who said rape cases cannot be false ! a case where a Member of parliament had to fight 10 years to exonerate himself !

The Indian Penal Code, 1860

The Code Of Criminal Procedure, 1973

Section 227 in The Indian Penal Code, 1860

Joseph @ Baby vs S.I. Of Police on 20 January, 2005

Section 482 in The Indian Penal Code, 1860

Kerala High Court

Prof.P.J.Kurian, Son Of Joseph vs State Of Kerala on 4 April, 2007

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 3921 of 2006(A)

1. PROF.P.J.KURIAN, SON OF JOSEPH,

… Petitioner

Vs

1. STATE OF KERALA,

… Respondent

For Petitioner :SRI.K.RAMAKUMAR

For Respondent :PUBLIC PROSECUTOR

The Hon’ble MR. Justice K.R.UDAYABHANU

Dated :04/04/2007

O R D E R

K.R. UDAYABHANU, J.

CRL.R.P.NO.3921 of 2006-A

DATED THIS THE4th DAY OF APRIL 2007

ORDER

The revision petitioner/accused in S.C.No. 413/2006 in the file of the Additional Sessions Judge, Thodupuzha has sought for setting aside the order of the court below dismissing his application filed under Section 227 Cr.P.C. seeking discharge and has sought for a total discharge with respect to the proceedings that originated from a private complaint.

The petitioner right now is a Member of Parliament elected to the Council of States (Rajya Sabha) and earlier he had represented five times the Mavelikkara Constituency and once the Idukki Constituency in the House of People (Lok Sabha).

He was also Minister of State for Industries in the Union Council of Ministers and also Minister of State for Non-Conventional Energy, in the Union Government in 1996.

It is stated that attempts were made entirely due to political animosity to implicate him in a much publicised serial rape case (hereinafter to be referred as Suryanelli case) at the time when he was Minister of State for Industries in the Central Government.

While the Suryanelli case was in full media glare, on 30-3-1996, a news item appeared prominently in the front page of the vernacular daily Deshabhimani which is the official organ of Communist Party of India(Marxist) with the headline – “In rape case, Minister Kurian also involved”.

The petitioner immediately addressed a letter to Shri V. Satharkunju, Director General of Police, State of Kerala to conduct an immediate enquiry into the allegations and also wrote to Professor Sugathakumari, Chairperson of Kerala State Commission for Women requesting her to conduct a detailed probe. On 3rd April 1996, he caused a lawyer notice to be sent to the alleged rape victim, her father, Chief Editor, Printer and Publisher of Deshabhimani daily, seeking an apology from them for the defamatory news item and intimating them of his intention to file a suit for damages, if apology is not tendered. The petitioner came to know that on 28-3-1996 a complaint has been made to the Chief Minister of Kerala alleging that the petitioner commited rape on her and that she had identified him.

The complainant had alleged that so many persons had ravished her during the period between 15-2-1996 and 22-2-1996 at the Kumili Panchayat Rest House and the petitioner is one among them . On the orders of the Chief Minister, the Special Investigation Team headed by K.Ittoop, Superintendent of Police, CBCID, Thiruvananthapuram investigated the allegation with respect to the petitioner and submitted a report to Mr. Rajeevan, Deputy Inspector General of Police, Crime Investigation that the petitioner is not involved in the affair at all and that it was humanly impossible for him to reach Kumili at the time mentioned in the compliant on 19-2-1996 as the petitioner was at that time in Thiruvalla in the house of one Sri. P.K.Idiculla, Punnattussery House, Kattukara Road, Tiruvalla till 8 p.m. Sri. Idiculla had affirmed the above fact.

27 telephone calls were made from telephone No.630324 of Sri. Idiculla during the particular day and out of which 23 calls were made by the petitioner in his capacity as Minister between 15.22 hours and 216.49 hours. Most of the calls were made to important persons in Delhi. Sri.K.S.Rajan, District Vice President of the Bharatiya Janata Party, Alappuzha District and Sri Charli Abraham, President of Service Co-operative Bank and Sri. Kuruvilla Jacob, L.D.F. leader had met the petitioner at the house of Sri Idiculla on the particular day at 7 p.m. The above Rajan had issued a press statement as to the above fact which has been published in Malayala Manorama daily dated 8-4-1996.

From the house of Sri.Idiculla, the petitioner had proceeded to N.S.S. Headquarters at Perunna in the State car to meet the N.S.S.Assistant Secretary Sri. Sukumaran Nair. The petitioner was with Mr. Sukumaran Nair till 8.30 p.m. From Perunna, the petitioner had gone back to his residence at Thiruvalla from where at 10.25 p.m. he had talked to the Superintendent of Police, Pathanamthitta in telephone No.0473-32637 for 4 minutes and 56 seconds. This is confirmed by Sri.Harris Xavier, Superintendent of Police, Pathanamthitta.

It is evident from the above fact that the petitioner could not have been present at all at 7.30 p.m. on 19-2-1996 at Kumili Panchayat Rest House. It is also pointed out that he was representing Idukki Constituency in the Lok Sabha and that he was quite familiar in Kumili and that he could not have visited Kumili Rest House unnoticed by the local people.

2. It is further stated that on 9-4-1996, the petitioner filed nomination for contesting to the Lok Sabha from Mavelikkara Constituency. On 12-4-1996, the complainant’s father filed O.P.No.6945/1996 before this Court under Article 226 of the Constitution of India for entrusting the investigation in Crime No.6/1996 of Munnar Police station, i.e. the Suryanelli case to the C.B.I. Crime No.6/1996 was registered on the complaint filed by the father of the girl on 16-1-1996 at 4.45 p.m. alleging that his daughter had eloped with one Raju, a checker in a private bus and that girl has not reached home. F.I.R. was registered on 17-1-1996 for man missing. This Court in O.P.No.6945/1996 proceedings directed the Deputy Inspector General of Police, CBCID to file a comprehensive report relating to the steps taken in the investigation of Crime No.6/1996 within two weeks in a sealed cover so that the allegations may not influence the outcome of elections. On 24-4-1996, Sri.V.R.Rajeevan, Deputy Inspector General of Police, Crime investigation submitted a report in a sealed cover after getting a thorough investigation conducted. A copy of the report was also ordered to be given to the father of the girl on application. On 16-5-1996, the petitioner was declared elected to the Lok Sabha by a huge majority. Thereafter, the writ petition was not pressed and hence dismissed on 24-6-2005. It is pointed out that along with the Parliamentary elections, elections to the State Assembly was also held.

In June 1996, the L.D.F. Government under Sri.E.K.Nayanar as Chief Minister assumed office.

Shri.Nayanar was also the Chief Editor of Deshabhimani daily against whom the petitioner had sent the lawyer notice for defamation.

