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2025 DIGILAW 2391 (KER)

M. A. Rasvi S/o Abdul Jabbar v. State of Kerala

2025-09-09

A.BADHARUDEEN

body2025
ORDER : 1. Crl.Rev.Pet. No.1081/2024 has been filed under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 , by accused Nos.1 and 2 in C.C. No.20/2016 on the files of the Court of the Enquiry Commissioner and Special Judge, Kottayam, challenging the common order dated 27.06.2024 in Crl.M.P. No.388/2020 in the above case, whereby the discharge plea at the instance of accused Nos.1 and 2 was dismissed by the learned Special Judge. 2. The 3 rd accused, who is aggrieved by dismissal of his discharge petition vide order dated 27.06.2025 in Crl.M.P. No.90/2021 in the above case has filed Crl.Rev.Pet. No.974/2024, challenging the said order. 3. Heard the respective counsel for the revision petitioners as well as the learned Public Prosecutor, in detail. Perused the order impugned, relevant records as well as the decision placed. 4. Parties in these criminal revision petitions shall be referred as ‘accused Nos.1, 2 and 3’ and ‘prosecution’ hereafter. 5. In this matter, the prosecution case is that, the 1 st accused, while working as Assistant Engineer attached to Kanjirappally Grama Panchayat and the 2 nd accused, who was Executive Engineer of the Kanjirappally Block Panchayath, and as such public servants criminally conspired with the 3 rd accused, who was the contractor, for the construction of a pavilion at Petta Government High School, Kanjirappally and accused Nos.1 and 2 with dishonest and fraudulent intention of making undue pecuniary advantage did not construct the said pavilion according to the specification in the plan and estimate and constructed foundation pillars by using lesser number of iron bars in the pillars than what is required and thereafter fraudulently and dishonestly recorded incorrect measurements in the M-Book to make it appear that the work was carried on in accordance with the specification and prepared the bill and sanctioned payment causing loss of Rs.42,703/-. Due to the deficient and unscientific construction, the anchorage of the foundation of the pavilion sustained defects as a result of which the structure collapsed on 15.06.2014, thereby causing loss of Rs.10,34,583/-. It is alleged that accused conjointly with ulterior intention of obtaining pecuniary gain conspired together and fraudulently and dishonestly misappropriated the Government fund for the construction work. Thereby, they derived undue pecuniary advantage for themselves during the period from 11-3-2012 to 15-6-2014 and committed criminal misappropriation, cheating, falsification of accounts, criminal conspiracy and criminal misconduct. It is alleged that accused conjointly with ulterior intention of obtaining pecuniary gain conspired together and fraudulently and dishonestly misappropriated the Government fund for the construction work. Thereby, they derived undue pecuniary advantage for themselves during the period from 11-3-2012 to 15-6-2014 and committed criminal misappropriation, cheating, falsification of accounts, criminal conspiracy and criminal misconduct. On this premise, the prosecution alleges commission of offences punishable under Sections 13 (1)(c) and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred as ‘P.C. Act’, for short] as well as under Sections 409 , 465, 468, 471 and 120B of Indian Penal Code . 6. While seeking discharge by setting aside the common order impugned, it is submitted by the learned counsel for accused Nos.1 and 2 that, as per the statements given by CWs 4, 5, 7 and 8, the reason for collapse of the pavilion, which was constructed during 2013, was stated as ‘cyclonic wind’. It is also pointed out by the learned counsel for accused Nos.1 and 2 that, CW14, who initially inspected the site, filed Ext.F report, supporting the case of the accused and reported that, collapse of the pavilion was due to strong cyclonic wind. The learned counsel pointed out further that, even though as per the M-book, 448 kilogram of iron bars were meant for constructing the pavilion, in page No.16 of Ext.B, the claim towards iron bars was limited to 160 kilogram and payment for the said amount was effected. Therefore, there is no pecuniary loss occurred to the Government in this matter. It is also pointed out that, mere dereliction of duty or supervisory laches at the instance of a public servant by itself would not attract none of the P.C. Act offences. In this regard, the learned counsel for accused Nos.1 and 2 placed decision of this Court in George Sebastian v. Anoop George and Others, 2013 (4) KHC 89 : 2013 (2) KLD 638 : ILR 2013 (4) Ker. 624 with reference to paragraph No.8. In paragraph No.8, this Court observed as under: 8. Even if the accused Nos.3 to 6 wrongly or erroneously granted permission to correct the date of birth, can an inference be drawn that the accused Nos.3 to 6 accepted bribe? Error is human. 