Dredger Scam: Kerala High Court Quashes FIR Against Former DGP Jacob Thomas [Read Judgment]

The Kerala High Court on Monday quashed the FIR registered against former Director General of Police Dr. Jacob Thomas in the dredger scam case where he was accused of engaging in tender rigging.

Justice R. Narayana Pisharadi noted that although its power under Section 482 of the CrPC shall be exercised sparingly and with circumspection in rare cases to quash the F.I.R, it should not feel inhibited when the circumstances warrant the exercise of such power to do substantial justice to the parties.

"The Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of the proceedings would otherwise serve the ends of justice."

It also noted that when the decision to accept the tender submitted by M/s.IHC Merwede was the result of the collective wisdom of a competent committee of public servants, only one among them cannot be selected and crucified on the allegation of corruption as if it is a personal or individual decision.

"When culpability is attributed on the basis of a collective decision taken by a group of persons, one person cannot be singled out from them and criminal proceedings cannot be initiated against only one of them. If it is done, it indicates malice on the part of the investigating officer."  

Background:

The petitioner is an IPS officer who had served as DGP in the Kerala Cadre. He was the Director of Ports during the period from 16.09.2009 to 17.03.2014.

A third party who was impleaded as the third respondent in the matter had complained to the Government alleging certain irregularities in the purchase of cutter suction dredger for the Ports Department.

Accordingly, the Additional Chief Secretary (Finance) conducted an inspection at the Directorate of Ports and an FIR was registered against the petitioner by the Vigilance and Anti-Corruption Bureau (VACB) under Section 13(1)(d)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120B of the Indian Penal Code.

The primary allegation against him was that he purchased a cutter suction dredger from M/s IHC Merwede for an exorbitant amount by overlooking the lowest tender which was submitted by M/s BEML. 

Relevant Findings:

The Court relied on the Apex Court decision in State of Haryana v. Bhajan Lal [AIR 1992 SC 604] where a list of conditions have been mentioned as to when an FIR is qualified to be quashed. 

Thereafter, it made the following observations:

• Not Criminal Misconduct:

The Court noted that in C. Chenga Reddy v. State of A.P [AIR 1996 SC 3390], the Apex Court had held that even when codal violations were established and it was also proved that there were irregularities committed by allotting/awarding the work in violation of circulars, that by itself was not sufficient to make out a criminal case under the Act.

This indicated that procedural violations, even if accepted as true, without anything more, do not constitute an offence under Section 13(1) (d)(ii) of the Act. Accordingly, the Court held:

"Even if the entire allegations against the petitioner (excluding the allegation of ignoring the lowest bid, which shall be discussed a little later) are accepted as true, either individually or cumulatively, they do not constitute criminal misconduct within the purview of Section 13(1)(d)(ii) of the Act."

• Fundamental Allegation Disproved

The primary allegation against the petitioner in the FIR was that he purchased Cutter Suction Dredger from M/s IHC Merwede overlooking the lowest quoted M/s BEML by paying an amount of Rs.19,79,03,000/- instead of the sanctioned amount of Rs.8 Crores by the Government and as such caused loss to the public exchequer and corresponding gain to the Accused.

However, the Court noted that the Government had accorded revised administrative sanction for Rs.20 crores. 

Similarly, the Department Purchase Committee after discussing the minute details of the tenders submitted by the two companies had found that the tender submitted by M/s IHC Merwede was the lowest. 

Moreover, it was noted that the acceptance of the tender was made by the Government, not by the petitioner as alleged, on the recommendation of the Department Purchase Committee. 

Therefore. the allegation in the FIR does not reveal the commission of any offence under Section 13(1)(d)(ii) of the Act by the petitioner.

• Collective Decision

It was clear that the decision to accept the tender submitted by M/s.IHC Merwede was the collective decision of the members of the DPC and not the individual decision of the petitioner who was only one of its members. 

Strangely, the F.I.R was registered only against the petitioner. The three other members of the DPC, who were parties to the decision taken to accept the tender submitted by M/s.IHC Merwede and who were representatives of the Government, do not figure as accused in the F.I.R.

If the petitioner has committed criminal misconduct by taking the decision, in his capacity as one of the members of the DPC, to accept the tender submitted by M/s.IHC Merwede, it eludes comprehension why the other members of the DPC cannot be attributed with the same culpability." 

On this aspect, the Court relied on a few Apex Court decisions to conclude that when culpability is attributed on the basis of a collective decision taken by a group of persons, one person cannot be singled out from them and criminal proceedings cannot be initiated against only one of them. If it is done, it indicates malice on the part of the investigating officer.  

• Does Not Constitute Criminal Conspiracy

It is alleged that the petitioner conspired with M/s. IHC Merwede and pursuant to such conspiracy awarded the contract to that company. However, that company or any officer of that company is not named as accused in the FIR.

Similarly, it was alleged that M/s IHC Merwede had sent an e-mail to the petitioner on 30.08.2011 and it would indicate the unholy nexus between the petitioner and that company.

However, the e-mail was sent to the email address of the Directorate of Ports and not to the petitioner's personal e-mail address. Moreover, this e-mail was sent long before the initiation of tender proceedings. 

"True, the F.I.R is not an encyclopaedia. It may not contain all facts and allegations. However, in this case, as already noticed, the F.I.R was registered against the petitioner after a detailed preliminary enquiry. Therefore, the F.I.R should have at least contained the necessary allegations or facts."

• Other Observations:

1) It is alleged that the petitioner proposed a tender for purchase of cutter suction dredger for the Ports Department without the approval of the Technical Committee. However, it is not explained what was the need for obtaining the approval of the Technical Committee for floating the tender. 

2) The prosecution has accused the petitioner of having concealed from the Government the fact that the tender is a global tender. However, the Court noted that a letter sent by the petitioner to the Government mentions that the tender invited was Global e-tender. 

3) It was further argued that the petitioner failed to publish the tender notice in Indian Trade Journal as stipulated in paragraph 15(c) of the Old Stores Purchase Manual. However, upon perusing the said provision, the Court noted that the clause only suggested that in addition to to the publication in the Government Gazette, the tender notice may be published in the Indian Trade Journal, which means it is not mandatory.

4) The allegation that the dredger was purchased without revised administrative sanction from the Government is not only baseless but false since the Government itself had accorded revised administrative sanction for procurement of the dredger at an estimated cost of twenty crores rupees. 

The discussion above led to the conclusion that the allegations in the FIR do not constitute the ingredients of the offences alleged against the petitioner. Therefore, necessary conditions have been satisfied to quash the F.I.R against the petitioner.

It was clarified that if the third party has any grievance that the petitioner has committed any cognizable offence based on allegations other than mentioned in the F.I.R, he can take appropriate steps under the Code before the competent court having jurisdiction for redressing his grievances in that regard.

Advocate C. Unnikrishnan argued for the petitioner, while Additional Director General of Prosecution Gracious Kuriakose appeared for the respondents.

Case Title: Dr Jacob Thomas IPS v. State of Kerala & Ors.

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