Chief Minister, Sri. Nayanar appointed Mr.Siby Mathew, D.I.G. of Police as the investigating officer in the Suryanelli case with a specific direction to find out the involvement, if any, of the petitioner.

On 4-7-1996, Sri. Siby Mathew took over investigation.

On 8-8-1996 when the girl was further questioned under Section 161 Cr.P.C. she could not recognize the photo of the petitioner as the person who sexually assaulted her.

3. It is further pleaded that as the Left Democratic Front Government then in office was hostile to the petitioner and as there was attempt to defame him, he filed O.S.No.l4/1997 in the Sub Court, Thiruvalla seeking damages for defamation against Sri. E.K.Nayanar, the then Chief Minister and Chief Editor of Deshabhimani Daily and Sri.P.Karunakaran, Printer and Publisher and also against the complainant and her father. In the final report filed in Crime No.6/1996 by the Special Investigation Team of CBCID headed by Sri Siby Mathew, 42 persons were arraigned as the accused. The petitioner was not implicated in the final report.

On 9-11-1997, a third investigation was conducted by Sri. Somasundaram, the Superintendent of Police, Idukki as to the involvement of the petitioner and he has also submitted a report to the Government that there was nothing to establish the involvement of the petitioner in the case. In the meantime, one person had approached the petitioner offering to clear up the entire issue if the petitioner paid him a substantial amount of money. The petitioner reported the matter to the Superintendent of Police, Pathanamthitta and the above person was detected and it was found that he was one Raghu, suspected to be a D.Y.F.I. (the youth wing of the C.P.M.)sympathizer. He disclosed to the police that he made the offer on the clear instructions of a prominent leader of the Communist Party of India(Marxist). The incident has been reported in various newspapers.

4. It is submitted that it is long after the incident, nearly three years later, i.e. on 15-3-1999 that the complainant has filed a private complaint before the Judicial First Class Magistrate, Peerumedu against the petitioner. The Judicial First Class Magistrate has examined eight witnesses at the instance of the complainant, i.e.CWs.1 to 8. It is pointed out that the total number of witnesses as per the final report in Suryanelli case was 208. On 6-5-1999, counsel for the complainant filed C.M.P.No.3079/1999 before the Magistrate praying that except the eight witnesses already examined, no other witnesses need be examined. The court as per order dated 7-5-1999 has noted that the witnesses not examined are given up at present. The Magistrate has issued summons to the petitioner on the same date without following the mandatory procedure prescribed under Section 202 Cr.P.C. On receiving summons the petitioner filed Crl.M.C.No.2411/1999 before this Court for seeking to quash the proceedings in C.P.No.21/1999, i.e. the case taken into file by the Judicial First Class Magistrate, Peerumedu. The petitioner also filed a petition before this Court requesting for the perusal of the enquiry report kept in the sealed cover in the High Court filed by Sri. Rajeevan, D.I.G.of Police as per the directions of this Court in O.P.No.6945/1996 proceedings. All the same, this Court dismissed Crl.M.C.No.2411/1999 as per order dated 3-11- 1999. Thereupon the petitioner filed special leave petition No. 3908/1999 before the Supreme Court of India. In the meantime one Basheer, who was CW5 in the case, filed O.P.No.6241/20000 complaining of police harassment and the compulsion of the police to implicate the petitioner as an accused and seeking protection from such harassment. On 15-3-2003, the Chief Investigating Officer of Suryanelli case, Sri Siby Mathew, revealed in an interview to “Vanitha” a magazine published by the Malayala Manorama group dated July 15-31 and in Kerala Kaumudi daily dated 28-7-2002 that there is absolutely no evidence to implicate the petitioner in the crime and that he was under severe pressure to somehow falsely implicate the petitioner. He has also mentioned that the Advocate General has agreed with him that there is no evidence to implicate the petitioner. He has also disclosed that during his discussions with Sri. Janardhana Kurup, who has been appointed as Special Public Prosecutor in the Suryanelli case and also the counsel for the complainant and the defendants in the defamation case against the Chief Minister and publisher of Deshabhimani daily etc. Sri.Kurup on examination of the materials has stated that there is no evidence to reveal the involvement of the petitioner. Sri. Kurup later published an autobiography by name “My Life” in July 2003 wherein at page 537 it is disclosed that he himself arranged his son-in-law Sri. Bhaskara Pillai as counsel for the complainant and that he advised so as to see that a complaint is filed by the girl against the petitioner as the petitioner has filed a defamation suit seeking a compensation of R.25 lakhs from the Editor etc. of Deshabhimani daily. The complainant girl has stated in an interview to Malayala Manorama newspaper weekly edition on 15-7-2002 that she is fully satisfied with the investigation conducted by Sri. Siby Mathew, I.P.S.

5. It is further pointed out that in the Suryanelli case, i.e. S.C.Nos.187/91 and 241/2001 tried by the Special Sessions Court although the Sessions Court convicted the accused, the High Court set aside the convictions and that the above decision is reported as Joseph v. Sub Inspector of Police, 2005(2) KLT 269. The High Court has found therein that the girl was not under the age of 16 and that the evidence disclosed that she was a willing party. This Court has found that the allegations of rape is totally unbelievable. The above judgment was rendered on 20-1-2005. In the meantime Sri. E.K.Nayanar died and the petitioner withdrew the case for damages filed by him in Thiruvalla Sub Court on 14-2-2004. The S.L.P. filed by the petitioner over the decision of this Court dismissing Crl.M.C.No.2411/1999 was disposed of by the Supreme Court directing the petitioner to approach the Court of Sessions and to pray for discharge. The Supreme Court has also directed that all orders till then passed by any court in the matter will have to be treated as non-est in considering the application for discharge.

6. In pursuance of the judgment of the Supreme Court, the petitioner filed C.M.P.No.4628/2006 seeking discharge in S.C.No.413/2006(after committal by the J.F.C.M.) in the file of the Additional Sessions Judge, Thodupuzha.

7. It is stressed that all the proceedings and statements implicating the petitioner have been made on the eve of elections. It is contended that the order of the Sessions Judge dismissing the discharge application relying on the judgment of this Court in Crl.M.C.No.2411/1999 is in violation of the order of the Supreme Court as he has copiously quoted from the judgment of this Court in the Crl.M.C., although the Supreme Court had directed that the discharge application should be considered without being prejudiced by the orders of the High Court or that of the trial court. It is evident from the order of the Sessions Judge that one of the main reasons for rejecting the application for discharge is the fact of the order of the High Court dismissing the application filed by the petitioner to quash the proceedings. The action of the Sessions Judge in strongly relying on the order of the High Court amounted to gross contempt of the order of the Supreme Court.

