1. The 3rd accused in C.C. No.10/2015 on the files of the Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram, has filed this criminal revision petition under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the order in Crl.M.P. No.1394/2023 dated 12.11.2024, whereby the plea of discharge raised by the 3rd accused was negatived by the Special Court. The State of Kerala and the Superintendent of Police, Vigilance and Anti Corruption Bureau, Special Cell, Ernakulam, represented by the learned Public Prosecutor are the respondents herein.

2. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor, in detail. Perused the order under challenge as well as the relevant materials available.

3. In this matter, the prosecution case is that, A1 and A3 were the Chairman of Kerala State Electricity Board (hereinafter referred as ‘KSEB’ for short) at the relevant time. A2, A7 and A8 were members of the Board of Directors and A4 and A9 were the employees of the KSEB. A5 was the Minister for Electricity in the State Cabinet at the relevant time. A6 was the General Manager, M/s. ATV Projects India Ltd, which was an Indian collaborator of M/s. S.E.M.T Pielstick, a French company, arrayed as A12 herein. A10 was the Chairman and A11 was the Manager of A12 company. The specific allegation is that A1 to A5 and A7 to A9, while holding different posts in KSEB as public servants at different times since 1991, with dishonest and fraudulent planning for securing a purchase contract in favour of A10 to A12, for purchase of five Diesel Power Generator sets, auxiliaries and other accessories for the proposed Brahmapuram Diesel Power Plant (for short BDPP) in Brahmapuram, which is a project of KSEB. The further allegation is that the above accused persons intentionally omitted to invite global tenders or limited global tenders or tenders by adopting corrupt and illegal means and without any public interest, they intentionally committed to perform public duty by abusing their official positions and secured the contract in favour of A10 to A12 by purchasing Diesel Power Generator and accessories at an escalated price causing a loss of Rs.2.538 Crore to KSEB and corresponding unlawful gain to A10 to A12. On this premise, the accused alleged to have committed offences punishable under Sections 13(1) (c) and 13(1)(d) read with Section 13(2) of the the Prevention of Corruption Act, 1988 (hereinafter referred as ‘PC Act, 1988’ for short) as well as under Sections 109, 409, and 420 read with Section 120 B of the Indian Penal Code (hereinafter referred as ‘IPC’ for short).

4. While challenging the order negativing the plea of discharge at the instance of the revision petitioner/3rd accused, the learned counsel for the revision petitioner argued two specific points to interfere in the order impugned. The first point argued is that, no prosecution is possible as against the revision petitioner without obtaining sanction under Section 197 of the Code of Criminal Procedure [hereinafter referred as ‘Cr.P.C.’ for short]. The second point argued is that, merely because the revision petitioner being the Chairman of the KSEB, alleged to have recommended a project to the “Government” instead of “Council of Ministers”, he could not be prosecuted, since the action was approved by the 5th accused, who was the then Minister of KSEB and subsequently by the Council of Ministers though by circulation. The learned counsel for the revision petitioner has placed Rules of Business and the relevant paragraphs to substantiate that the Rules of Business would permit circulation among Ministers for proposal of a project. According to the learned counsel for the revision petitioner, in the instant case, even though as per the decision in Padmarajan C.V. v. Government of Kerala and Others reported in [2009 (1) KHC 65 : ILR 2009 (1) Ker.36], this Court relegated the question of sanction under Section 197 of Cr.P.C. to be decided by the Special Court, the Court never held that this is a case in which sanction was not at all required. The learned counsel for the revision petitioner placed statements of Smt.M.Viswamany, w/o Sri.Gopalakrishnan as well as Sri.Arunkumar to substantiate the contentions and to succeed the plea of discharge after upsetting the order impugned.

