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High Court breather for Kerala transport minister

- August 3, 2022

Thiruvananthapuram, August 3 (BPNS)

Kerala’s transport minister Antony Raju could heave a sigh of relief, at least for now, as the Kerala High Court on Wednesday stayed all further proceedings against him for a month in an evidence tampering case dating back to 1990.

In an interim order on Wednesday, Justice Ziyad Rahman AA said that prima facie the arguments favor the petitioner and thus a stay order is being granted.

The minister was expected to face proceedings before the Judicial First Class Magistrate Court-I, Nedumangad.

In the interim order, the court observed that as per section 195 of the Criminal Procedure Code(CrPC), the prosecution in respect of the offense under section 193(fabrication of evidence) of the Indian Penal Code(IPC) and the conspiracy to commit the same could only be prosecuted based on a complaint by the court concerned or the officer authorized by the court. It was seen that this procedure had not been complied with.

This in turn came in favor of Antony.

The evidence tampering case pertains to the acquittal of an Australian national in the narcotic smuggling case on April 4, 1990. The acquitted, Andrew Salvatore Cervelli, was arrested at the Thiruvananthapuram International Airport on the charge of concealing 61.5 gm of hashish in his underwear. The underwear later becomes one of the pieces of evidence. However, he got acquitted by the high court in 1993 citing a lack of evidence. The counsel for him, incidentally Antony Raju, proved that the underwear was too small for him and it doesn’t make any sense to believe that he used the same for concealing hashish.

But the then investigating officer, KK Jayamohan, filed a petition before the high court that the evidence was tampered with while it was in the custody of the court. The court then directed its Vigilance wing to conduct an inquiry. The inquiry corroborated the investigation officer’s charge. Following this, a case was registered at the Vanchiyoor Police Station with FIR no. 215/1994.

At the same time, in his petition, Antony highlighted that while acquitting the accused, 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.

The magistrate court had taken cognizance of the case on a charge sheet by the police. However, the police had no authority to investigate such cases. He argued that the magistrate court ought not to have taken cognizance of the offense under section 193(fabrication of evidence) of IPC unless a complaint was lodged by a court in writing or its authorized officer. Therefore, the procedure adopted by the lower court was patently illegal.

Meanwhile, the Kerala High Court on July 29 came down heavily on the inordinate delay in commencing the trial of the criminal case. It also sought a report from the judicial magistrate court for the same. The court then acted upon public interest litigation moved by George Vattukulam. It turned out that although the charge sheet was submitted in the magistrate court in 2013, the case has been pending trial since then.