8. It is submitted that further continuance of the proceedings in the Sessions Court will amount to gross abuse of the process of the court and would result in manifest injustice to the petitioner. It is pointed out that the Prosecutrix has been thoroughly disbelieved by this Court. It is pointed out that if the available materials before the Magistrate are examined, no case for trial has been made out and the same is hardly sufficient to frame a charge under Section 376 I.P.C. On the basis of exactly identical allegations this Court has found that no charge under Section 376 I.P.C. can be laid against any one of the accused. The petitioner has been falsely implicated on the eve of the elections with ill-motives and for political gains. It is further pointed out that the father of the girl himself was present in Kumili Rest House on 22-2-2006 and had made enquiries regarding the persons who were present there and yet the identity of CWs.3 to 6 were not brought to the notice of the police officers or the Court of Sessions which tried the Suryanelli case.

In a case where the Prosecutrix has been thoroughly disbelieved, there cannot be a conviction based on her testimony alone in the absence of corroboration. It is pointed out that the petitioner has been unnecessarily harassed for the last 10 years without any justification. It is further stressed that in the complaint filed by the girl to the Chief Minister dated 28-3-2000 the scene of occurrence is mentioned as Kumili Guest House. Later she changed her version as Kumili Panchayat Rest House. In the complaint to the Chief Minister the girl has mentioned that the name of the petitioner was called as Baji. Later when Baji was arrested and arrayed as accused No.33, she changed her version and alleged that the petitioner was called as Banji. It is pointed out that the Sessions Judge has erred in not mentioning the fax message of the Superintendent of Police which was filed by the prosecution before the Sessions Court that there is no evidence of involvement of the petitioner in the Suryanelli case. It is further pointed out that the Sessions Judge failed to take note of the inherent contradictions in the evidence of Cws.2 to 4 and that of CW8.

9. The Director General of Prosecution appearing for the State has formally opposed the petition.

10. The complaint filed on 16-3-1999 under Section 190 Cr.P.C. accusing the petitioner herein contains the following recitals :-

11. In 1996 the complainant was a student of IX-A in L.F.G.H.S.Nallathanni and that she used to travel from Suryanelli, her home place to the school in the bus by name “Companion” at about 8.30 a.m.every day. During the period she happened to be in love with one Raju, S/o.Gopalan who was the checker in the bus and he expressed his affection towards her and they used to exchange letters. She had told about her affair with Raju to one or two of her class fellows. The above said Raju used to come to the school also to meet her. She had given an album containing the photographs of herself and her family members and relatives to her class fellow Fathima. On the next day, the complainant had not gone to the school. Raju saw the album with Fathima and he managed to get the same. The complainant could not get back the album as Raju did not return the same. On 12-1-1996, Raju came to the school and wanted her to take the required dresses and money and said that they would go for a tour. When the complainant was not inclined, Raju threatened her that he will make use of the photos to defame her and her family members in the school and in the locality. He also told her that no harm will be caused to her if she comply with his directions and that she shall be brought back in the school on the Monday morning itself. He also told her that he shall marry her and also return the photo album. On account of the above threat and persuasion and under the impression that he will marry her, she agreed. As directed by Raju on the 16th at 4 p.m. she boarded the particular bus by name Anjali and purchased ticket for Adimali and got down near Adimali Tourist Home and walked down to the bus stand along with Raju. Then he directed her to get into P.P.K.bus that starts at 6.40 p.m. to Kothamangalam and he instructed her not to sit near him. There was a middle aged lady sitting behind the driver’s seat. She was Usha, aged 32, D/o. Gopalan of Ponkunnam as she came to know later. When she got down at Kothamangalam at about 8.15 p.m., Raju was not seen. As it was not possible to return back home as it was late she decided to go to her maternal aunt’s house at Kottayam and boarded the bus towards Muvattupuzha. Usha also boarded the same bus. Thereafter, she has narrated the travails that she had to undergo, that she was taken by Usha promising help and entrusted her with one S.S.Dharmarajan, aged 30, S/o. Sreedharan Pillai of Ponkunnam and that he took her to a lodge near Indian Coffe House at Kottayam and that he committed rape on her, that she was beaten up and threatened and that he took her to Ernakulam, Kozhikode, Palakkad, Kumili, Kanyakumari, Thiruvananthapuram etc. and made to stay in hotels and residences and that she was subjected to sexual intercourse by different persons till 25th February. During the above period while she was under the custody of Dharmarajan and his friends on 15-2-1996 she was again taken to Kumili Panchayat Rest house. Jamal, friend of Dharmarajan and Cheriyachan, the person who was running the Rest House were also involved in keeping her at the above Rest House and the room in which she was kept used to be always locked them outside and they used to open the room only to induct strangers to have sex with her. Jamal and Dharmarajan were collecting money from them. While so, on 19-2-1996 at 7 p.m., Dharmarajan opened the room and brought in a man aged about 50 years, fat and clad in khader dress and locked the room from outside. Dharmarajan was addressing the above person as Banji. The complainant beseeched the above person to rescue her and narrated her that she was being exploited for the last one and half months by Dharmarajan and his friends. But the above person attempted to outrage her and when she protested he caught hold of her neck and slapped her on both cheeks and pushed her down. When she fell down on the cot, he derobed her and had forcible intercourse with her. After some time, he had a repeat of the same with her against her protests, which she has narrated in detail. Thereafter he knocked on the door and Dharmarajan opened the door from outside and Banji left with Dharmarajan and the door was again locked from outside. Subsequently the prosecutrix and her father had complained at the police against Raju, Usha and Dharmarajan etc. The police have investigated and charge sheeted a number of persons. But certain persons were left out. On 26-3-1996 when she was reading the Mathrubhumi newspaper, she saw the photograph of Shri. P.J.Kurian whom she recognised as Banji, the person who ravished her on 19- 2-1996 at Kumili Rest House. She informed the same to her father and he brought the same to the notice of the police authorities investigating into the matter. She has realised that in the final report in S.C.No.35/98 which is pending before the Sessions Court, Thodupuzha, no mention is made about Shri.P.J.Kurian. Delay in filing the complaint was on account of the fact that she was under threat to her life and also as herself and family members were under police protection and hence could not collect the required details to file the complaint. It is alleged that the petitioner herein is equally responsible as the other accused in the case pending and that he is liable to be indicted for the offences under Sections 363,365,366,368,372,373, 376, 392, 109 and 34 of the Indian Penal Code.

