Kerala High Court
Capt. Hari Achutha Varrier vs State Of Kerala on 2 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
CRL.MC NO. 7232 OF 2017
AGAINST VC.NO.5/2016 OF VACB, KOZHIKODE
PETITIONER/ACCUSED:
CAPT. HARI ACHUTHA VARRIER
S/O. SHRI ACHUTHA VARRIER,DY.DIRECTOR OF PORTS
THIRUVANANTHAPURAMASOKAM, KALADI, POST,
MALAPPURAM DISTIRCT PIN-679562
BY ADVS.
SRI.SALISH ARAVINDAKSHAN
SRI.N.JAGATH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED ADDL CHIEF SECRETARY,DEPT. OF PORTS
D-1 GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001
2 DY.SUPERINTENDENT OF POLICE
VIGILANCE & ANTI CORRUPTION BUREAUNORTHERN RANGE
REP.BY BY PUBLIC PROSECUTORHIGH COURT OF KERALA
ERNAKULAM
3 ADDL.R3 IMPLEADED
HAFIS M.A.
FATHIMAS HOUSE,
PAPPINASSERY,
KANNUR DISTRICT
(AS PER ORDER DATED 09.03.2021 IN
CRL.M.A.NO.01/2021 IN CRL.M.C.NO.7232/2017)
SRI A RAJESH -SPL PP VACB
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 06.07.2021, THE COURT ON 02.08.2021 DELIVERED THE
FOLLOWING:
Crl.M.C.No.7232/2017
2
R.NARAYANA PISHARADI, J
**********************
Crl.M.C.No.7232 of 2017
-------------------------------------
Dated this the 2nd day of August, 2021
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ORDER
The petitioner is the first accused in the case registered as
V.C.No.5/2016/NRK by the Deputy Superintendent of Police,
Vigilance and Anti-Corruption Bureau (VACB), Northern Range,
Kozhikode under Sections 13(1)(d) read with 13(2) of the
Prevention of Corruption Act, 1988 (for short 'the Act') and also
under Section 120B of the Indian Penal Code.
2. The petitioner was the Deputy Director of Ports,
Thiruvananthapuram. The second accused in the case was the
Port Officer, Kozhikode and the third accused was the Assistant
Executive Engineer in the Port office at Beypore and the fourth
accused was the Senior Port Conservator, Azheekkal.
Crl.M.C.No.7232/2017
3. The third respondent made a complaint to the
Director, VACB alleging that corrupt practices were being
conducted in the sale of filtered sand and that there were grave
irregularities in the selection of co-operative societies for doing
the work of manual sand dredging at Azheekkal Port in Kannur.
A preliminary enquiry (quick verification) was conducted with
regard to the allegations in the complaint. On the basis of the
facts revealed in the preliminary enquiry, Annexure-A2 First
Information Report (F.I.R) was registered against the accused.
4. The material allegations/averments in Annexure-A2
F.I.R read as follows:
"Quick verification revealed that a meeting of Tender
evaluation committee was held on 30.03.2015 at
Port Office, Beypore in Kozhikode district for
reassessment of tenders submitted by 73
Co-operative societies in Kannur district for the
issuance of permit for Manual dredging of Azheekkal
Port Kannur for the year 2014-15. The tender
evaluation committee members and representative
of co-operative societies attended the meeting. In
that meeting the evaluation committee had rejected
Crl.M.C.No.7232/2017
tenders submitted by 21 co-operative societies for
certain reasons. Meantime the tender evaluation
committee had included some societies in the list of
52 societies for final selection process, which are not
eligible as per the existing government norms and
having disqualifications mentioned by the tender
evaluation committee itself to reject the tenders of
other societies and subsequently these societies
received permit for manual sand dredging at
Azheekal port for the year 2014-15. Thus,
verification prima facie revealed that the evaluation
committee members includes A1 Capt. Hari Achutha
Varrier, Deputy Director of Ports,
Thiruvananthapuram. A2 Capt.Aswani Prathap, Port
Officer, Kozhikode, A3 Shri.M.Viswanathan, Assistant
Executive Engineer, Port Office, Beypore and A4
Shri.Manoj Kumar.T.P, Senior Port Conservator,
Azheekkal being public servants, entered into a
criminal conspiracy among themselves and with
office bearers of some of the Co-operative societies
and in furtherance of their criminal conspiracy the
evaluation committee members abused their official
position and included some of the ineligible
co-operative societies in the list for final selection
process and ultimately these societies received
permit for manual sand dredging from Azheekkal
Crl.M.C.No.7232/2017
port for the year 2014-15 and thereby got undue
pecuniary advantage."