5. Whereas it is submitted by the learned Public Prosecutor that, as far as question of sanction under Section 197 of Cr.P.C. is concerned, the same cannot be considered in this case, since the same is covered by the decision in Padmarajan C.V.’s case (supra). Therefore, the challenge against the impugned order on the said basis is liable to fail. According to the learned Public Prosecutor, purchase of Diesel Power Generator was decided as per G.O.RT.No.186/91/PD dated 20.12.1991 by exceeding the terms of the Government Order, whereby the Government recommended the team to visit Montreal for evaluating the tender documents for the Power System Improvement Project of Canadian International Development Agency. By exceeding the powers of the Government Order, the officials entered into memorandum of understanding and thereafter all the accused conspired together and gave tender to M/s. S.E.M.T. Pielstick of France for the purchase of Diesel Power Generator, without going for open tenders to get the same for a lesser rate, though those items could be procured for a very lesser rate and thereby huge loss sustained to the Government. It is submitted that, when the letter written by the 3rd accused is verified, as stated by Sri.K.Ramachandra Kurup, as part of conspiracy hatched between the accused, the 3rd accused replaced the word “Government” after erasing the word “Council of Ministers” with a view to get the project assigned in favour of M/s.S.E.M.T. Pielstick and thereby he has direct involvement in this case. The learned Public Prosecutor also pointed out paragraph No.9 of the decision in Padmarajan C.V.’s case (supra) with reference to the relevant dates in the historical background. The same are extracted as under:

                  19-1-1992 Another MOU similar to the one signed for the Kasaragod Project on 12-4-1991 was signed by the Chairman, K.S.E.B. with A13 at Paris.

                  2-12-1993 The 2nd MOU was placed for approval before the Government. It was approved by A5 the Power Minister. The approval by the Minister was necessary since the K.S.E.B. was availing funds on credit from the French Government for purchase of the Diesel Power Units on Central Government guarantee.

                  3-12-1993 A G.O. was issued.

                  16-12-1993 Agreement was executed

                  24-7-1995 Sri. V.S. Achuthanandan who was the then opposition leader raised allegations against the U,.D.F. Government in general and A5 in particular attributing corruption in the decision to purchase diesel power units.

6. Insofar as the question of sanction required under Section 197 of Cr.P.C. is concerned, this Court cannot address the same, since the same attained finality in view of the decision of this Court in Padmarajan C.V.’s case (supra), where the stand taken by the 3rd accused/ the revision petitioner was considered by this Court in paragraph No.5. The same is extracted as under:

                  “5. STAND OF A3 (FORMER CHAIRMAN OF K.S.E.B)

                  Adv. Sri.P.S. Biju, the learned counsel appearing for the 3rd accused (R. Sivadasan) made the following submissions before me in support of W.P.C. 13804 of 2008 in which he is the 7th respondent:

                  The 3rd accused is a member of the Indian Railway Account Service (IRAS). It was 11 years after the 3rd accused left the K.S.E.B. as its Chairman that he is being prosecuted. The contract with the French Company S.E.M.T. PIELSTICK was signed during January 1992 at a time when the first accused in the case was the Chairman of the KSEB. The 3rd accused came as a Chairman long thereafter and except for the fact that the conditionalities in the contract already signed got their approval during the tenure of the 3rd accused, he had absolutely no role to play in the alleged commission of the offences. Apart from the fact that the police charge is vague and incomplete for want of details regarding the place, date and time of occurrence as mandated by Sec. 212 of Cr.P.C. the State Government is prosecuting officials for the project fixed and approved by the Government of India and the Central Electricity Authority for which the President of India has stood guarantee. There is a specific clause in the guarantee by the Government of India that the guarantee will be governed by the French Law. The allegations in Ext.P1 charge are in relation to a project in which the Government of Kerala and the French Government are parties. French Nationals are also accused under Ext.P1 charge- sheet. Therefore the case cannot be tried without the prior approval of the Government of India. This respondent supports the Writ Petition filed by the 5th accused also besides raising these additional grounds.”

7. Thereafter, in paragraph No.23, this Court concluded as under:

                  “23. CONCLUSION

                  In the result, these Writ Petitions are allowed in part as follows:-

                  1) The prayer for quashing the police report (charge sheet) and further proceedings on the ground that the offences are not made out against the petitioners, is disallowed since it is too early to accept the grounds put forward in support of the same.

                  2) The prayer for quashing the police report on the ground of delay in investigation is also disallowed.

                  3. The question of prosecution sanction under Sec. 197 Cr.P.C. is relegated to the stage of trial as indicated herein before. Both sides are at liberty to raise all other contentions before the trial court during the trial of the case. This is without prejudice to the right of the accused persons to plead for a discharge.

                  4. The cognizance taken of the offences mentioned in Ext.P1 police report and the issuance of summons to accused Nos. 1 to 10 under Section 204 Cr.P.C. being part of the “inquiry” without obtaining the previous sanction of the Central Government under the proviso to Section 188 Cr.P.C., are bad and are accordingly quashed.