12. On the basis of the above complaint, the Judicial First Class Magistrate recorded the sworn statement of the complainant and seven witnesses as Cws.1 to 8. The deposition of CW1, the complainant is in terms of the complaint. CW2 is one T.C.Rjappan who has stated that he is a social worker. He has stated that on 19-2-1996 he had gone to Kumili Panchayat Rest house to see one Gopakumaran, Secretary of the Panchayat who was staying in room No.1 of the above Rest House, at about 6.30 p.m. As the above Secretary had not reached the Rest House, he waited there and at the time Advocate Dharmarajan and P.J.Kurian were found moving up the stair case. At the time he recognized Sri.P.J.Kurian who was the Central Minister and the identity of Dharmarajan could be ascertained later when the news of Suryanelli scandal was flashed in the media. He has also seen Dharmarajan when he was brought to the Rest House for investigation purposes of the above case. He had conveyed the information on the subsequent dates of the presence of Shri. P.J.Kurian to his friends. He has also stated that about 4 months back when he was standing at Thekkady Junction, Sri Markose (father of the complainant) had met him and enquired whether he had seen Prof.P.J.Kurian in connection with the case and then he told him that he had seen Prof.P.J.Kurian. He has further sated that he was not questioned by the police. He had also seen Advocate Dharmarajan taking back Prof.P.J.Kurian at about 7’O clock on the particular evening. He has also seen Dharmarajan closing the door and leaving the place after Sri.P.J.Kurian entered the room.

13. CW3 is one C.Poulose who has testified that he was residing near the Panchayat Rest House and that his avocation is painting. He has stated that on 19-2-1996 he had gone to Kumili Panchayat Rest House. He had been there to play cards with the employees of the telephone department (the father of the complainant is an employee of Post & Telegraph department). The time was about 5.30 p.m. He was playing Rummy (a card game)from inside the room of the telephone employees and after sometime to take a smoke, he came out. Then he saw the erstwhile Member of Parliament Sri. P.J.Kurian and Advocate Dharmarajan getting down the stair case and boarding the car. The time then was about 7.30 p.m. The car was a Maruti 1000, private vehicle. Another person was also sitting in the back seat. He has also stated that about four months back the victim’s father had met him and asked him to depose before the court the above details that he witnessed.

14. CW4 is one Kunjukutty who is a headload worker. At the time of his examination he was unemployed. He is a resident of Vandiperiyar. He has stated that on 19-2-1996 he had been to Kumili Panchayat Rest House in connection with the settlement talks with respect to a dispute in between the headload workers and hill produce merchants at Muvark, Vandiperiyar. There was a police case in connection with the same and he had gone to the quarters of the Circle Inspector of Police to have a talk to settle the matter. The quarters of the Circle Inspector is situated adjacent to the Panchayat Rest House. He had reached the quarters of the Circle Inspector at about 5 p.m. The people nearby told him that the Circle Inspector has gone to Idukki. After about 6 p.m. he saw Sri P.J.Kurian getting into the Guest House on the way from Kottayam in a white Maruti car. At the turning to the Guest House, a tall man was found to signal the vehicle to stop. At that time he saw that the person inside the car was P.J.Kurian,M.P. He was standing at the place smoking a cigarette. The tall person also entered the car and the vehicle went inside the Rest House. The time then was about 6.30 p.m. He waited up to 8 p.m. But he could not meet the Circle Inspector. He was not questioned by the police. About 3,4 months back Sri Markose (he has mentioned him as Sir)met him and asked him whether he can tell the above facts before the court. He had acquaintance with Markose (father of the girl), when Markose used to come to Periyar(Vandiperiyar) to purchase of commodities. He cannot say as to how Markose came to know that he had seen the above facts.

15. CW5 is one Ajas, an autorikshaw driver and a resident of Adimali. He has stated that in the third week of January 1996 he had seen one Raju and Usha conversing with each other. He knew Raju as the Conductor of the bus by name Companion; and Usha is a lady involved in illicit activities. They were standing near to the autorikshaw and he heard Raju telling her that the girl that he had promised to fetch would be arriving soon and that she would be taken to Kothamangalam in P.P.K.bus and thereafter she should take her to Dharmarajan and that she should see that no untoward incident takes place. Usha was found consenting to the same. Thereafter, he saw the girl involved in the Suryanelli incident getting down near Jubily Stores. She got down from Anjali bus. The time then was about 4 p.m. He saw Raju and the girl walking down to the private bus stand and Usha following them. It is only after the media coverage of the incident that he came to know of the details and that the girl is the one involved in the Suryanelli case. He was questioned by the police. After seeing the girl at Adimali he saw her only now in the premises of the court (CW5 has not testified as to anything with respect to the allegations against the petitioner herein as to the prosecutrix’s case of the incident on 19-2-1996 at 7 p.m.)

16. CW6 is one Basheer, a headloaod worker at the private bus stand. He has stated that he is acquainted with Raju who was conductor of the bus by name Campanion. He has deposed that in early January 1996 he saw Raju, Usha and one Advocate conversing. He could not remember the date. The time was about 11 a.m. He heard the Advocate asking Raju as to where is the lady he had promised to bring. Raju replied that everything will be arranged without delay and that he is making the necessary arrangements. The Advocate cautioned him that he should be careful and the matter should not be leaked out. Raju replied that he could bring the girl only upto this place and the rest is the responsibility of the Advocate and that if any police case ensues the Advocate should look after the same. Then the Advocate assured that he will see to it and reminded that he is an Advocate and asked him to be bold and go ahead. Advocate further told Raju that he should mention the date when the girl will be brought and he will arrange Usha to be at the spot and that she will take the girl to Kottayam. CW6 has further stated that when his presence was noticed by them they left the place. After two days he asked Raju about the matter and he informed him that it is a love affair. After some days he heard about to abduction of a girl from Suryanelli and the name of Raju in connection with the same and that he told to his friends about the above conversation. The police have also questioned him. The police got him identified Usha, Raju and the Advocate. He had no previous acquaintance with the Advocate, but he realised that he is an Advocate from the conversation. Usha is a notorious lady who closely moved with men.

17. CW6 has also not testified anything with respect to the allegations in the complaint regarding the involvement of Professor P.J.Kurian, the petitioner.

