Kerala High Court
Abraham V Kuriakose vs State Of Kerala on 6 March, 2024
Author: K.Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 6TH DAY OF MARCH 2024 / 16TH PHALGUNA, 1945
CRL.MC NO. 1346 OF 2024
CRIME NO.1/2015 OF VACB, KASARAGOD, Kasargod
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.12 OF 2021 OF COURT OF
ENQUIRY COMMNR. & SPECIAL JUDGE, KANNUR AT THALASSERY
PETITIONERS:
1 ABRAHAM V KURIAKOSE
AGED 55 YEARS
S/O. KURIAKOSE V.A, VALANPARAMBIL HOUSE, KILIROOR NORTH
P.O, KOTTAYAM, PIN - 686020
2 MOOSA P
AGED 59 YEARS
S/O.MUHAMMED P, PARAYARUMMARATH HOUSE, MADAVOOR P.O,
KOZHIKODE, PIN - 673585
3 VINOTHU K.R
AGED 58 YEARS
S/O.RAGHAVAN K.V, KAVALAKKAL HOUSE, VENGOLA P.O,
PERUMBAVOOR ERNAKULAM, PIN - 683556
BY ADV ANWIN JOHN ANTONY
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
(REPRESENTING THE DEPUTY SUPERINTENDENT OF POLICE,
VIGILANCE & ANTICORRUPTION BUREAU, KASARAGOD), PIN -
682031
2 K.C. MOHANAN
S/O AMBU, KODAKUZHI HOUSE, KUTTIKOL KASARAGOD DISTRICT,
PIN - 671541
OTHER PRESENT:
G SUDHEER,PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
06.03.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 1346 OF 2024
2
K.BABU, J.
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Crl.M.C.No.1346 of 2024
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Dated this the 6th day of March, 2024
ORDER
The petitioners 1 to 3, who are accused Nos.6 to 8
respectively, in C.C No.12/2021 on the file of the Court of the
Enquiry Commissioner and Special Judge, Thalassery, seek to
quash the FIR, the Final Report and all further proceedings
against them pursuant to the registration of V.C No.1/2015 by
the Vigilance and Anti-Corruption Bureau, Kasaragod.
The Facts
2. Petitioner No.1 was working as Port Officer,
Kozhikode, petitioner No.2 was the Head Draftsman of Ports.
Petitioner No.3 was Port Officer, Alappuzha during 2013 -2014
3. As per order No.C3-6009-09-DP dated 17.08.2013 of
the Director of Ports, the Port Officer, Kozhikode, announced the
tender of Manual dredging and sale of port sand for the years
2013 and 2014 of various port zones within Kasaragod district
fixing the tender date as 03.09.2013. The Director of Ports
CRL.MC NO. 1346 OF 2024
constituted a tender assessment team headed by the petitioners
and other officials. The Government had issued revised
guidelines for manual dredging and sale of port sand for 2014
vide GO(MS) No.54/2013/F&PD. The tender process was carried
out in an open tender manner in the presence of the
representatives of the Co-operative Societies. Various
Co-operative Societies submitted the tender.
3.1. After technical evaluation, twelve societies were
shortlisted. The bids submitted by six societies were rejected as
they failed to enclose the required documents and file proper
tender forms. Out of the twelve qualified societies, four societies
namely Kasaragod Taluk Poozhithozhilali Kshema Sahakarana
Sangham, Kasaragod Hollow Bricks Nirmana Vyavasaya Kshema
Sahakarana Sangham, Manjeswaram Poozhithozhilali Kshema
Sahakarana Sangham and Port Manual Dredging Workers
Kshema Sahakarana Sangham had submitted certificates from
the registrar without furnishing the list of employees engaged in
manual dredging, which was a pre-requisite in the tender. On the
date of tender, the tender assessment team verified the list of
employees of the above four societies with the employee register
CRL.MC NO. 1346 OF 2024
kept in the port office. The tender forms submitted by these
societies without required documents should have been rejected
in the preliminary process itself, as done in the case of six other
societies. However, the tender team accepted the tenders
submitted by the above mentioned societies without having
sufficient documents. The representatives of the above four
societies were asked to go outside the tender hall, and later,
they were recalled to participate in the tender and allotted
different port zones for manual dredging. In the process of the
allotment, the tender committee showed some undue favour in
favour of these four Co-operative Societies.
