Kerala High Court
Dr. Thomas George. K vs State Of Kerala on 7 November, 2024
2024:KER:83307
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
CRL.MC NO. 1239 OF 2024
CRIME NO.3/2016 OF VACB, THIRUVANANTHAPURAM IN CC NO.31 OF 2023 OF
ENQUIRY COMMISSIONER & SPECIAL JUDGE, THIRUVANANTHAPURAM
PETITIONER/ACCUSED NO.4:
DR. THOMAS GEORGE. K
AGED 70 YEARS
S/O. K.J. GEORGE, KARUKATHARA, GOWREESPATTOM RESIDENTIAL
ASSOCIATION NO. 207, KOTRA LANE, GOWREESPATTOM,
PATTOM P.O., THIRUVANANTHAPURAM, PIN - 695004
BY ADVS.
K.K.DHEERENDRAKRISHNAN
N.P.ASHA
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
SRI.A.RAJESH, SPECIAL PUBLIC PROSECUTOR (VIGILANCE)
SMT.REKHA S., SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.10.2024,
THE COURT ON 07.11.2024 PASSED THE FOLLOWING:
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Crl.M.C. No.1239 of 2024
2
C. JAYACHANDRAN, J.
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Crl.M.C. No.1239 of 2024
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Dated this the 07th day of November, 2024
ORDER
The petitioner herein is the fourth accused in
V.C.No.3/2016/SCT of Vigilance and Anti-Corruption Bureau
('VACB', for short), Special Cell, Thiruvananthapuram. The
offences are alleged under Section 13(1)(d), r/w Section
13(2) of the Prevention of Corruption Act ('P.C. Act', for
short). The petitioner seeks quashment of Annexure-II
final report and all further proceedings thereto in
C.C.No.31/2013 pending before the Special Court,
Thiruvananthapuram.
2. The prosecution would allege that
Sri. Subairkhan, the former Managing Director, Kerala
State Warehousing Corporation, Sri.G.Mohandas, the
former Chairman, Kerala State Warehousing Corporation
and Sri.T.Y.Yusuf, the former Director Board member of
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Kerala State Warehousing Corporation, abused their
official positions as public servants and conspired with
Sri.K.Thomas George (Technical Expert and a private
person) and in furtherance of the criminal conspiracy,
reduced the cut off mark in written examination,
committed malpractices in group discussion and interview
for the appointment of 21 Assistant Managers in Kerala
State Warehousing Corporation ('Warehousing
Corporation', for short), due to favoritism. In the enquiry,
it is prima facie revealed that they committed the
offences u/s 13(2), r/w 13(1)(d) of the PC Act and 120B of
IPC.
3. Heard the learned counsel for the petitioner/A4
and learned Special Public Prosecutor (Vigilance). Perused
the records.
4. Learned counsel for the petitioner would submit
that the petitioner was only a technical expert, invited for
conducting group discussion and interview, for selection
to the post of Assistant Managers in the Warehousing
Corporation. Based upon the performance of each
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candidate, marks were assigned, other than which,
nothing has been done by the petitioner. No material,
whatsoever, has been collected in the investigation
against the petitioner/A4, as revealed from Annexure-II
final report, pointing to his guilt. As a matter of fact,
except a bald allegation that the petitioner was also there
in the conspiracy alleged to have been made by
accused nos.1 to 3, there is no allegation/material against
the petitioner so as to rope him in, in the instant crime.
For the things which transpired upto the decision to invite
the petitioner for the purpose of conducting interview and
group discussion, the petitioner has no knowledge, or for
that matter, he has no answerability. On such premise, the
petitioner seeks to quash Annexure -II final report and all
further proceedings in C.C. No.31/2013, insofar as the
petitioner/A4 is concerned.
5. This application was opposed by the learned
Special Public Prosecutor. It was pointed out that
candidates who obtained good marks in the written
examination have been allotted poor marks in the group
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discussion and interview, with the result, ineligible
candidates were selected and eligible candidates were
elbowed out. The candidates who were selected were
persons of the choice of accused nos.1 to 3; and A4
conspired with the said accused persons to fetch such
candidates the job of Assistant Managers illegally and
thus, entitling them for undue pecuniary advantage. On
such premise, learned Special Public Prosecutor would
seek the instant Criminal Miscellaneous Case to be
dismissed.
6. Having heard the learned counsel appearing for
the respective parties, this Court finds considerable merit
in the contentions urged by the petitioner/A4. I perused
Annexure-II final report. In page nos.35 and 36 of
Annexure-II, the facts are narrated, indicating that
accused nos.1 to 3 have entered into a criminal
conspiracy to induct candidates of their choice for being
appointed as Assistant Managers in the Warehousing
Corporation. It is further stated that, in furtherance of the
said conspiracy, the cut off marks in the written
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examination was reduced from 60% to 40% in the pretext
of inclusion of candidates belonging to reserved
community. 40 marks originally earmarked for interview
was later split up as 20 for interview, and 20 marks for
group discussion, which was also with the malafide
intention to include candidates of the choice of the
accused. The specific allegation is that the petitioner/A4
was selected as a subject expert pursuant to the
conspiracy, so that persons of the choice of accused nos.1
to 3 will be selected. It is also alleged that higher marks
were given to the candidates of the choice of A1 to A4,
thereby including the choice of the petitioner, as well. In
page no.36 of the final report, the allegation is that, all
the four accused persons have conspired together,
reduced cut off marks in the written examination,
committed malpractices in group discussion and
interview, so as to ensure appointment of 21 Assistant
Managers in the Warehousing Corporation, thus
committing offences under Section 13(1)(d), r/w Section
13(2) of the P.C. Act and under Section 120B of the Penal
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Code.