18. PW7 is the mother of the girl who has deposed that since 16-1-1996 her daughter could not be located. The above information was given to her by the authorities of L.F.G.High School, Nallathanni, Munnar wherein her daughter was studying. On the same day a compliant to the police was submitted by her husband. The girl came back to the office of her husband on 26-2-1996 and then she was taken to the police station and brought back home. The daughter told about the details that Raju took her away and Usha and an Advocate by name Dharmarajan took her to various places in Tamil Nadu and Kerala and made her have sexual intercourse with various persons for consideration. Her daughter told her that when she was taken to Kumili Rest House for the last time, she was sexually ill- treated by 5-6 persons clad in khader dresses and that one of such persons was called by Dharmarajan as Banji. The above was communicated to the police that on 19-2-1996 the above Banji has brutally raped the girl. But the police did not make any proper enquiries to detect Banji. Subsequently in Mathrubhumi newspaper dated 26-3-1996, there was a feature by name (Responses)”prathikaranangal” and just above the above item there was a photograph of Sri.P.J.Kurian, the Minster. On seeing the same her daughter told her that Banji who defiled her on 19-2-1996 at Kumili Rest House is the person seen in the photograph. CW7 conveyed the same to her husband; and on the next day her husband went to the office of the Circle Inspector, Devikulam and informed the Circle Inspector about the same, but the C.I. abused her husband and sent him away. Thereafter her husband gave a compliant to the Chief Minister who was also handling the home portfolio. As the Chief Minister was not available, the compliant was given to the Personal Assistant of the Chief Minister. In the middle of 1997 they received notice from Thiruvalla court in the defamation suit instituted by P.J.Kurian against them and the girl. They had met an Advocate to prepare the written statement. It was only in the middle of 1998 that she and her husband came to know that P.J.Kurian was not made an accused. It was also known that no refer report in this regard was filed and that P.J.Kurian was not made an accused. The attitude of the police was on account of the political influence of Shri. P.J.Kurian and the girl had grievance about the same. The delay to institute the proceedings was on account of their mental agony and financial difficulties and the consequent reluctance to face the society. Further more for the last about 2 = years the family was under police protection and they had to get previous permission of the police to move outside and herself and her husband (both of whom are employed) had difficulties to avail leave. During the period their daughter was yet to be traced, they used to get telephone calls from different sources and from one of such calls they had learnt that the girl is in the Kumili Rest House. On 22- 2-1996 her husband and 2-3 of his friends had stayed for about three days at Kumili Rest House. At that time he had seen

2-3 friends at the place. Later it was mentioned to the above friends that Shri.P.J. Kurian has not been implicated, when he went again to the place to collect information. The 2-3 persons out of the above friends told her husband that they have seen Shri. Kurian at the Rest House on 19-2-1996. It was then the private complaint was filed accusing Shri. P.J.Kurian. They were also not informed about the fact of filing the final report in the case.

19. CW8 is the father of the girl whose sworn statement contained the following:-

He got information at about 7 p.m. on 16-1-2006 that his daughter has not reached the boarding house and immediately he went to the convent where she is studying and made enquiries with the Boarding Mistress, Headmistress etc. and then proceeded to the police station, Munnar and lodged a complaint for man missing. Himself and his friends made enquiries through out the night at Munnar and neighbouring places. He did not get any useful information. He reached back home at 3 p.m.

Then again at 4.30 went back to Munnar and made enquiries with the crew of the vehicles that reached from Tamil Nadu and also from the vehicles that left from Munnar in the night. Himself and friends contacted many police stations in the Tamil Nadu. The attitude of the Circle Inspector of Munnar was only one of harassment. Himself and friends enquired at different places at Idukki also. The police was inactive. On 26-2-1996 his daughter reached back at Munnar Post Office at about 10.30 a.m. He took her to the police station immediately. His daughter was very much sickly and her body appeared fattened . On questioning her she told that for the last 10-42 days she was tortured and sexually exploited by about 10-45 persons and that she happened to be in the gang of Raju, employee in a bus, Advocate Dharmarajan and Usha and they were really engaged in trafficking and supplying her to different persons in different places. She also told her mother that of the persons who tortured her included a person dressed in khader and whom Advocate Dharmarajan called as Bamji. She revealed that on 19-2-1996, the above person brutally raped her. The above information was conveyed to a number of high ranked police officers during questioning. But they did not take any action in this regard. As she had told that a number of khader clad persons had ill-treated her, he used to purchase most of the daily newspapers available in Kerala. While so in the Mathrubhumi newspaper dated 26-3-1996, there was an article published at itself 4th page with the caption “Suryanelli should not be repeated”, in the space marked `Responses’ (Prathikaranamgal). Above the above feature, there was a photograph of the Central Minister Mr.P.J.Kurian and there was an article about the welfare activities done at his instance. His daughter on seeing the photograph recognized Shri. P.J.Kurian as the person used to be called Bamji. He approached the Circle Inspector of Devikulam with the above newspaper. The Circle Inspector at the time was playing shuttle. The Circle Inspector reacted in a foul language and asked him whether he could not get anybody else to accuse and threatened him and sent him away. After coming home and after thinking over the matter, he got a complaint written by his daughter and went to the office of the Chief Minister who was also handling home portfolio. As the Chief Minister was not in his office, the complaint was given at the office of the Chief Minister. The above officer read over the complaint and assured that the complaint will be placed before the Chief Minister and action will be taken. Thereafter he did not get any information as to the further action taken in the matter. Subsequently in the middle of 1997, he received summons from the Sub Court, Thiruvalla in the defamation suit instituted by P.J.Kurian against himself and others. He entrusted the matter with the lawyer. He realised later that no proper action was taken in the complaint against Sri. P.J.Kurian. In the middle of 1998, he realised that the Advocate conducting his part of the case in Thiruvalla is not competent enough and he entrusted the case with another counsel. The above counsel had sought for some more details for filing a written statement. In order to collect the same, he went to various places. It was then from the present Public Prosecutor and others he came to know that no case has been registered against Sri.P.J.Kurian nor was he questioned. That was how he was compelled to collect the details and file a private complaint. Also for some period he was not in a position to face the society and had suffered a lot of mental torture on account of the infamous incidents involving his daughter. In the meantime he had resided at Kumili Panchayat Rest House on February 22nd ,23rd and 24th of 1996 . During the above period, he had observed 2-3 persons and got acquainted with them. For the purpose of the private complaint, he had conducted an investigation by himself, about 4 to 5 months back ( to the date of his deposition). He had gone to Kumili and discussed the matter with Poulose and Rajappan with whom he got acquainted and also Kunjukutty whom he met at the house of Circle Inspector. They told him that on 19- 2-1996 in the evening time they have seen Sri P.J.Kurian at Panchayat Rest House and they agreed to be witnesses. It was in the above circumstances that the filing of the complaint got delayed.

20. It is on the basis of the private complaint and the sworn statement of Cws.1 to 8 that Judicial First Class Magistrate, Peerumedu took cognizance of the matter and committed the case to the Court of Sessions. The J.F.C.M. found that there is “sufficient ground for proceeding” on the basis of the above evidence that consisted of the sworn statement of CW1, the complainant girl, Cws.2 to 4, the witnesses who had seen the petitioner along with Advocate Dharmarajan arriving at the Kumili Panchayat Rest House and the version of Cws.7 and 8, mother and father of the girl. Cws.5 and 6 have not mentioned anything as to the involvement of the petitioner, i.e. Sri.P.J.Kurian.

21. After the examination of the above witnesses, the counsel for the complainant filed C.M.P.No.1436/1999 dated 6-5-1999 before the Judicial First Class Magistrate for dispensing with the examination of further witnesses whose statements have been recorded under Section 161 Cr.P.C.by the investigating agency while investigating Crime No.67/96 of Munnar police station (Suryanelli case).

