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 DisprovedThe 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 DecisionIt 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...

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

Hannah M Varghese

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