                  5. The Court of the Enquiry Commissioner and Special Judge, Thiruvananthapuram alone has jurisdiction to take cognizance of and try the offences. The Vigilance Court, Thrissur had no jurisdiction to take cognizance of the offences or issue process to the accused. The Vigilance Court, Thrissur shall return the police report and connected records for presentation before the proper Court after complying with the legal formalities.”

8. Therefore, the necessity of sanction under Section 197 of Cr.P.C. argued by the learned counsel for the revision petitioner is concerned, the same shall be subject to the decision in Padmarajan C.V.’s case (supra) and this Court is not inclined to go beyond that, since the said decision attained finality without any challenge, wherein the revision petitioner was also a party.

9. Coming to the other contentions, while addressing the contentions raised by the revision petitioner before the Special Court, the Special Court considered the same in paragraph No.5 of the impugned order and dismissed the discharge petition for the reasons stated in paragraph Nos.40 to 44. Paragraph Nos.40 to 44 are extracted as under:

                  “40. It is seen from the records that several companies have offered more beneficial price than the price offered by S.E.M.T Pielstick. Still S.E.M.T Pielstick was selected for supplying the equipments for higher price. Three reasons are seen recorded for opting this company without tender. First one is that, A12 was selected for Yelahanka Project by way of global tender and thus by avoiding such tender time can be saved. Second is that company will provide equipments for the same price as existed in 1986-1987, (price fixed for Yelahanka Project) in 1992 for Brahmapuram Diesel Power Plant and thereby there is financial benefit for KSEB. The third one is that, by using Indo-French Protocol, soft loan can be obtained for a low rate of interest. This is the note put up by A3 on 11.08.1993 justifying the MOU. He had also prepared an agenda on 29.04.1993 to the effect that equipments can be purchased from A12 company by avoiding tender procedure and by obtaining soft loan and the rate of equipments will be of 1986-1987 period. In pursuance to this, a letter dated 31.12.1993 was written by the Chairman-in-charge addressing the Power Secretary, Mr. Arun Kumar. In the note dated 24.09.1993, A4 had written that as this involves a policy decision of the State Government the matter may have to be decided by the Council of Ministers. However, when the Chairman in charge A3 addressed the Power Secretary, the words 'Council of Ministers' were changed as 'Government'. It is on the basis of this, A5 took unilateral decision in favour of A12.

                  41. It is seen from the records that the Chairman in charge, Sri. R. Sivadasan (A3) had written a letter to the Power Department on 25.09.1993 for which a clarification was sought from the said office on 05.11.1993 and 12.11.1993. Sri. R. Sivadasan as per letter dated 22.11.1993 has referred to only one company i.e. M/s Wartsila Diesel, which had quoted a price higher than the price quoted by A12 in the MOU dated 19.01.1992. Other companies which have quoted a lesser price have been purposefully not mentioned in this letter. Prima facie this appears to be an attempt to mislead the concerned authorities, with a design to favour A12.

                  42. To the letter of Power Secretary dated 12.09.1993, A3 has again seems to have given an incorrect reply for favouring A12. There also the companies which have offered lower price as per their trade enquiry have not been referred to at all. Even the rate quoted by A12 has been incorrectly shown in his report.

                  43. As per the minutes dated 13.10.1993 of KSEB meeting, it is seen that A3 has explained in the meeting that the same price, terms and conditions of Yelahanka Project will be applicable in the case of Brahmapuram Diesel Power Plant. This led to the approval of the decision for the purchase of equipments from A12 company whereas the price was higher than the Yelahanka Project. In the minutes of the said Board Meeting certain incorrect assertions are seen made to the effect that the MOU was signed at the instance of the Government whereas no such Government order could be found and no authority also found given to A1 for signing such MOU.

                  44. As per the minutes of the Board Meeting held on 13.10.1993 it is recorded that the MOU executed by A1 was at the instance of the Government. As already mentioned by me, no such Government order is seen authorizing A1 to sign the MOU even on behalf of KSEB. The Government order is only for visiting the plant and office of A12 in France. Statement of the then Secretary of the KSEB, Mr. Ramachandra Kurup shows that this particular sentence that the MOU was at the instance of the Government was included by A3 who was the Chairman-in-charge at that time. I have already referred to similar changes made by A1 in the draft note for the meeting of the Board. This will indicate the joining of mind between A1 and A3 to incorporate incorrect facts in the note as well as in the minutes.”