It is mentioned in the petition as follows:

That the petitioner has produced the final report in the above case wherein there are 42 accused, 208 witnesses, 82 documents and 17 Mos. No case has been registered against the accused in the present complaint who committed rape on the complainant, even though information to that effect was given to the authorities concerned. It is further mentioned that the rest of the witnesses to be examined are common in both the cases. Attested copies of their Section 161 Cr.P.C. statements were produced before the court. Since all the statements of witnesses proposed to be examined before the Sessions Court has already been furnished and the case is one exclusively triable by the Sessions Court, other witnesses to be examined and whose names are mentioned in Section 173 report in Crime No. 67/92 of Munnar police station need not be examined before this Court at this stage.

22. Hence, evidently the Judicial First Class Magistrate was having the final report and the statements of witnesses numbering 208 etc. along with the sworn statements of Cws.1 to 8 at the time of committal. The order mentions that “since a prima facie case regarding the commission of rape punishable under Section 376 IPC is made out against the accused from the sworn testimony of Cws.1 to 8, there is sufficient ground for proceeding against the accuse in this respect.” It is also observed in the above order that nothing could be found on record to come to an inference that the accused was anyway involved in the other offences alleged under sections 363,365,366,368,372,373 and 392 IPC, as an abettor or person who shared of common intention.

23. The J.F.C.M. as per order dated 19-7-2006 committed the case to the Sessions Judge vide Section 209 Cr.P.C. specifying that cognizance is taken only for the offence punishable under Section 376 IPC, although the complainant had alleged offences under Sections 363,365,366,368,372,375, 376 and 329 read with Section 109 and 34 of the Indian Penal Code. The committal order was pronounced after the disposal of criminal appeal No.590/2000 and connected appeals in Suryanelli case by this Court vide Joseph v. S.I.of Police, Munnar (2005(2)KLT 269, acquitting all the accused for the offence under Section 376 I.P.C. It is after conducting enquiry that cognizance was taken for the offence under Section 376 IPC vide the impugned order in Crl.M.P.No.4628/2006 in S.C.No.413/2006.

24. The Additional Sessions Judge, Thodupuzha dismissed the application filed by the petitioner/accused under Section 227 Cr.P.C.for discharge vide oder dated 25-10-2006. The Supreme court vide order dated 8-3-2006 disposed of Crl.A.No.418/2000 filed by the petitioner/accused over the decision of this court in Crl.M.C.No.2411/1999 under Section 482 Cr.P.C. The Supreme court disposed of the matter allowing the prayer of the petitioner for withdrawal of the appeal so that he can file a petition for discharge before the Sessions court. The Supreme Court allowed the prayer observing that the discharge petition is to be disposed of on its merits without being prejudiced by any observation made in the said two orders passed by the trial court, i.e. the order in C.M.P.No.1436/1999 after enquiry under Section 202, i.e. private complaint and the order of this Court in the Crl.M.C. filed under Section 482 Cr.P.C.

25. The Additional Sessions Court vide its order in Crl.M.P.No.4628/2006,the discharge petition, has observed that the documents of investigation said to have been conducted by three top ranking police officers about the alleged involvement of the petitioner and the finding that the petitioner is not involved are not relevant at the stage of framing charges as the authenticity of the above documents are yet to be proved, and that the plea of alibi also cannot be looked into at the particular stage. It is mentioned that it is true that the police officers had reached a conclusion that the petitioner had not visited the Rest House, Kumili on the crucial date. It was also observed that the veracity of witnesses, CWs.2 to 4 who have testified as to having seen the petitioner at the Kumili Rest House also cannot be tested at this stage. The fact that no steps for test identification parade was taken is also noted. The observation of this court in Crl.M.C. No.2411/1999 that however high the status of a person may be like that of the petitioner that he is a Professor and the Minister in the Central Cabinet, the same is not a criteria to rule out the inclination for extra marital sex was highlighted in the order. The contention as to the inordinate delay in filing the private complaint was rejected relying on the fact that the High Court in its order has considered the same elaborately and rejected the above contention. According to the Additional Sessions Judge, the allegations are clear specific and unambiguous and therefore, the complainant should be given a chance to prove her case.

26. I find that, as contended by the counsel for the revision petitioner, the reliance placed by the Additional Sessions Judge with respect to the findings and observations of this Court in its order in Crl.M.C.No.2411/1999 amounts to total disobedience of the direction of the Supreme Court that the Sessions Judge is to dispose of the application for discharge on its on merits without being prejudiced by any observations made in the order of the committal court as well as that of the High Court. The Additional Sessions Judge has not considered the application for discharge on its merit, but has only disposed of the application in a perfunctory manner.

27. I find that the proceedings initiated against the petitioner and the preliminary evidence adduced in support of the allegations contained a number of discrepancies and manifest contradictions and the evident circumstances that belie the truthfulness of the case set up by the complainant. The same are so countervailing that the application for discharge is to be closely scrutinized. In the complaint filed before the Chief Minister dated 28-3-1996, the complainant has mentioned that the khadi clad person who beat her on both the cheeks, pressed her neck, pushed her down and raped her twice at Kumili Rest House was called Baji by Dharmarajan. Subsequently in the private complaint filed dated 16-3-1999, i.e. after about three years the above name is mentioned as Banji. It has been pointed out in the reports of the investigating officers that Baji was subsequently arrested and that he is an autorikshaw driver by name Antony and he stood trial as accused No.33. Evidently, the substitution of the name as Banji was made to overcome the above situation.

28. In the complaint to the Chief Minister the place wherein she was allegedly ravished by the petitioner is mentioned as at Kumili Guest House whereas in the private complaint filed the place mentioned is Kumili Rest House. It is pointed out that both the places are different and the difference is well known to the persons of the locality. The above shift of place as is pointed out is to suit the details mentioned in the main case, i.e. Suryanelli case that the complainant was forcibly lodged at Kumili Rest House from 15-2-1996 to 21-2-1996 and that a number of persons committed rape on her during the above period. Another factor is that in the complaint to the Chief Minister, the exact date and time has not been mentioned. What is mentioned in the complaint to the Chief Minister is that while she was kept under detention in the Kumili Guest House, the petitioner had raped her. The details are only mentioned in the private complaint wherein the date is mentioned as 19-2-1996 and time mentioned as 7 p.m., for the first time in the private complaint. As is pointed out it was only on the above date the petitioner who was then a Central Minister had no official programme. For the rest of the days he was in Kerala i.e. from 17-2-1996 to 25-2-1996 he had official programmes as is evident from the report of the investigating officers. The charge sheet in Suryanellii case was submitted on 18-8-1997. It is more than 1 = years later that the private complaint has been filed. There was extensive media coverage as to the persons indicted and as to the details in the final report in the Suryanelli case and the complainant and her father would have been aware of the fact that the petitioner herein has not been made an accused. Hence, the selection of date and time in the private complaint for the first time is relevant and is a circumstance that render doubtful the case set up by the petitioner. The delay is of critical importance so far as a criminal case is concerned.