5. This petition is filed under Section 482 of the Code of
Criminal Procedure, 1973 (for short 'the Code') for quashing
Annexure-A2 F.I.R.
6. Though notice was served on the third respondent, he
has not entered appearance. Heard learned counsel for the
petitioner and the learned Public Prosecutor.
7. Learned counsel for the petitioner contended that, even if
the entire allegations against the petitioner in Annexure-A2 F.I.R
are accepted as true, they do not, even prima facie, disclose
commission of any offence by him. Learned counsel would also
submit that the petitioner was only one of the members of the
evaluation committee constituted by the Government to screen
and accept the tenders received from various co-operative
societies and the 20 co-operative societies which were ultimately
selected for conducting the dredging work in the Azheekal Port
had satisfied the eligibility criteria fixed by the Government.
Crl.M.C.No.7232/2017
8. When the case came up for hearing before another Bench
on 21.12.2020, learned Public Prosecutor had submitted that the
investigation of the case could be completed and final report
could be filed by April, 2021. However, even when the case came
up for hearing on 06.07.2021, there was no statement filed or
submission made on behalf of the investigating officer to the
effect that final report has been filed in the jurisdictional court.
The question, whether any evidence against the petitioner could
be collected or not, in the investigation conducted during the
period of nearly five years since the registration of the F.I.R, also
remains unanswered.
9. As per Annexure-A3 government order dated
16.12.2013, certain norms had been fixed for selection of
co-operative societies for conducting the work of manual
dredging. They were:
"1. The office and area of operation of the
Co-operative Society as per its bylaw, should be
within 10 kms radius of the Port limits.
2. Atleast 90% of the members of the
society should be fully involved in the activity of
Crl.M.C.No.7232/2017
manual dredging in the port limits and directly
experienced in manual dredging being traditional
sand dredging workers of the area and manual
sand dredging should be the main means of
livelihood for all the members.
3. All the members of the co-operative
society should be local residents who are
traditionally making their living by manual
dredging. An Identity Card should be obtained and
produced by these traditional sand workers from
the local authorities.
4. Only the members of the society are
permitted in the manual dredging and related
works (loading and unloading, purification, cleaning
works etc) within the port limits. If non members
are engaged for the work after getting the permit
and the Co-operative Society acts as an employer,
then the permit will be cancelled without notice.
5. One of the main objectives of the
society should be manual dredging by which the
members of the Co-operative society earn their
main livelihood.
6. The date of registration/modification of
bylaw etc of the society shall be at least 30 days
before the date of quotation notice."
Crl.M.C.No.7232/2017
10. The petitioner was the Deputy Director of Ports. He
was the team leader in the tender scrutinizing committee
constituted by the Director of Ports for the purpose of selecting
the tenders received from the co-operative societies for
conducting manual dredging of sand in various ports in the State
during the period 2014-15.
11. Annexure-A5 order of the Director of Ports shows that
the duty of the tender scrutinizing committee was to scrutinize all
the tenders received for manual dredging to be conducted during
the year 2014-15 and to submit a detailed report to the Director
of Ports for final approval. The tender scrutinizing committee was
also authorized to take all required decisions for the successful
completion of the tender process and to clarify any doubts from
any stakeholders.