624 with reference to paragraph No.8. In paragraph No.8, this Court observed as under: 8. Even if the accused Nos.3 to 6 wrongly or erroneously granted permission to correct the date of birth, can an inference be drawn that the accused Nos.3 to 6 accepted bribe? Error is human. So, a public servant also may commit wrongs or errors during the act of discharging his official duty for various reasons, though he is not expected to do so. The consequence thereof including disciplinary action and punishment depends upon the reasons and the culpability thereunder. A public servant may commit wrong by ignorance of law or rule or procedure. Some wrong or error may be committed by carelessness or negligence or dereliction of duty or misplaced sympathy or inability or incomprehensibility etc. Similarly, some act done in good faith with bona fide belief that it is right or righteous, may be found wrong subsequently. At the same time, some wrong may be committed with a dishonest intention to obtain for himself or for any other person any valuable thing or pecuniary advantage. I am of the opinion that the dishonest intention to obtain illegal advantages must be distinguishable from the other reasons or possibilities on the basis of the facts and circumstances alleged in the private complaint and such circumstances would clearly indicate the dishonest intention alone after ruling out all other reasons indicated above. So, merely on the reason that a public servant has committed a wrong and another person got an undue advantage, acceptance of bribe or obtaining of bribe or valuable thing or pecuniary advantage cannot be attributed mechanically on the public servant or such a presumption cannot be drawn automatically against all public servants invariably in all cases. 7. The learned counsel appearing for the 3 rd accused mainly argued that, as per the M-book as pointed out by the learned counsel for accused Nos.1 and 2, the amount granted to the 3 rd accused for the work done was after limiting the the same to the quantity of iron bars used, which would come to the tune of 160 kilogram, even though, in the estimate, the iron bars proposed for the work would come to 448 kilogram. In such a case, it could not be held that there was undue pecuniary advantage obtained by the 3 rd accused. In such a case, it could not be held that there was undue pecuniary advantage obtained by the 3 rd accused. The learned counsel for the 3 rd accused also read Ext.F report and also the statements of CWs 4 and 5, which would suggest that the collapse of the pavilion might be due to heavy cyclonic wind. According to the learned counsel for the 3 rd accused, since the prosecution records would not make prima facie case against the accused, the Special Court ought to have allowed the discharge petitions at the instance of the accused. Therefore, the common order would require interference and the 3 rd accused is liable to be discharged. 8. Per contra, the learned Public Prosecutor would submit that, the specific allegation of the prosecution is that, wrong measurement showing use of 448 kilogram of iron bars for constructing the pavilion was recorded in the M-book, without using the same for the work. Thereafter, the amount for carrying out the work was encashed. It is also pointed out that, CW14, the Assistant Executive Engineer, PWD, Building Sub Division, Kottayam, given additional statement in support of Ext.H report and according the learned Public Prosecutor, initially, he had given Ext.F report, supporting the fact that the collapse of the pavilion might be due to cyclonic storm. The learned Public Prosecutor read out the relevant portions of Ext.H report along with the statement of CW14, who authored the same, to contend that, in this matter, as part of conspiracy hatched in between the accused to obtain undue pecuniary advantage, the public work for constructing a pavilion was not properly carried out, though amount for the said work was encashed. In consequence thereof, the pavilion collapsed and Ext.H report along with the statement of CW14 and Ext.G report of the Chief Engineer, PWD, Design (DRIQ), Thiruvananthapuram, would establish the fact that, there was no proper construction of the pavilion as per the estimate and thereby, the same was collapsed and huge loss to the State Exchequer was caused and the accused persons gathered illegal gain. 9. 