The court established that a prima facie case of conspiracy and financial misconduct exists, precluding discharge of the accused under Section 239 Cr.P.C.

ORDER :

1. The petitioners, the accused in C.C No.17/2017 on the file of the Court of the Enquiry Commissioner and Special Judge, Thalassery, challenge the dismissal of their application seeking discharge under Section 239 Cr.P.C. The petitioner in Crl.R.P No.65/2022 is accused No.1. The petitioner in Crl.R.P No.691/2021 is accused No.3. They face charges under Sections 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 and Section 120-B of the Indian Penal Code.

2. The prosecution case is that the petitioners and the other accused hatched a criminal conspiracy in the matter of granting the permit for the disposal of dredged materials from Azheekkal Port, Kannur, by adopting different criteria for different dredgers in fixing the quantity of the dredged materials and thereby caused pecuniary loss to the tune of Rs.3,20,000/- to the public exchequer.

3. The Vigilance and Anti-Corruption Bureau, Kannur Unit, investigated the allegations and submitted the final report against the petitioners and others before the Trial Court. The Court took cognizance of the offences. The petitioners and the other accused appeared on summons. They filed applications as CMP Nos.1101/2018, 393/2019 and 394/2019 seeking discharge under Section 239 Cr.P.C. The learned Trial Judge dismissed the applications holding that no ground was found to discharge the accused.

4. Heard the learned counsel for the revision petitioners and the learned Special Government Pleader (Vigilance).

Submissions

Petitioner in Crl.R.P No.65/2022

5. The investigation of the offences, the final report and the subsequent proceedings are invalid in the eye of the law as a major part of the investigation was conducted by a Police Officer, who is not empowered to investigate the offences under Section 17 of the Prevention of Corruption Act, 1988.

5.1. The allegation that a dummy meeting was convened with the intent to award a contract in favour of accused No.3 is baseless, as the meeting convened was official in character.

5.2. The petitioner served as the Port Officer only for 14 months.

Petitioner in Crl.R.P No.691/2021

6. No material shows that the alleged act amounted to loss to the public exchequer.

6.1. As no guidelines have been published by the Government as provided in Section 68 of the Indian Ports Act, 1908, the assessment of loss has no foundation.

Competence of the Investigating Officer

7. The major part of the investigation was done by the Inspector of Police, VACB, Kannur. Sri.Srinath Girish, the learned counsel for the petitioner in Crl.R.P No.65/2022, submitted that the Inspector of Police is incompetent to conduct the investigation. The learned counsel submitted that as per Section 17 of the Prevention of Corruption Act, the Deputy Superintendent of Police or a Police Officer of equivalent rank shall investigate any offence punishable under the Prevention of Corruption Act. The learned counsel relied on State (Inspector of Police) v. Surya Sankaram Karri, (2006) 7 SCC 172 to substantiate his contentions.

8. Sri. A.Rajesh, the learned Special Government Pleader submitted that as per proviso to Section 17 of the Prevention of Corruption Act, the State Government may authorise an officer not below the rank of an Inspector of Police to conduct investigation into the offences alleged and such authorisation was effected by the Government as per Notification No.12094/C1/88/Vig dated 02.03.1993.

9. Section 17 of the Prevention of Corruption Act, 1988 reads thus:

“Section 17 - Persons authorised to investigate.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no police officer below the rank,-

(a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;

(b) in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under sub-section (1) of section 8 of the Code of Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;

(c