12. Annexure-A8 is the copy of the minutes of the meeting
of the tender scrutinizing committee which was held on
30.03.2015, of which mention is made in Annexure-A2 F.I.R. It
shows that the committee short listed 52 co-operative societies
Crl.M.C.No.7232/2017
out of the 73 societies which had submitted tenders, after
rejecting the tenders of the remaining 21 societies.
13. Annexure-A9 is the copy of the evaluation report
prepared by the Director of Ports. It shows that, ultimately, 20
societies out of the 52 societies were selected for conducting the
work of manual dredging in the Azheekkal Port.
14. The sum and substance of the allegations against the
petitioner in Annexure-A2 F.I.R is that, being one of the members
of the tender scrutinizing committee, he hatched a conspiracy
with the other members of the committee and the office-bearers
of some of the co-operative societies and pursuant to such
conspiracy, selected ineligible co-operative societies and included
them in the list prepared for final selection and ultimately, those
societies received the permit for conducting manual sand
dredging in the Azheekkal Port for the period 2014-15 and those
societies got undue pecuniary advantage.
15. At this juncture, it is pertinent to note that, it was not
the duty or responsibility of the tender scrutinizing committee to
Crl.M.C.No.7232/2017
make final selection of the co-operative societies for conducting
the work of manual sand dredging in the ports. The final selection
of the societies had to be done by the Director of Ports. As
noticed earlier, the duty of the tender scrutinizing committee was
only to scrutinize the tenders and to prepare an evaluation report
and to submit it to the Director of Ports. Further, the ultimate
selection of the 20 co-operative societies was made not by the
petitioner or the tender scrutinizing committee but by the
Director of Ports.
16. In the statement dated 16.12.2017 filed by the
investigating officer, it is mentioned as follows:
"(1) The petitioner Sri.Hari Achuthawarrier was the
head of the committee formed for the selection of
Co-operative Society for manual sand dredging. (2)
He directed the Senior Port Conservator of various
Ports to collect the sealed tender forms from
societies and to produce the same before him
without opening. (3) Even though the Senior Port
Conservator of Azhikkal was well aware of the bogus
societies and the ground realities of the affairs, he
was denied chance to put remarks in the tender
Crl.M.C.No.7232/2017
form. (4) Senior Port Conservator, Azheekal
forwarded the tender without putting any remarks in
the remark column of senior port conservator.
(5) Hence the liability for selecting ineligible societies
is on the petitioner Sri.Hari Achuthavarrier and he is
trying to shift the burden to the Director of Ports
alone."
17. The above statement would create an impression that
the petitioner had deliberately prevented the Senior Port
Conservator from disclosing the disqualification of certain
societies. However, the fact remains that, the Senior Port
Conservator was a member of the tender scrutinizing committee
and that he had participated in the meeting of the committee
which was held on 30.03.2015. Therefore, the allegation that the
petitioner had denied chance to the Senior Port Conservator to
disclose the disqualification of any society can have no basis at all.
18. In the statement dated 16.12.2017 filed by the
investigating officer, it is also mentioned as follows:
"In this case evidence is being collected from
19 societies for investigation purpose. Genuineness
and eligibilities of all the 19 societies, involvement of
Crl.M.C.No.7232/2017
office bearers in the offence, role of directors and
members of societies has to be investigated. The
account of Societies for the period 2012-16 has to be
verified. Their bank transaction, amount of tax,
royalty etc paid in various departments etc. also has
to be assessed. The monetary gain by the delinquent
officers and the societies and corresponding loss to
public exchequer can be assessed only after
completing the investigation. Service of auditors of
State Co-operative department has already been
requested to audit account of the above 19
societies."
19. It is not known what was the need to check or audit
the accounts of the co-operative societies from the year 2012
onwards. The subject matter of investigation was the selection
of ineligible co-operative societies for conducting the work of
manual dredging for the period 2014-15. The eligibility criteria of
the co-operative societies have been noticed earlier. None of
these criteria relates to the financial credibility or stability of the
societies during the previous years.