29. As it is pointed out, when the Chief Investigator Mr. Siby Mathew, I.P.S. and the D.I.G. of Police when questioned her further on 8-8-1996, she could not recognize the photograph of Sri.P.J.Kurian, the petitioner, as can be seen from the copy of Section 161 Cr.P.C. statement produced.

30. It is seen that in the first information statement lodged in Suryanelli case or in Section 161 Cr.P.C. statement of the complainant earlier, there was no allegations of rape committed on the particular day and time. The contention is that it is just on the eve of the dates of filing nomination to the Lok Sabha and the State general elections that the newspaper Deshabhimani which is the official organ of the then opposition, i.e. CPI(M) party that carried the news item that the petitioner is also involved. The petitioner filed nomination papers on 9-4-1996. It was on 30-3-1996 that the news item appeared in the above newspaper. It is the case of the complainant that she realised that one of the persons who committed rape on her is the petitioner when she saw the photograph of the petitioner in the Mathrubhumi daily dated 28-3-1996. No definite finding based on the above allegation that the motive was political can be entered into.

31. CWs.2 to 4 are the only witnesses, as to having noticed the presence of the petitioner in Kumili Guest House. The existence of CWs.2 to 4 has been mentioned for the first time in the private complaint filed. Their names were not revealed to the investigating officers during the entire investigation of Suryanelli case that lasted for 1 = years and when the role of the petitioner was particularly investigated repeatedly. It has to be noted that the investigation was done in a thorough professional manner under the guidance of top ranking police officials and by a special investigation team. I find that the above is a very relevant factor in considering the evidence in support of the case of the complainant. As pointed out, it has to be noted that 208 witnesses have been cited in support of the prosecution case in the Suryanelli case. Emergence of the above three witnesses after 1 = years of the filing of the final report in Suranelli case ought to have been seriously considered by the courts below.

32. It is in evidence in the present proceedings that as per the sworn statement of CWs. 7 and 8, the mother and father of the girl respectively as well as that of CW1, the complainant, that CW8,the father of the girl and his friends had stayed at Kumili Rest House, the alleged scene of occurrence, on 22nd, 23rd and 24th of February 1996 in order to make enquiries with respect to the disappearance of the girl. As per the complainant’s case she was detained at the above Rest House from 15-2–1996 to 21-2-1996. In the above circumstances the version of CW8, the father of the girl that only recently i.e. at the time of filing of the private complaint, he came to know that Cws.2 to 4 witnessed the presence of the petitioner in the Rest House on 19-2-1996 is hard to believe.

33. As pointed out, the investigation as to the involvement of the petitioner was conducted at the top most level and immediately on receipt of the complaint before the Chief Minister. As pointed out thrice the alleged role of the petitioner was investigated and the officials have reported that absolutely there was no evidence to implicate the petitioner. As per the documents produced by the accused, the genuineness of which has not been disputed, including the report of the Superintendent of Police, Narcotic Cell, CBCID who headed the special investigating team in the first phase vide report dated 8-4-1996, the activities of the Central Minister on the particular day has been fully verified and that it was found that in the afternoon of the particular day he was in the house of one Idiculla at Thiruvalla at about 8 p.m. and had made 27 telephone calls from the telephone of Sri. Idiculla, i.e. telephone No. 630324. The details of the telephone calls and the timings have also been produced as the print out from the department concerned. Various persons have visited the Central Minister from the house of Sri. Idiculla and the statements of the above persons were recorded. Thereafter, the petitioner left for N.S.S. Headquarters, Perunna to meet N.D.P. General Secretary Sri SukumaranNair. Sri. Sukumaran Nair has given a statement that the petitioner was with him till at about 8.30 p.m. It has also been reported that it would be virtually impossible to reach Kumili from Thiruvalla in the meantime as it would take about 5 hours journey to reach Kumili from Thiruvalla. On the instructions of the then Chief Minister to the Director General of Police, the matter got investigated through Sri. Rajeevan, D.I,G.of Police who through the special investigation team headed by the Superintendent of Narcotic Cell investigated the same and submitted the report. Later, after the installation of the new Government subsequent to the general elections in June 1996 with a different political dispensation headed by the Communist Party of India(Marxist), the special investigation team was ordered to be led by Sri. Siby Mathew,I.P.S. It was he who investigated the Suryanelli case thereafter. The above investigation has also totally absolved the petitioner. Another investigation as to the involvement of the petitioner was also conducted by Sri. Somasundaram, Superintendent of Police, Idukki on 9-11-1997 which has also absolved the petitioner. The above facts are also not disputed by the State/respondent.

34. The father of the complainant girl filed Original petition before this Court as O.P.No.6945/1996 on 24-4-1996 to have the investigation conducted by the C.B.I. as according to him, the investigation so far was not satisfactory and influential persons like the petitioner are not being implicated by the investigating officers. As the O.P.was filed on the eve of the general elections, this court called for report as to the investigation and the involvement of the petitioner, Sri.P.J.Kurian in a sealed cover. The same was placed before me at the request of the revision petitioner. The above report has been submitted by Sri. V.R.Rajeevan, D.I.G. Crime investigation (SR). The above report contains the details of the exhaustive investigation that was being done in the matter. The above report is based on the report of the special investigation team and mentions the names of persons deputed to conduct the investigation with respect to the involvement of Sri.P.J.Kurian. A detective Inspector of C.B.C.I.D. was specially deputed to conduct enquiries as to the details of the programme of the Minister and the report contains the details of his daily programmes from 17-2-1996 to 25-2-1996 the period during which he was in Kerala. The activities of the Minister on 19-2-1996 is mentioned therein in detail and it is concluded that Sri.P.J.Kurian could not have gone to Kumili on 19–2-1996 in the evening.

35. The prosecution has submitted a report before the Additional Sessions Court on 28-9-2006 of K.K. Joshua, Superintendent of Police. Therein the details in short of the Suryanelli rape case and its culmination at the time is mentioned. It is stated that the accused have been convicted by the Special Sessions Court (the report was filed before the decision of this Court in appeal in Suryanelli case acquitting the accused except A1) and that the alleged role of Sri.P.J.Kurian was investigated in detail and that no evidence could be obtained about his involvement. The report is reproduced as such: Crime No.6/96 of Munnar Police Station was registered on 17-1-1996 on the basis of statement of Shri.Mani Marcose, Post Master, Munnar regarding the missing of his daughter Renjitha from the premises of Little flower Girls High Court, Nallathanni on 16-1-1996. The case was registered under caption Man Missing and the offence was later altered to 366(A), 372, 373, 376 and 34 IPC on the return of the girl on 27-2-1996. Thereafter the case was investigated by C.I.of Police, Munnar, C.I.of Police Devikulam and Deputy Superintendent of Police, Munnar till 19-3-1996, and Superintendent of Police, CBCID, Narcotic Cell, TVPM during the period from 19-3-1996 to 5-7-1996.