10. Coming to the allegations against the revision petitioner, it could be seen that, accused Nos.1 to 5 and accused Nos. 7 to 9 caused wrongful loss of Rs.2.538 Crore to the KSEB and facilitated corresponding undue pecuniary advantage to accused Nos.10 to 12 and all the accused persons involved in this case and thereby they committed the offences alleged by the prosecution.

11. The specific allegation against the revision petitioner is that, A3 and A7 created note on 03.12.1993 which resulted in issuance of Board Order on 03.12.1993 on the basis of which A4 issued the letter of indent on 03.12.1993 placing orders for supply of DG sets and accessories. It was followed by signing of a contract with A12 on 16.12.1993. As per the agreement dated 16.12.1993 transportation charges and insurance were fixed as 88,88,000/- FRF and an ocean freight as 4,700,000/- FRF. Price in MOU dated 19.01.1992 was in C.I.F but in the agreement dated 16.12.1993 it was in F.O.B. So, A4, A9, A6 and A11 illegally abetted to obtain undue pecuniary advantage of 4,700,000/- (i.e. Rs.2.538 Crore) by shifting the price structure from C.I.F to F.O.B with the knowledge that this would benefit A10 to A12 and others. A9 who was duty bound to advice and clarify on financial matters, intentionally omitted to give such advice which resulted in loss to KSEB.

12. It is the well settled law that, in order to discharge an accused, who has involvement in a crime, the Court concerned shall look into the prosecution records alone and the Court cannot go beyond the prosecution records. Then, the duty of the Court is to evaluate the prosecution records with a view to find out whether offence/offences alleged is/are made out, prima facie or atleast a strong suspicion to go for trial.

13. In the instant case, as stated in the additional statement given by Sri.Ramachandra Kurup, it could be seen that, as per the note put in by C.J.B, Netto on 24.09.1993, it has been stated that, “As it involves a policy decision of the State Government, the matter may have to be decided by the Council of Ministers”. But, the 3rd accused/revision petitioner written a DO letter to the Power Secretary, wherein he had erased the words “Council of Ministers” and replaced the word “Government”. The 5th accused, who was the then Minister, now no more, gave sanction to the project. Thus, giving tender to M/s. S.E.M.T. Pielstick for purchase of Diesel Power Generator, without following the procedure of calling global tenders or any other tenders to ensure that other companies would be available for providing the same items for a lesser sum, a unilateral methodology was adopted by specifying only one company i.e. M/s. S.E.M.T. Pielstick and in such a way correspondence were made by the accused persons, including the 3rd accused.

14. Even though, it is argued by the learned counsel for the revision petitioner that, when the Secretary writes a letter to the Council of Ministers, the same could be addressed to the Government and therefore, the allegation that the revision petitioner erased the word “Council of Ministers” and replaced the word “Government’ that by itself is insufficient to fasten criminal culpability upon him, it is discernible that, if the revision petitioner/3rd accused did not erase the word “Council of Ministers” by inserting the word “Government”, the entire file should have been placed before the Cabinet for a detailed discussion and if so, the absence of global tender would have been noticed and the proposal should have been dropped to avoid huge loss to the State Exchequer. Although a subsequent clarification through the Council of Ministers by circulation was obtained without any discussion, the ratification of an illegal procedure by the Council of Ministers is nothing but the continuation of the illegality.

15. Seeing the genesis of the case and the complicity of the revision petitioner in this case, the contentions raised by the revision petitioner that, the revision petitioner is absolutely innocent and he had done his duties, in accordance with law, could not be countenanced at this stage. In fact, the role of the revision petitioner could be seen, prima facie, from the prosecution records or atleast a strong suspicion against him is made out, necessitating trial. In such a case, this Court could not find any illegality or irregularity in the finding of the Special Court while disallowing discharge plea of the revision petitioner. Therefore, the challenge against the impugned order by way of revision petition is found to be unsustainable and as such, the order impugned does not require any interference.

16. In the result, this criminal revision petition fails and is accordingly dismissed, with liberty to the Special Court to proceed with trial of the matter, without fail. Since this is an oldest case, the Special Court is directed to expedite the trial and finish the same, within a period of six months from the date of receipt of copy of this order.

                  Registry is directed to forward a copy of this order to the Special Court, forthwith, for information and further steps.