3.2. The petitioners, with dishonest intention, committed
criminal misconduct and entered into a criminal conspiracy with
accused Nos.3, 4 and 5, who were the representatives of the
societies that participated in the tender and allotted manual
dredging of sand in port zones to three ineligible societies
represented by accused Nos.3, 4 and 5 by violating the tender
procedures and thereby obtained undue advantage by illegal
means.
3.3. The accused, pursuant to a criminal conspiracy,
CRL.MC NO. 1346 OF 2024
allotted manual dredging of sand in port zones to three ineligible
societies represented by accused Nos.3, 4 and 5 by violating
the tender procedures.
4. The VACB conducted the investigation and submitted
the final report against the petitioners and others alleging
offences punishable under Section 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act, 1988 and Section
120-B read with Section 34 of IPC.
5. Heard the learned counsel for the petitioners and the
learned Senior Public Prosecutor.
6. The learned counsel for the petitioners made the
following submissions:
6.1. There is no material to show that the petitioners
participated in the alleged conspiracy.
6.2. There is nothing to show that the petitioners or any
other accused obtained any pecuniary advantage or caused any
pecuniary loss to the Government. The prosecution also failed to
produce any material to show that any of the accused obtained
any pecuniary advantage consequent to the abuse of the
position of the petitioners as public servants.
CRL.MC NO. 1346 OF 2024
7. The learned Senior Public Prosecutor submitted that
the prosecution has placed materials sufficient to attract the
alleged offences.
8. Accused Nos.1 and 2 have approached this Court and
filed Crl.M.C.1071/2022 seeking to quash all further proceedings
pursuant to the registration of the crime. This Court allowed the
Criminal M.C. holding that the prosecution failed to produce any
material even to raise a suspicion of the commission of any
offences by the petitioners.
9. The relevant portion of the order in
Crl.M.C.No.1071/2022 is extracted below.
7. The crux of the prosecution allegation is that four
Cooperative Societies, which did not meet the required parameters
to participate in the tender, were allowed to participate in the
tender process. The prosecution alleges that this is an irregularity
committed by the tender committee led by the petitioners under a
conspiracy in which the petitioners maintained an illegal nexus with
the representatives of the Co-operative societies for the selection
of manual dredging during 2013-2014 under Kasaragod Port office.
The prosecution alleges that the above-mentioned Co-operative
societies did not meet the required parameters to participate in the
tender. It is alleged that the societies did not provide manual
dredging as one of their main objectives and that the employee
register was not produced along with the tender documents.
8. The petitioners produced Bye-Laws of the Co-operative
Societies (Anxs.V to VII), wherein it is evident that one of the
objectives of the formation of the societies was manual dredging
by the members of the Co-operative Societies to earn their main
livelihood.
CRL.MC NO. 1346 OF 2024
9. It may be true that the representatives of the societies did not
produce the required documents at the time of participation in the
tender. It may also be true that the representatives were initially
sent out of the tender hall and later recalled to participate in the
tender. Annexures-IV Minutes would show that though the
certificates produced by the above-mentioned Co-operative
Societies did not contain a certification that the members of those
societies were engaged in manual dredging, on verification of the
list of employees submitted by the societies, the committee was
convinced that the employees were engaged in manual dredging
and therefore those societies were treated as technically qualified.
10. Some of the Co-operative Societies that were on the low
ranking in technical criteria were not allotted any zones, as seen
from the minutes. The committee fixed the material selling price as
Rs.897/- and the amount to be paid to the Government as
Rs.457/- per metric tonne for manual dredging. The rates fixed for
all the societies were found to be the same. The question of
whether the petitioners committed the offences alleged is to be
ascertained based on the above facts.
11. They are alleged to have committed the offence under Section
13(1)(d) read with Section 13(2) of the PC Act. Section 13(1) (d)
of the PC Act reads thus:
"13. Criminal misconduct by a public servant.-- (1) A public
servant is said to commit the offence of criminal misconduct,--
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) 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; or"
12. A reading of Section 13(1)(d) of the PC Act would reveal that a
public servant can be prosecuted only if he has abused his position
as a public servant and obtained for himself or any other person
CRL.MC NO. 1346 OF 2024
any valuable thing or pecuniary advantage. The intention of the
legislation is not to punish a public servant for erroneous decision,
but to punish for corruption. To fall within the four corners of sub-
clause (ii) of Clause (d) of sub-section (1) of Section 13 of the PC
Act, the decision/conduct of the public servant must be dishonest,
amounting to corruption.
