[BREAKING] Kerala High Court stays underwear evidence tampering case against State Transport Minister Antony Raju

The Kerala High Court on Wednesday temporarily stayed a case of alleged underwear evidence tampering against Antony Raju, the State Transport Minister and leader of the Janadhipathya Kerala Congress party, which is part of the ruling Left Democratic Front coalition[Adv. Antony Raju v State of Keraa & Anr.].Justice Ziyad Rahman AA opined that Raju had made a prima facie case in his favor as the offences alleged can only be prosecuted on the basis of a complaint by the court concerned or an officer authorised by it, and not the police as was done in the instant."It is seen from the record that the aforesaid proceedings have not been complied with in this case and therefore I find a prima facie case in favour of the petitioner. Therefore, it is ordered that there shall be an interim order staying all further proceedings in CC 11/2014 on the file of the Judicial First Class Magistrate Court, Nedumbangad for a period of one month", the Court said in its order..The Court was hearing a plea moved by Raju, through Deepu Thankan & Co., under section 482 of the Code of Criminal Procedure to quash the case against him.It was Raju's argument that the crucial piece of "underwear evidence" was in the custody of the trial court while it was allegedly tampered with and, therefore, it should have been the court in question that initiated the proceedings to look into the same. However, in this case, the proceedings were initiated on the complaint of the police."However, in the case of the petitioner, the prosecution has been initiated by the Police and not by the Court, which is per se illegal and the Court has no jurisdiction to take cognizance of the offense if the complaint is not by the Court, as the offense is alleged is section 193 of the IPC," the plea said..He submitted that section 195 CrPC creates a bar in taking cognizance of the complaint filed by the Police and no court shall take cognizance of the offense under section 193 of the Indian Penal Code except upon a complaint filed by the Court.Further, it was argued that sections 340 and 341 CrPC state that the court is not bound to make a complaint regarding the commission of an offense referred to in section 195(1)(b), as the court must judge if the same has a significant impact on the administration of justice."There are patent illegalities in the procedures adopted by the administration wing of this Hon'ble Court, by the Sessions Court, Thiruvananthapuram and the Police in the matter, and same has commenced and completed ignoring the bar created under the s. 195 (1) (b) of the Code and procedure stated in Section 340 of the Code," the plea stated..The particulars of the case dates back to 1990 when Raju was a junior lawyer representing an Australian man, Andrew Salvatore Cervelli, who was accused of smuggling hashish to India by concealing it in his underwear.When Cervelli approached the High Court in appeal against his conviction by a trial court over 30 years ago, the underwear in question was found to have mysteriously shrunk in size, leading the High Court to acquit Cervelli of all charges.A few years later, the investigating officer in the smuggling case, approached the High Court seeking a probe into the alleged evidence tampering. Subsequently a first information report (FIR) was registered against Raju in 1994 on a complaint filed by the Sheristadar of Sessions Court, Thiruvananthapuram.After 12 years of investigation, in 2006, the Assistant Commissioner of Police filed a charge sheet before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram alleging offenses under sections 120(B) (criminal conspiracy), 420 (cheating and dishonestly inducing delivery of property), 201(causing disappearance of evidence of offence), 193, 217, and 34 of the IPC."Admittedly the court took cognizance of the matter upon a charge sheet by the police and the police have no authority to conduct an investigation in such cases and file a charge sheet before the court. Thus the proceedings pending before the court is nonest in the eye of law," the plea stated..Recently, a petitioner had approached the Kerala High Court seeking a court-ordered enquiry into the undue delay in the trial, contending that the public has a right to know about any fraudulent activities that a sitting minister may have been involved in. Accordingly the High Court had called for a status report on the trial..Antony Raju was represented by advocates Deepu Thankan, Ummul Fida, Lakshmi Sreedhar, R Rajanandini Menon and Shahnas KP..[Read Order]