Capt. Hari Achutha Varrier v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 2[ND] 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 2[nd] day of August, 2021 ------------------------------------------- ## **O R D E R** 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 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 4 _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 5 _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 6 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 7 _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 8 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 9 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 10 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 11 _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 12 _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 13 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 14 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 15 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 16 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, p _rima_ Crl.M.C.No.7232/2017 17 _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 18 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 selfrestraint 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 19 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 20 ## **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