13. To attract the term 'abuse' as contained in Section 13(1)(d) of
the PC Act, the prosecution has to establish that the official
concerned used his position for something it is not intended. The
sum and substance of the discussion is that dishonest intention is
the gist of the offence under Section 13(1)(d) of the PC Act.
14. The prosecution allegations, at the most, point to certain
irregularities committed in the tender process. The prosecution
also alleges conspiracy among the petitioners and the other
accused.
15. It is trite that conspiracy need not be yet necessarily proved
by direct evidence. It is also capable of being proved by
circumstances pointing out the existence of a conspiracy to
commit an unlawful act.
16. In Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra
(AIR 1965 SC 682) a three-Judge Bench of the Apex Court held
that the offence of conspiracy can be established either by direct
evidence or by circumstantial evidence and the section will come
into play only when the Court is satisfied that there is reasonable
ground to believe that two or more persons have conspired to
commit an offence or an actionable wrong, that is to say, there
should be prima facie evidence that a person was a party to that
conspiracy.
17. In State of M.P. v. Sheetla Sahai [(2009) 8 SCC 617],
the Apex Court has held as follows:-
"Criminal conspiracy is an independent offence. It is
punishable separately. Prosecution, therefore, for the
purpose of bringing the charge of criminal conspiracy
read with the aforementioned provisions of the
Prevention of Corruption Act was required to establish
the offence by applying the same legal principles which
are otherwise applicable for the purpose of bringing a
criminal misconduct on the part of an accused."
18. In Zakia Ahsan Jafri v. State of Gujarat (AIR 2022 SC 3050),
CRL.MC NO. 1346 OF 2024
the Apex Court held that every act of commission and omission
would not result in hatching criminal conspiracy unless the acts
have been done deliberately and there is meeting of minds of all
concerned.
19. Dishonest intention is sine qua non to attract the offence
punishable under Section 13(1)(d) of the Act. Mere conduct and
action of the accused contrary to rules and departmental norms
would not amount to criminal misconduct by a public servant.
20. A fundamental principle of criminal jurisprudence with regard
to the liability of an accused is the element of mens rea. On the
principles of actus reus and mens rea, the learned author
Sri.Glanville Williams in the 'Textbook of Criminal Law' [Third
Edition, Dennis.J.Baker, page 95] comments thus:
"The mere commission of a criminal act (or bringing about
the state of affairs that the law provides against) is not
enough to constitute a crime, at any rate in the case of
the more serious crimes. These generally require, in
addition, some element of wrongful intent or other fault.
Increasing insistence upon this fault element was the
mark of advancing civilization."
21. On the principles of Criminal Liability, the learned author
Sri.K.D. Gaur in his book Criminal Law [Lexis Nexis, Butterworths,
page 37] explains thus:
"Criminal guilt would attach to a man for violations of
criminal law. However, the rule is not absolute and is
subject to limitations indicated in the Latin maxim, actus
non facit reum, nisi mens sit rea. It signifies that there
can be no crime without a guilty mind. To make a person
criminally accountable, it must be proved that an act,
which is forbidden by law, has been caused by his
conduct, and that the conduct was accompanied by a
legally blameworthy attitude of mind. Thus, there are two
components of every crime, a physical element and a
mental element, usually called actus reus and mens rea
respectively."
22. Dishonest intention is the crux of the offence under Section
13(1)(d) of the PC Act. The question of whether violation of the
rules and departmental norms would amount to the offence under
Section 13(1)(d) of the PC Act was considered by the Apex Court
in C.K.Jaffer Sharief v. State [2013 (1) SCC 205]. The Apex Court
held thus:
CRL.MC NO. 1346 OF 2024
"If in the process, the rules or norms applicable were violated
or the decision taken shows an extravagant display of
redundance it is the conduct and action of the appellant which
may have been improper or contrary to departmental norms.
