CRL.M.C. No. 1346 of 2024 (Abraham V Kuriyakose, Moosa P, Vinothu K.R. v State of Kerala)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 6[TH] 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. ------------------------------------ ## Crl.M.C.No.1346 of 2024 -----------------------------------Dated this the 6[th] day of March, 2024 ## O R D E R 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 ``` ``` 3 ``` 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 ``` ``` 4 ``` 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 ``` ``` 5 ``` 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 ``` ``` 6 ``` 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 ``` ``` 7 ``` 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 ``` ``` 8 ``` 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 subclause (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 ``` ``` 9 ``` 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 ``` ``` 10 ``` “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 ``` ``` 11 ``` 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 ``` ``` 12 ``` ## **`APPENDIX OF CRL.MC 1346/2024`** ``` PETITIONER ANNEXURES Annexure-ITRUE COPY OF THE FIR IN V.C.NO.01/2015 ON THE FILE OF VACB, KASARGOD DATED 05.01.2015 ``` ``` Annexure-IITRUE COPY OF G.O. (MS) 17/2010/F&PD DATED 18.03.2010 Annexure-IIITRUE COPY OF G.O. (MS) 29/2012/F&PD DATED 13.04.2012 Annexure-IVTRUE COPY OF THE MINUTES OF THE TENDER OPENING MEETING HELD ON 03.09.2013 Annexure-VTRUE COPY OF THE BYE-LAWS OF KASARAGOD TALUKPOOZHITHOZHILALIKSHEMA SAHAKARANA SANGHAM Annexure-VITRUE COPY OF THE BYE-LAWS OF HOLLOW BRICKS NIRMANA VYAVASAYA KSHEMA SAHKARANA SANGAM Annexure-VIITRUE COPY OF THE BYE-LAWS OF PORT MANUALDREDGINGWORKERSKSHEMA SAHAKARANA SANGHAM Annexure-VIIITRUE COPY OF THE FINAL REPORT IN V.C.NO.01/2015 ON THE FILE OF VACB, KASARGOD DATED 27.03.2021 ALONG WITH 161STATEMENTS,MAHASSARSAND DOCUMENTS Annexure-IXTRUE COPY OF JUDGMENT DATED 17.01.2024 OF THIS HON'BLE COURT IN CRL.M.C NO.1071/2022 ``` //True copy//PA to Judge