20. Even if it is accepted that the investigation is the
exclusive domain of the police and that the court has no power to
Crl.M.C.No.7232/2017
direct in what manner the investigation has to be done, the fact
remains that more than 3½ years have elapsed after filing the
above statement. Still, the investigating officer could not submit
before this Court whether any evidence could be collected against
the petitioner to show that he has committed the offences
alleged against him in Annexure-A2 F.I.R.
21. The offence alleged against the petitioner is under
Section 13(1)(d) of the Act (before the amendment of the Act in
2018). This provision states that, a public servant is said to
commit the offence of criminal misconduct, if he, - (i) by corrupt
or illegal means, obtains for himself or for any other person any
valuable thing or pecuniary advantage; or (ii) by abusing his
position as a public servant, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or (iii) while
holding office as a public servant, obtains for any person any
valuable thing or pecuniary advantage without any public
interest.
Crl.M.C.No.7232/2017
22. To attract the provisions of Section 13(1)(d) of the Act,
the public servant should obtain for himself or for any other
person any valuable thing or pecuniary advantage by corrupt or
illegal means or by abusing his position as a public servant.
There is no allegation against the petitioner that, by corrupt or
illegal means, he obtained for himself or for any other person any
valuable thing or pecuniary advantage. There is also no allegation
against the petitioner that, while holding office as a public
servant, he obtained for any person any valuable thing or
pecuniary advantage without any public interest. The allegation
against the petitioner is that, by abusing his position as a public
servant, he allowed ineligible co-operative societies to obtain
pecuniary advantage. The co-operative societies, who got the
work of conducting manual dredging, would have obtained only
the money or remuneration, at the prescribed rate, for doing
such work. At any rate, there is no allegation that the work was
allotted to the co-operative societies for any amount which is
lesser than the prescribed rate.
Crl.M.C.No.7232/2017
23. Annexure-A2 F.I.R does not contain allegations which
would attract the offence under Section 13(1)(d) of the Act
against the petitioner. When the case came up for hearing before
another Bench on 22.07.2020, learned Public Prosecutor had
submitted that additional statement mentioning the details of the
investigation so far conducted would be filed. No such additional
statement was filed till the date of the final hearing of this case
on 06.07.2021. As noticed earlier, though it was submitted before
this Court that the investigation would be completed and final
report would be filed by April, 2021, nothing happened. Though
investigation has been conducted since the year 2016, the
investigating agency could not even point out before this Court
that some materials have been collected against the petitioner
indicating the involvement of the petitioner in the offence alleged
against him. It leads to the conclusion that, inspite of the
investigation conducted for about five years, the investigating
officer could not collect any evidence against the petitioner to
prove the offences alleged against him.
Crl.M.C.No.7232/2017
24. The salutary principle laid down by the Privy Council in
King Emperor v. Khwaja Nazir Ahmed: AIR 1945 PC 18 and
reiterated by the Supreme Court very often is that, in normal
circumstances, the court shall not thwart any investigation into
an offence but allow it to have its own course under the
provisions of the Code. The power of the police to investigate
cases where they suspect or even have reasons to suspect the
commission of a cognizable offence is unfettered. However, the
Privy Council has also made a note of caution that "if no
cognizable offence is disclosed and still more, if no offence of any
kind is disclosed, the police would have no authority to undertake
an investigation".
25. The condition precedent to the commencement of
investigation is that the F.I.R must disclose, prima facie, that a
cognizable offence has been committed. The right of the police to
conduct investigation is conditioned by the existence of reason to
suspect the commission of a cognizable offence and they cannot,
reasonably have reason so to suspect unless the F.I.R, prima
Crl.M.C.No.7232/2017
facie, discloses the commission of offence. If that condition is
satisfied, the investigation must go on. The Court has then no
power to stop the investigation. On the other hand, if the F.I.R
does not disclose the commission of a cognizable offence, the
Court would be justified in quashing the investigation on the
basis of the information as laid or received. A person, against
whom no offence is disclosed, cannot be put to any harassment
by the process of investigation (See State of West Bengal v.
