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In passing the interim order, the court noted that proper procedure was not followed in the prosecution of the alleged offence
In passing the interim order, the court noted that proper procedure was not followed in the prosecution of the alleged offence
The Kerala High Court on Wednesday stayed for a month all further proceedings in the evidence tampering case pending against Minister for Transport Antony Raju before the Judicial First Class Magistrate Court, Nedumangad, in Thiruvananthapuram
Justice Ziyad Rahman A.A. passed the interim order while admitting a petition filed by the Minister seeking to quash the case.
Non-compliance with procedure
The court while passing the interim order observed that as per section 195 of the Criminal Procedure Code(CrPC), the prosecution in respect of the offence under section 193(fabrication of evidence) of the Indian Penal Code(IPC) and the conspiracy to commit the same could only be prosecuted on the basis of a complaint by the court concerned or the officer authorised by the court. It was seen that this procedure had not been complied with. The court, therefore, found that a prima facie case had been made out in favour of Mr. Raju.
When the petition came up for hearing, Senior Counsel P. Vijaya Bhanu for the Minister submitted that even though the petitioner had been charged with a major offence under section 193 of the IPC, the mandatory procedure required under sections 195 and 340 of the CrPC had not been complied with.
Also read: Kerala High Court calls for report on evidence tampering case against Transport Minister Antony Raju
Minister’s arguments
In his petition, Mr Raju pointed out that while acquitting the accused Australian national in the narcotic smuggling case, the High Court had suggested an inquiry in respect of the tampering of the evidence. The vigilance wing of the High Court had initially conducted an investigation and thereafter, the administrative side of the High Court directed the Thiruvananthapuram District Judge to ask the Sheristar of the district court to furnish the first information statement to the police. Consequently, an FIR was registered on October 5, 1994.
In fact, the magistrate court had taken cognizance of the case on a charge sheet by the police. However, the police had no authority to conduct an investigation in such cases. He argued that the magistrate court ought not to have taken cognizance of the offence under section 193(fabrication of evidence) of IPC unless a complaint was lodged by a court in writing or its authorised officer. Therefore, the procedure adopted by the lower court was patently illegal.
What is the case?
The prosecution case was that Mr. Raju in his earlier capacity as a lawyer of Andrew Salvatore Cervelli, the accused Australian national in a narcotic smuggling case, had aided Mr. Cervelli to tamper with the evidence and escape from the law. The police had filed a chargesheet against Mr. Raju and another accused in the case Solomon Joseph of Peroorkada in 2006.
Mr. Cervelli, an Australian national was arrested at the Thiruvananthapuram International airport on April 4, 1990, on the charge that he had concealed 61.5 gm of hashish in his underwear. The underwear was treated as one of the pieces of evidence. The Australian was sentenced to 10 years of rigorous imprisonment. However, he was acquitted by the High Court in 1993, after his counsel proved that the underwear was too small for him and could not have been worn by the accused at the time of his arrest. In the meantime, the then Investigating officer K.K. Jayamohan had filed a petition before the High Court stating that the underwear given as evidence had been tampered with when it was in the custody of the Court. The High Court had then ordered its Vigilance wing to investigate the matter. It was found by the Vigilance Wing that the evidence had been tampered with while in court custody.
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