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2025 DIGILAW 2451 (KER)

Aby. K. Xavier, S/o. Xavier v. State Of Kerala

2025-09-12

A.BADHARUDEEN

body2025
ORDER : A. BADHARUDEEN, J. The 2nd accused in C.C. No.4 of 2021 on the files of the Enquiry Commissioner and Special Judge (Vigilance), Thiruvananthapuram arising out of V.C. No. 6 of 2017/SRT of the Vigilance and Anti-Corruption Bureau (for short, ‘VACB' hereafter) has filed this Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure (for short, ‘CrPC’ hereafter) and the prayer herein is to quash the entire proceedings as against him in the above case. 2. Heard the learned counsel for the petitioner/2nd accused and the learned Special Public Prosecutor appearing for VACB in detail. Gone through the documents placed by the learned counsel for the petitioner as well as the statements of witnesses and documents placed by the learned Special Public Prosecutor. 3. I shall refer the parties in this petition as ‘prosecution’ and ‘accused’ hereafter. 4. In this matter the prosecution alleges commission of offences punishable under Section s 120B , 468 and 479 of the Indian Penal Code (for short, IPC’ hereafter) as well as under Section 13 (1)(d) r/w 13(2) of the the Prevention of Corruption Act 1988 (for short, ‘the PC Act 1988’ hereafter) by the accused persons. 5. The prosecution allegation is that accused No.2 the Section clerk of A3 Section Pareeksha Bhavan, Thiruvananthapuram and accused No.3 one Mr.Sivankutty senior clerk H-6 Section Pareeksha Bhavan, Thiruvananthapuram hatched conspiracy along with accused No.1 Sri.Rajan, who applied for KGTE Shorthand (lower) examination 2015 and thereby manipulating the records in a format supplied by the 2nd accused without a column to show the actual mark regarding paper –I, scrutinised the same through one Smt.Anitha the Confidential Assistant Pareeksh Bhavan, Thiruvananthapuram without any order from the Secretary of Pareeksha Bhavan or from the Superintendent of A Section. In consequence thereof, the actual mark obtained in the first Paper by the 1st accused Rajan is shown as 27 1/2 instead of ‘zero’ marks he actually obtained. In consequence thereof, the actual mark obtained in the first Paper by the 1st accused Rajan is shown as 27 1/2 instead of ‘zero’ marks he actually obtained. Because of this, when Rajan applied for the details of the marks under the Right to Information Act, Annexure–D communication was issued showing that Rajan secured 27 1/2 marks out of 50 in Paper-I and Paper-II even though he actually secured ‘zero’ mark in Paper-I. The further allegation is that thereafter the 3rd accused issued certificate of pass and by using the same, Rajan, who was working as Motor Cyclist orderly in the Government Secretariat got promotion to the post of Confidential Assistant Grade-II and consequential salary thereof. On getting complaint in this regard when the vigilance investigated the matter, it was found that actually Rajan did not pass Paper-I and he obtained only ‘zero’ mark for Paper-I. 6. While submitting that the petitioner is innocent, it is pointed out by the the learned counsel for the petitioner that mere omission to include a column in Annexure–C showing actual mark obtained in Paper–I, placed before the scrutiny officer, the prosecution alleges that the petitioner committed serious offences on the premise that he had hatched conspiracy with the 1st and 3rd accused so as to get undue pecuniary advantage to the 1st accused by way of illegal promotion. It is pointed out by the learned counsel for the petitioner further that even though there is omission to provide a column showing the actual mark of Paper-I, the remarks column pertaining to the 1st accused and all other nine persons as per Annexure -C, no change was recorded and that would show that the earlier mark obtained by Rajan was the mark confirmed after scrutiny (revaluation) also. According to the learned counsel for the petitioner, on noticing this mistake as per letter dated 04.07.2015 Rajan was informed of the mistake and as per Annexure–A5 order of the examination commissioner, the mark list and the certificate of pass obtained by Rajan were cancelled and in this regard Annexure–G report also was given by the superintendent of A Section. According to the learned counsel for the petitioner, on noticing this mistake as per letter dated 04.07.2015 Rajan was informed of the mistake and as per Annexure–A5 order of the examination commissioner, the mark list and the certificate of pass obtained by Rajan were cancelled and in this regard Annexure–G report also was given by the superintendent of A Section. It is pointed out by the learned counsel for the petitioner that mere omission or dereliction of duty on the part of a public servant would not attract offence under Section 13 (d) of the PC Act, 1988 since the criminal misconduct dealt under Section 13 (1)(d) of the PC Act, 1988 is to be proved by sufficient evidence. The learned counsel for the petitioner placed the decision of this Court reported in 2024 (2) KHC 134 Surendranath C v. State of Kerala with reference to paragraphs 12 to 25. The relevant paragraphs, viz 12, 16, 17 and 25 read as under:- “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 any valuable thing or pecuniary advantage. The intention of the legislation is not to punish a public servant for erroneous decisions, but to punish for corruption. To fall within the four corners of sub-clause (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. 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. 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.” 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.” 