Murshid Jannath Raj M. vs State Of Kerala

R.Narayana Pisharadi, J

The petitioner is the first accused in the case C.C.No.9/2017 pending in the Court of the Enquiry Commissioner and Special Judge, Thrissur.

There are only two accused in the above case. The offences alleged against the accused in the case are punishable under Section 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.

The petitioner, the first accused in the case, was the Agricultural Officer in the Krishi Bhavan at Vatanappally. The second accused in the case was the Secretary of the Thrissur District Malsya Vipanana Thozhilali Sahakarana Sangham Limited (hereinafter referred to as 'the Sangham').

The prosecution case against the accused, as stated in the charge-sheet filed against them by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Thrissur, is as follows:

"During financial year 2012-13, while (A1) Sri.Murshidul Jannath Raj.M working as an Agricultural Officer in Vatanappilly Agricultural Office, with a criminal intention and vested interest, conspired with the Secretary of Thrissur District Malsya Vipanana Thozhilali Sahakarana Sangham Ltd., No.R 933 Sri.Manikandan.V. As a result of it, the Panchayat sustained great loss by purchasing low quality Neem cake and groundnut by suppressing the low rated tender and awarded tender at high rate to Thrissur District Malsya Vipanana Thozhilali Sahakarana Sangam No.R-933, Thrissur and fabricated intimation documents by sending as a genuine to other parties who submitted tender process and misled all ward members to award the tender to his vested party. A1 had not maintained any ledger or register prescribed by the Govt and KILA and no transparency is seen in all transactions. As per bill of the Thrissur District Malsya Vipanana Thozhilali Sahakarana Sangam No.R-933, the Secretary (A2) received the cost of Neem cake and groundnut on 09.02.13, 13.02.16, 16.02.13, 18.02.13, 28.02.13, 04.03.13, 03.03.13 in his period. By abusing his official position as public servants Sri.Murshidul Jannath Raj.M conspired with Sri.Manikandan.V to obtain pecuniary advantage to themselves each other and thereby Govt sustained a loss of Rs.2,39,375/-. A1 and A2 committed offences u/s 13(1)d read with 13(2) of PC Act and Sec.120(B) of I.P.C."

This application under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Act') is filed by the first accused for quashing Annexure-15 F.I.R and Annexure-17 final report in the case.

The Deputy Superintendent of Police, VACB, Thrissur has filed a statement on behalf of the first respondent.

Heard learned counsel for the petitioner and also the learned Public Prosecutor.

The petitioner has prayed for quashing not only Annexure-17 final report but also Annexure-15 F.I.R.

The petitioner had earlier filed Crl.M.C.No.2450/2015 before this Court challenging the F.I.R in the case. Annexure-16 is the copy of the order passed by this Court in that case. It shows that, this Court had closed the above Crl.M.C (Crl.M.C.No.2450/2015) by observing that it was too premature to conclude with regard to the merits or otherwise of the allegations against the petitioner and that the investigation had to go on. This Court also observed that, on the completion of the investigation, in case of any further grievance, it is open to the petitioner to challenge the final report. Thereafter, investigation of the case was completed and charge-sheet was filed against the two accused in the case. In view of Annexure-16 order passed by this Court, granting liberty to the petitioner to challenge the final report, the prayer again made by him for quashing the F.I.R in the case cannot be allowed.

The Vatanappally Grama Panchayat had entrusted with the petitioner the responsibility of implementing the scheme for distributing bio fertilizers to the farmers at subsidy rate. A Procurement Committee (hereinafter referred to as 'the Committee') was constituted. Sealed tenders were invited for supply of groundnut cake and neem cake. Total six tenders were received in response to the invitation. Two tenders were rejected as no earnest money deposit was made.

The particulars of the remaining four tenders received are as shown below:

Sl.No.

Name of Parties qualified

Rate of

Rate of

Groundnut

Neem cake

cake offered

offered

(Rs.)

(Rs.)

1

The Areacode Block Rubber &

37.25

16.50

Agricultural Marketing &

(Negotiable)

(Negotiable)

Processing Co-operative

Society Ltd. Malappuram

District.

2

The Chittur Agricultural

42.00

13.90

Co-operative Marketing Society

(Negotiable)

(Negotiable)

Ltd., Kozhinjambara, Palakkad

District.