But to say that the same was actuated by a dishonest intention
to obtain an undue pecuniary advantage will not be correct.
That dishonest intention is the gist of the offence under Section
13(1)(d) is implicit in the words used i.e. corrupt or illegal
means and abuse of position as a public servant."
23. In M. Narayanan Nambiar v. State of Kerala (AIR 1963 SC
1116), while dealing with Section 5 of the 1947 Act, the Apex
Court held that dishonest intention is the gist of the offence.
24. In the present case, the prosecution records reveal only a
violation of the rules and departmental norms or procedural norms
for the tender process. The prosecution failed to produce any
material to show that the petitioners, with dishonest intention,
committed any acts.
25. It is also important to note that there is absolutely no
allegation in the prosecution case that the petitioners obtained any
pecuniary advantage. The prosecution allegations would point to
some of the Co-operative Societies being enriched though they
were not qualified to participate in the tender. The members of all
the Co-operative Societies are labourers engaged in manual
dredging, which is hard labour. The societies were formed with the
intent to make a livelihood for the labourers who belong to the
marginalised communities. Most of the alleged enrichment or the
alleged pecuniary gain is in the form of their wage, or in other
words, they earned the money for their subsistence. There is
nothing to show that the amount due to the Government was not
paid. There are no materials to show that the Co-operative
Societies unlawfully obtained money by employing the labourers.
The income earned by the labourers by putting in their hard work
at any rate cannot be treated as pecuniary advantage within the
mischief of Section 13 of the PC Act.
26. The FIR and the Final Report do not disclose the offences
alleged. There is not even a suspicion of the commission of any
offences by the petitioners. Allowing the proceedings to continue
would be an abuse of the process of the Court, or the ends of
justice require that the proceedings ought to be quashed.
CRL.MC NO. 1346 OF 2024
10. The petitioners and the other accused are standing on
the same footing as that of accused Nos.1 and 2 (petitioners in
Criminal M.C. No.1071/2022). This is a case fully covered by
category (3), as enumerated in State of Haryana and Others v.
Bhajan Lal and Others (1992 Supp.(1) 335). This Court is of
the considered view that criminal proceedings consequent to
the registration of the crime as against the petitioners/accused
are liable to be quashed.
In the result, the Crl.M.C. is allowed. The Final Report in
V.C.No.1/2015 filed by the Vigilance and Anti-Corruption
Bureau, Kasargod and all further proceedings in
C.C.No.12/2021 on the file of the Court of the Enquiry
Commissioner and Special Judge, Thalassery against all the
remaining accused, including the petitioners, stand quashed.
Sd/-
K. BABU
JUDGE
saap
CRL.MC NO. 1346 OF 2024
PETITIONER ANNEXURES
Annexure-I TRUE COPY OF THE FIR IN V.C.NO.01/2015
ON THE FILE OF VACB, KASARGOD DATED
05.01.2015
Annexure-II TRUE COPY OF G.O. (MS) 17/2010/F&PD
DATED 18.03.2010
Annexure-III TRUE COPY OF G.O. (MS) 29/2012/F&PD
DATED 13.04.2012
Annexure-IV TRUE COPY OF THE MINUTES OF THE TENDER
OPENING MEETING HELD ON 03.09.2013
Annexure-V TRUE COPY OF THE BYE-LAWS OF KASARAGOD
TALUK POOZHI THOZHILALI KSHEMA
SAHAKARANA SANGHAM
Annexure-VI TRUE COPY OF THE BYE-LAWS OF HOLLOW
BRICKS NIRMANA VYAVASAYA KSHEMA
SAHKARANA SANGAM
Annexure-VII TRUE COPY OF THE BYE-LAWS OF PORT
MANUAL DREDGING WORKERS KSHEMA
SAHAKARANA SANGHAM
Annexure-VIII TRUE COPY OF THE FINAL REPORT IN
V.C.NO.01/2015 ON THE FILE OF VACB,
KASARGOD DATED 27.03.2021 ALONG WITH
161 STATEMENTS, MAHASSARS AND
DOCUMENTS
Annexure-IX TRUE COPY OF JUDGMENT DATED 17.01.2024
OF THIS HON'BLE COURT IN CRL.M.C
//True copy//PA to Judge