Swapan Kumar Guha : AIR 1982 SC 949). Where the
uncontroverted allegations made in the F.I.R and the evidence
collected in support of the same do not disclose the commission
of any offence and make out a case against the accused, the
F.I.R as against him is liable to be quashed (See State of
Haryana v. Bhajan Lal : AIR 1992 SC 604).
26. Recently, in Neeharika Infrastructure Private
Limited v. State of Maharashtra : AIR 2021 SC 1918, the
Apex Court has reminded the High Courts that the police has the
statutory right and duty under the relevant provisions of the
Crl.M.C.No.7232/2017
Code to investigate into a cognizable offence and that the Court
shall not thwart any investigation into the cognizable offences or
scuttle it at the initial stage and that the power of quashing
should be exercised sparingly with circumspection. At the same
time, the Apex Court has also held that, the Court, if it thinks fit,
regard being had to the parameters of quashing and the self-
restraint imposed by law, more particularly the parameters laid
down in Bhajan Lal (supra), has the jurisdiction to quash the
FIR, where no cognizable offence or offence of any kind is
disclosed in the first information report and in such cases, the
Court will not permit an investigation to go on.
27. Application of the above principles to the facts of the
present case would lead to the conclusion that, Annexure-A2
F.I.R, as against the petitioner, is liable to be quashed by
invoking the power of this Court under Section 482 of the Code.
28. Before parting, it is to be noted that, there is no
allegation against the petitioner that he had any role in the sale
of sand, if any, conducted by the Co-operative Societies without
Crl.M.C.No.7232/2017
any bill. There is no such allegation made against the petitioner
in Annexure-A2 F.I.R.
29. Consequently, the petition is allowed. Annexure-A2
F.I.R, as far as it relates to the petitioner, is quashed. All
interlocutory applications are closed.
(sd/-) R.NARAYANA PISHARADI, JUDGE
jsr
Crl.M.C.No.7232/2017
APPENDIX OF CRL.MC 7232/2017
PETITIONER'S ANNEXURE:
ANNEXURE A1: TRUE PHOTOCOPY OF ORDER OF SUSPENSION
DATED 2.2.2017
ANNEXURE A2: CERTIFIED COPY OF THE FIR 4.11.2016
ANNEXURE A3: TRUE COPY OF THE GOVERNMENT ORDER
16.8.2013
ANNEXURE A4: TRUE COPY OF THE NIT DATED
ANNEXURE A5: TRUE COPYH OF THE ORDER DATED 13.01.2015
ANNEXURE A6: TRUE COPY OF THE MINUTES DATED 10.3.2015
ANNEXURE A7: PHOTOCOPY OF THE JUDGMENT IN
W.A.NO.2641/15 DT.02.202/15
ANNEXURE A8: TRUE COPY OF THE MINUTES OF THE SCRUTINY
COMMITTEE DATED 10.3.2015
ANNEXURE A9: TRUE COPY OF THE EVALUATION REPORT DATED
10.3.2015 PETITION FOR DIRECTION
ANNEXURE A10(a) PHOTOCOPY OF JUDGMENT IN WPC 4262/2015
DT.13/02/2015.
ANNEXURE A10(b) PHOTOCOPY OF JUDGMENT IN WPC 6153/2015
DT.03/03/2015
ANNEXURE A10(c) PHOTOCOPY OF JUDGMENT IN WPC 2950/2015
DT.13/10/2015
ANNEXURE A10(d) PHOTOCOPY OF JUDGMENT IN WPC 6439/2015
DT.04/03/2015.
RESPONDENTS' ANNEXURES:
NIL
TRUE COPY
PS TO JUDGE