3

The Thrissur District Malsya

41.50

16.50

Vipanana Thozhilali

(Negotiable)

(Negotiable)

Sahakarana Sangham Ltd.No:

R 933, Thrissur

4

The Perinthalmanna Taluk

Nil

18.45

Rubber Marketing

Co-operative Society

Ltd.No.M.333, Malappuram

District

The tender submitted by the Sangham, though it quoted a higher rate than others, was accepted on the ground that it had produced certificate of sample test and the others had not submitted such certificate.

There is specific allegation against the petitioner that he fabricated documents to make it appear that he had sent communication to the other three societies, who had submitted tenders, to produce sample test certificate, without actually sending any such intimation to them. It is alleged that he fabricated copy of the communication purported to have been sent to the other three societies and kept them with their tenders but he had not actually sent any such communication to them for producing the sample tested certificate. The prosecution has produced documents to show that no such communication was sent to the three societies whose tenders were not considered.

The witness Smt.Rajani Krishnanand (CW11) was the President of the Vatanappally Grama Panchayat during the period from 05.12.2002 to 05.12.2013. Her statement would show that the petitioner was entrusted with the implementation of the scheme regarding distribution of fertilizers to the farmers. Her statement further shows that the petitioner was the person who had opened all the tenders. Her statement would show that, when the tenders were invited, it was directed that samples of the neem cake and groundnut cake shall be produced but there was no condition that certificates of sample test conducted shall be produced. The tender was confirmed in favour of the Sangham only for the reason that the petitioner had made the members of the Committee to believe that the Sangham had produced proper sample test certificate. Since the petitioner had not sent any communication to the other societies for producing sample test certificate, they had not produced any such certificate. It is alleged that it was in the above circumstances that the tender submitted by the Sangham was accepted by the Committee. In other words, prima facie, what happened was that the petitioner, in pursuance to the conspiracy hatched by him with the Secretary of the Sangham, managed to produce sample test certificate from the Sangham only and got the tender submitted by the Sangham accepted.

The above facts and materials would,  prima facie, indicate the role played by the petitioner in manipulating the tender process and his role in the conspiracy alleged to have been hatched by him with the second accused.

Learned counsel for the petitioner contended that the charge-sheet filed in the case does not contain sufficient allegations which constitute the ingredients of the offences alleged against the petitioner. Learned counsel for the petitioner also contended that there is no allegation against the petitioner that he made any demand for any valuable thing or that he sought any pecuniary advantage and therefore, the offence under Section 13(1)(d) of the Act is not made out against him.

Section 13(1)(d) of the Act (before amendment) provided 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.

A perusal of Section 13(1)(d) of the Act makes it clear that, if the elements of any of the three sub-clauses are met, the same would be sufficient to constitute an offence of 'criminal misconduct' under that provision. The three wings of clause (d) of Section 13(1) are independent, alternative and disjunctive. Thus, under Section 13(1)(d)(i) of the Act, obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would amount to criminal misconduct. Under Section 13(1)(d)(ii) of the Act, "obtaining a valuable thing or pecuniary advantage" by abusing his official position as a public servant, either for himself or for any other person, would amount to criminal misconduct. Under Section 13(1)(d)(iii) of the Act, if a public servant, while he holds office, obtains for any person any valuable thing or pecuniary advantage without any public interest, it would amount to criminal misconduct.

The contention that, in order to attract an offence under Section 13(1)(d) of the Act, there shall be a demand made by the public servant for any valuable thing or pecuniary benefit, is without any merit. The decisions referred to in the petition in this regard have been rendered in the context of dealing with not only an offence under Section 13(1)(d) of the Act but also an offence under Section 7 of the Act.

In order to attract the offence under Section 13(1)(d) of the Act, it is not necessary that the accused public servant himself should have obtained any valuable thing or pecuniary advantage. It is sufficient that, by abusing his official position, the public servant had allowed any other person to obtain valuable thing or pecuniary advantage.

The  allegations  in  the  charge-sheet  prima  facie constitute the ingredients of an offence under Section 13(1)(d) of the Act against the petitioner. The prosecution has also produced sufficient materials which, prima facie, indicate the role of the petitioner in the conspiracy alleged to have been hatched by him with the second accused in the case to allow the Sangham to obtain pecuniary advantage in an illegal manner.

Since the materials produced by the prosecution establish a prima facie case against the petitioner with regard to the allegations contained in the charge-sheet, which constitute the ingredients of the offences alleged against him, the prayer for quashing the final report cannot be allowed.

Consequently, the petition is dismissed.