7. Another decision of this Court reported in 2023 (2) KHC 526 Jose P.T. v. State of Kerala also has been placed to substantiate the same point. It is submitted by the learned counsel for the petitioner that no materials have been collected by the prosecution during the investigation to establish any meeting of minds between the 1st and 2nd accused as well as the 3rd accused. Furthermore, no materials have been collected to show that the petitioner had deliberately done anything so as to attract the offence under Section 13 (1)(d) of the PC Act, 1988. 8. The learned counsel for the petitioner vehemently submitted further that even though the overt acts of the petitioner would attract disciplinary action, the same by itself is quite insufficient to fasten criminal culpability upon him under section 13(1)(d) of the PC Act, 1988. 8. The learned counsel for the petitioner vehemently submitted further that even though the overt acts of the petitioner would attract disciplinary action, the same by itself is quite insufficient to fasten criminal culpability upon him under section 13(1)(d) of the PC Act, 1988. 9. Whereas it is submitted by the learned Special Public Prosecutor after referring the witness statements that the prosecution case as to hatching of conspiracy between the accused and resultant omission in Annexure–‘C’ as well as issuance of communication to the 1st accused on the premise of getting 27 1/2 marks for Paper-I and Paper-II could be gathered prima facie. It is submitted further that even though subsequently this was noticed and the same was informed to the 1st accused, prior to that the 1st accused had obtained marklist showing that he had obtained 27 1/2 mark each to Paper-I and Paper-II and also obtained pass certificate and, in turn he obtained the post of Confidential Assistant Grade-II in Government Secretariat. That apart, he obtained illegal money on the strength of the said promotion. The learned Special Public Prosecutor would submit that witness No.23 in this case is Anitha, who scrutinized (revalued) the marks and according to her there was no order by the Secretary Pareeksha Bhavan or the superintendent of the section to scrutinize the same. The learned Public Prosecutor has given relevance to the statement of witness No.15 and other witnesses to show that the 2nd accused deliberately omitted the column actual mark in Annexure–D with a view to help the 1st accused, as part of conspiracy and therefore the quashment of the case at the instance of the petitioner is liable to fail, as the matter would require trial. 10. On scrutiny of the prosecution materials, it is discernible that the scrutiny (revaluation) of PaperI and Paper-II were done by witness No.23 without an order by the Secretary Pareeksha Bhavan or any other higher officials empowered in this behalf. As far as proforma used for the revaluation or scrutiny of the Papers is concerned, there must be a specified proforma showing the details of the marks obtained earlier and the marks obtained on revaluation. In the instant case the prosecution records would show that Annexure ‘C’ proforma was manipulated by omitting a column showing the marks obtained earlier for Paper-I in a case where the 1st accused secured only ‘zero’ mark earlier. In the instant case the prosecution records would show that Annexure ‘C’ proforma was manipulated by omitting a column showing the marks obtained earlier for Paper-I in a case where the 1st accused secured only ‘zero’ mark earlier. In view of this serious omission, one could read that the 1st accused obtained 27 1/2 marks each for Paper-I and Paper-II. In addition to that by enjoying this omission the 1st accused obtained information under the Right to Information Act and accordingly he was informed that he had passed Paper-I and secured 27 1/2 marks for Paper-I. On the said basis he got promotion to the post of Confidential Assistant in Government Secretariat and derived illegal pecuniary benefit by way of salary. 11. In this matter during the course of investigation 26 witnesses were examined and 24 documents were seized by the Investigating Officer. The prosecution records would reveal that the petitioner herein being the Section Clerk of A3 Section who handled the recounting of examination Papers prepared a proforma for recounting of marks without due sanction and approval from any authority concerned and it is at his volition Smt. Anitha was entrusted to revalue the Paper, after providing a format omitting the marks obtained for Paper-I. During investigation, Smt.Anitha was deleted from the array of accused on finding that she had no role in this occurrence. 12. On evaluation of the prosecution records it could be gathered that the petitioner along with his colleague Mr.Sivankutti (A3) as part of conspiracy hatched in between A1 to A3 facilitated illegal promotion of the 1st accused as confidential assistant and thereby the 1st accused obtained pecuniary benefit thereon. Even though it is argued by the learned counsel for the petitioner that the petitioner is innocent and he merely failed to show a column for providing the marks obtained for Paper-I in Annexure - ‘C’ could not be prosecuted for the offence under Section 13 (1)(d) r/w 13(2) of the PC Act, 1988 and under Sections 120B , 468 and 479 of the IPC, this contention could not be found and the matter would require trial by framing charge. Therefore quashment sought for herein by the petitioner is liable to fail and is accordingly dismissed. 13. The interim stay in operation stands vacated. 14. Therefore quashment sought for herein by the petitioner is liable to fail and is accordingly dismissed. 13. The interim stay in operation stands vacated. 14. It is specifically ordered that the observations made in this order are only for the purpose of considering the challenge against the quashment. These observations shall have no binding effect during the trial, and the Special Court shall decide the case on its merits after adducing evidence. The Registry is directed to forward a copy of this order to the special court forthwith for information and compliance.