9. In fact, in George Sebastian ’s case (supra), this Court Court considered the challenge against the order of the Special Court allowing discharge petition at the instance of accused, who alleged to have committed offences punishable under Sections 13 (1)(d) read with 13(2) of the P.C. Act, where Section 28 of the Registration of Births and Deaths Act, 1969 , was applicable and this Court held that Section 28 of the Registration of Births and Deaths Act, 1969 , provides protection to the public servants for the act done in good faith, while in discharging powers under the Said Act. Thus, the ratio in George Sebastian ’s case (supra) could not be applied in this case. 10. In this matter, the crux of the argument mooted by the learned counsel for the accused is that, strong cyclonic wind is the reason for collapse of the pavilion and the same is supported by the statements of CWs 4, 5, 7 and 8. On reading the statements of CWs 4, 5, 7 and 8, they deposed that, there was cyclonic wind before the collapse of the pavilion and the same might be a reason for the collapse. As per the initial report filed by CW14 also, it was reported that strong cyclonic wind is the reason for collapse of the pavilion. But, subsequently, Ext.H report at the instance of CW14 also was obtained and the same read as under: As requested by the inspector of police, VACB, Kottayam unit I have conducted a site inspection of the above site on 9.2.2016 with the vigilance team. The findings of the detailed inspection of foundation of the collapsed structure based on the request of the inspector of police, VACB, Kottayam unit are given below. 1. Report on the failure of the structure by CE, DRIQ The Chief Engineer, DRIQ, has pointed out in his report that the failure of the structure may be due to in adequate anchorage provided to the column footing. In the earlier inspection no detailed excavation has been carried out to assess the foundation details of the structure and could not be assessed whether sufficient anchorage as per the recorded measurements have been actually provided. 2. In the earlier inspection no detailed excavation has been carried out to assess the foundation details of the structure and could not be assessed whether sufficient anchorage as per the recorded measurements have been actually provided. 2. Examination on exposed column pedestals Out of the total 8 column footings 5 nos of pedestals were available on the ground for visual examination as the same were got separated from its footing during collapse of the structure. There were a total of 8 columns in two rows with 4 in each row. From the visual examination of 3 nos of column pedestals on the right side row it is seen that the column pedestals are provided with only 4 nos of 16 mm diameter steel bars as reinforcement against the recorded measurement of 8 nos. As per the recorded measurements, the reinforcement extends into the column footings and anchored to the footing base properly. But the exposed column pedestal shows that no reinforcement has been provided to the column footing beyond pedestals. The other two pedestals on the second row show that the column pedestals are simply placed on the rocky ground without any footing or proper anchorage. The actual depth of pedestal provided against the stipulated depth of 1.0 m is only 45 cm. One of the pedestal rests directly on the rocky strata and the size of the pedestal is 60cm*60 cm*45 cm. The second one has been provided with a mere PCC base. No dowel bars or proper anchorage have been provided for these two column footings. 3. Detailed examination on footing To assess whether proper anchorage had been provided to the footing, excavation on one of the footings was done with a JCB. The footing with its base was dug out from the ground and the following observations made. The overall depth of the structure from the top of the column pedestal to the base of the footing is 160.0 cm. The split up of this depth is Depth of pedestal =100 cm Footing = 45 cm Footing base = 15 cm Total = 160 cm The actual depth of footing is 45 cm against the recorded measurement of 60 cm. The size of the footing base is also less and is only 100cm*100cm*15 cm against the recorded measurement of 140*140*15 cm. The size of the footing base is also less and is only 100cm*100cm*15 cm against the recorded measurement of 140*140*15 cm. On striking with the front hoe of the JCB, the footing base got separated from the footing, clearly showing that no reinforcement had been provided for anchoring the column pedestal and footing with the base. From this it can be assumed that reinforcements had only been provided, up to the pedestal bottom and this resulted in the failure of the foundation as the footing could not withstand the up lift pressure generated by an expected wind. 4. Variation in measurements On verifying the measurements at site with the recorded measurements, some variations are seen and the details are separately attached for reference. Details of reinforcement provided in the footing base could not be verified as it was not possible to break the same with the available tools at the time of inspection. Even though they have carried out PCC 1:4:8 as levelling course (Page no.2 of MB 14/12-13) as an extra item below the footing, the measurement of the same has not been considered for payment. 