7. A perusal of Annexure-II final report would not
indicate any material against the petitioner/A4 pointing to
his guilt, except bald allegations that he had conspired
with accused nos.1 to 3 in reducing the marks and in
committing malpractices during interview and group
discussion. Even that allegation is not there in the initial
part of the narration of the facts, insofar as the
participation of the petitioner/A4 is concerned in the
conspiracy. This Court notice that no corrupt practice can
be inferred only on account of the fact that certain
candidates who faired well in the written examination
were awarded with lesser marks in the interview and
group discussion. It cannot be accepted as a proposition
that the candidates who perform well in the written
examinations will perform equally well in the interview
and group discussion as well. It is worthwhile in this
regard to notice that a challenge made to the instant
selection, at the instance of some of the candidates who
participated in the selection process, has been repelled by
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this Court vide Annexure-III judgment, wherein the above
referred aspect has been taken note of, in paragraph no.8,
which is extracted here below:
"Though it is seen that the petitioner scored high
marks in written test and group discussion, there
in no uniform rule or principle that such a person
would dare well in the interview also. It is quite
probable that candidates who get very low marks
in the written test may perform well in discussion
and interview."
8. What remains is, the malpractices alleged to
have been committed in group discussion and interview,
about which, no reference, whatsoever, is there in the
final report, except a bald assertion. A statement of facts
was filed by the learned Special Public Prosecutor in this
matter, wherein it is seen alleged that, out of 20 marks
earmarked for group discussion, the petitioner/A4 had
allotted maximum of 5 marks to several candidates, so as
to support the candidates of the choice of accused nos.1
to 3. There is also an allegation that the
petitioner/A4 was selected as a subject expert, with
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malafide intention. However, the second allegation is not
substantiated by any material; as regards the first, no
inference, assigning guilt can be made from the fact that
maximum marks has been given by the subject expert to
some candidates. There is no evidence/material, which
would even prima facie or remotely suggest that marks
were not allotted on a rational basis, thereby meaning to
say that, full marks were given to candidates who
performed poor in the interview. It is not clear whether the
interview was video graphed or not. The question as to
whether there has been violation of the concerned rules,
manual etc are not something to which petitioner/A4 is
answerable, leaving alone the question whether it
amounts corrupt practice, so as to attract offences under
the P.C. Act. The petitioner has no role in reducing the cut
off marks. Nor has he any role in selecting candidates. His
minimal role is to be a member of the committee, which
evaluated performance of candidates in group discussion
and interview. As regards the limited role, nothing has
been brought out, even after the completion of
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investigation, to indicate his connivance and complicity in
the selection process, which was alleged to be tainted, so
as to include the candidates of the choice of accused nos.
1 to 3.
9. In the circumstances, this Court is of the
opinion that the instant prosecution as against the present
petitioner/A4 cannot survive in the test of law. Recently,
this Court, in Mahimkutty v. State of Kerala [2024 (5)
KLT 157] held that, prosecution on the strength of a
charge, unsupported by any material, atleast indicating a
conspiracy, is not going to create any result in favour of
the prosecution. It was also held that, where the charges
leveled are vague and not supported by any material,
whatsoever, the continuance of the prosecution is a farce,
spoiling the judicial time of the Court, besides being a
torture to the person arraigned as an accused.
10. In the attendant facts, it can therefore be
concluded that, in the absence of proper materials in
Annexure-II final report to prove the offence alleged
against the accused, the same will not hold good.
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The Criminal Miscellaneous Case is allowed and
Annexure-II final report and all further proceedings in
C.C.No.31/2013 pending before the Special Court,
Thiruvananthapuram, as against the petitioner/A4 shall
stand quashed
Sd/-
C. JAYACHANDRAN
JUDGE
SKP/07-11
2024:KER:83307
PETITIONER'S ANNEXURES:
ANNEXURE I TRUE COPY OF THE FIR IN VC. NO. 3/2016/SCT OF
VACB, SPECIAL CELL, THIRUVANANTHAPURAM
ANNEXURE -II TRUE COPY OF THE final report IN FIR IN VC. NO.
3/2016/SCT OF VACB, SPECIAL CELL,
THIRUVANANTHAPURAM
ANNEXURE-III A TRUE COPY OF THE JUDGMENT DATED 03.04.2018 IN
ANNEXURE-IV A TRUE COPY OF THE INTERIM ORDER DATED
08.01.2024 IN WP(CRL) NO.7/2024 PASSED BY THIS
HONOURABLE COURT
RESPONDENT'S ANNEXURES:NIL
TRUE COPY
P.A. TO JUDGE
