. Zutshi vs. Bimal Debnath 2004 A.I.R. (SC) 4174, c) Sankaran Moitra vs. Sadhna Das 2006(2) R.C.R. (Criminal) 389 d) Parveen Sultana vs. State of West Bengal and another 2009(3) Supreme Court Cases 398 e) Bholu Ram vs. State of Punjab 2008(4), RCR (Criminal) 187 etc etc. "18. The direction which had been given by this Court, as far back as in 1971 in Bhagwan Prasad Srivastava case holds good even today. All acts done by a public servant in the purported discharge of his official duties cannot as a matter of course be brought under the protective umbrella of Section 197 Cr.P.C. On the other hand, there can be cases of misuse and/or abuse of powers vested in a public servant which can never be said to be a part of the official duties required to be performed by him. As mentioned in Bhagwan Prasad Srivastava case the underlying object of Section 197 Cr.P.C is to enable the authorities to scrutinize the allegations made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. However, as indicated hereinabove, if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C and have to be considered dehors the duties which a public servant is required to discharge or perform. Hence, in respect of prosecution for such excesses or misuse of authority, no protection can be demanded by the public servant concerned." Sarbajit --- In [email protected], Vijay Kapoor <vijay99kap...@...> wrote: > > Sir, I am not an advocate, but from what I read in the press a few years ago, > the SC (effectively) ruled that actions contrary to law or provisions etc. is > not part of official duty and. therefore, the official is accountable.But, > even if such a SC ruling was not there, I feel a malafide public servant > could be challenged in law. Please reconfirm with a good advocate and let > us also know what he says. > Regards. > > --- On Tue, 5/18/10, Col NR Kurup <colnrku...@...> wrote: > > From: Col NR Kurup <colnrku...@...> > Subject: [rti_india] Re:Prosecution of Govt Servant > To: [email protected] > Date: Tuesday, May 18, 2010, 2:49 AM > > Request for little more clarification. For Eg ., if a government > > servant is alleged maladministration, how do we deal with it. > > Maladministration cannot be part of his official duties; but > > maladministration is done in discharge of his duties. >