5. Conclusion From the inspection it is seen that required anchorage to the foundation, as recorded in the measurement book had not been actually provided at the site and this resulted in the failure of the foundation and subsequent failure of the entire structure. 11. It is true that, as pointed out by the learned counsel for the accused, the Chief Engineer filed Ext.G report as on 16.01.2016 and in paragraph Nos.3 and 4, the Chief Engineer reported as under: 3) As per the report by the Superintending Engineer for foundation failure may be due to insufficient size of foundation. It was also reported that there was no damages for roof truss, purlin, G.I. Sheet. It shows that the structural design for roof truss in safe. The complete structure was retained stable for more than half a year and it means that the structure was stable under normal weather condition. 4) It was also observed that all columns pedestals are not connected with plinth beams for attaining total rigidity of the structure. The columns were not found braced/tied and no end bracing were found provided for getting stability at high winds as per general practice. Due to unexpected wind the joint between column and pedestals has only been broken. 4) It was also observed that all columns pedestals are not connected with plinth beams for attaining total rigidity of the structure. The columns were not found braced/tied and no end bracing were found provided for getting stability at high winds as per general practice. Due to unexpected wind the joint between column and pedestals has only been broken. Thus column pedestals on the wind ward side were got separated from the footing. Hence the foundation footing is not safe against the uplift pressure generated by the unexpected wind. 12. In this matter, the point in issue is whether the construction of pavilion was carried out in deviation from the estimate for the same, without using the building materials in the proper proportion as per the estimate and the same resulted in the collapse of the pavilion or the collapse was due to cyclonic wind, as contended by the learned counsel for the accused? 13. Going by the reports of CW14 as well as the Chief Engineer as extracted herein above, the prosecution case as to collapse of the pavilion due to improper construction could be gathered, prima facie. Mere opinion of persons giving a probability that the collapse might be due to cyclonic wind would not suffice to disbelieve the reports of the experts holding otherwise. 14. In fact, the Special Court given much emphasize to the statements of CW14 as well as CW19 along with Ext.H report to hold that, in this matter, the prosecution allegations are made out, prima facie. CW19 conducted surprise inspection and according to him the structure was designed without considering the wind load. Further, it was also reported that, before starting construction, soil test was not conducted. Therefore, the allegation of the prosecution could be gathered, prima facie. The contentions raised by the learned counsel for the accused that, collapse of the pavilion was due to strong cyclonic wind is a matter to be decided by the Special Court, after trial, based on the evidence to be adduced and this Court could not decide the same at the pre-trial stage. On perusal of the common order impugned, the Special Court rightly disallowed the discharge petitions at the instance of accused Nos.1 to 3, after referring the relevant provisions and decisions on this point. Therefore, the said common order does not require interference. 15. Thus, these petitions are liable to fail. On perusal of the common order impugned, the Special Court rightly disallowed the discharge petitions at the instance of accused Nos.1 to 3, after referring the relevant provisions and decisions on this point. Therefore, the said common order does not require interference. 15. Thus, these petitions are liable to fail. Accordingly, these revision petitions stand dismissed. 16. It is specifically ordered that, the observations made in this order are for the purpose of considering challenge against the impugned orders and the same have no binding effect during the trial and the Special Court shall decide the case on merits, after adducing evidence. Registry is directed to forward a copy of this order to the Special Court, forthwith, for information and further steps.