Vide reference No. 32745/D3/96/Home dated 25-6-1996 Government decided to constitute a Special Investigation Team headed by Shri. Siby Mathews IPS for the investigation of the case. The Special Team took up the investigation on 16-7-1996 and completed the investigation.

Final report was filed before the Judicial Magistrate of the First Class, Devikulam on 8-8-1997 against 42 accused.

The alleged role of Sri.P.J.Kurian was investigated in detail and no evidence could be obtained about his involvement in the commission of the offence. He was not included as an accused.

The trial of the case against 40 of the accused was conducted by the Additional Sessions Court, Kottayam in SC.187/99.

Charge against A40 was abated on his death. Another accused was not located.

All the remaining accused except A23. 26, 32 and 36 were convicted under various sections of offence in judgment dated 2-9-2000.

Trial against accused Dharmarajan was conducted by the Court in SC.211/001 and vide judgment dated 10-7–2002 was also convicted.”

The Sessions Judge in his order dated 25-10-2006 has not considered the above report nor mentioned anything in his order about the above report.

36. It is also relevant that the prosecution in the present private complaint examined only eight witnesses of whom CWs.5 and 6 did not mention the role of Sri.P.J.Kurian or as to his presence at the Rest House. CWs.7 and 8, as already noted above are the mother and father respectively of CW1, the complainant. As mentioned above, the prosecution filed a statement vide C.M.P.No.3079/99 dated 6-5-1999 before the Judicial First Class Magistrate that no more witnesses are to be examined and that the rest of the witnesses that was proposed to be examined are the same witnesses in the Suryanelli case. The prosecution also produced the charge sheet of the Suryanelli case and the attested copies of Section 161 Cr.P.C. statements of the witnesses of Suryanelli case. It is also to be noted that the recitals in the private complaint is the same as the F.I.S.in the Suryanelli case except with respect to the involvement of Sri.P.J.Kurian, the petitioner herein. In view of the fact that the prosecution has produced the charge sheet and Section 161 Cr.P.C. statements of the 208 witnesses of the Suryanelli case and the other records of the investigation, the court below should have considered the above charge sheet and Section 161 Cr.P.C. statements of the witnesses and the investigation particulars in the Suryanelli case to ascertain the genuineness of the prima facie case set up by the complainant. The same was not done . The contention of the revision petitioner that none of the witnesses in the Suryanelli case including the complainant had deposed as to the involvement of Sri.P.J.Kurian has not been disputed. It is also not disputed by the respondent-State that the involvement of the petitioner was investigated in detail and that there was absolutely no evidence to indicate the involvement of the petitioner. The case of the petitioner that he having represented the Idukki Constituency that included Kumili wherein the Rest House is situated and that too in a crowded place in the heart of the town, his presence, if any, on the particular date would not have gone unnoticed as he is very familiar in the area requires consideration. It has also to be noted that at the time he being a Central Minister, his presence at a public place like the Rest House and that too at about 7 p.m. would not have gone unnoticed.

37. On an examination of the evidence of CWs.2 to 4, I find that the evidence of the above persons cannot be said to be of a reliable nature. CW4 is not even a local person and his presence at the place and his alleged acquaintance with the father of the girl are not of an acceptable character. He belonged to Vandiperiyar which is situated at about 20 kms. away from Kumili. It appears from his evidence that he is a Trade Union activist. CW2 is said to be a social worker. Even as per the admission he is only a chance witness. CW3 is a painter by profession and he is also a chance witness. As noted above, the above witnesses surfaced only on filing the private complaint i.e. 1 = years after the filing of the final report in the Suryanelli case. Their presence in the Kumili Rest House was not mentioned throughout in the investigation of the Suryanelli case or at its trial by any of the witnesses including the complainant and her father. As per the prosecution, all the witnesses of the Suryanelli case are to be examined in support of the prosecution. Evidently, the testimony of none of the 208 witnesses cited in the final report in Suryanelli case would be of any help to sustain the prosecution version herein. As to how CWs.2, 3 and 4 got acquainted with CW8, the father of the girl and how the father of the girl knew as to their presence, that too, belatedly, stands unexplained. The formidable evidence as to the non-involvement of the petitioner in contrast to the evidence of CWs.2 to 4 and that of CW1, the latter appears flimsy.

38. It is also seen that from the verification of records in O.P.No.6945/1996 that on 30-4-1996 this Court had ordered to furnish a copy of the report submitted in sealed cover to the petitioner in the O.P., i.e. Sri.Mani Marcose, the father of the Prosecutrix on application. The father of the Prosecutrix has applied for the copy of the report in May 1996 in May 1996. Hence the version of the Prosecutrix or that of her parents, i.e. Cws.7 and 8 that they became aware that the investigating authorities did not implicate the petitioner only in the middle of 1998, much after the filing of the final report in the Suryanelli case is totally false.(Final report in Suryanelli case was filed on 12-8-1997).

39. As pointed out by the counsel for the revision petitioner, Case Diary (Vol.IV) pp.1625 and 1627 of Suryanelli case contains the notes of the head of the investigating team that he along with Sri. K.K.Joshua, Dy.S.P. had a discussion with Sri.G. Janardhana Kurup, Special Public Prosecutor and that the Special Public Proecutor insisted that the prosecution is not expected to find alibi for the accused and the only question is whether the version of the girl is probable. It is also noted therein that regarding the above, there were lengthy discussion for two days and the investigating officer expressed serious difference of opinion and pointed out that no evidence has been gathered to implicate Shri. Kurian and he gave his remarks on the legal opinion in writing and suggested that further verification on this aspect may be done, if considered necessary, by another team of officers. Subsequently, the draft charge excluding Sri.P.J.Kurian was approved.

40. Apart from the evidence of Cws.2 to 4, which I have already discussed and found not credible, the rest of the evidence is that of the CW1, the complainant and Cws.7 and 8, the mother and father respectively. The evidence of Cws.7 and 8 is only hearsay and hence no evidentiary value can be attached to the same. The evidence of CW1 is a ditto reproduction of the recitals in the complaint. There is no explanation as to the apparent contradictions as pointed out with her previous statements in the Suryanelli case and the present version. If the alleged accused/petitioner is made to undergo trial also, CW1 would not be able to explain the above inherent contradictions and inconsistencies. The Division Bench of this Court in Joseph v. S.I. of Police,Munnar, 2005(2)KLT 269 (order in appeal in Suryanelli case ) has acquitted all the accused except A1, Dharmarajan and he too was convicted only for the offences under Sections 366 A and 372 I.P.C. and not for the offence under Section 376 I.P.C.

41. Of course, at the stage of framing charge, no court can place reliance on interviews of Sri.Siby Mathew, I.P.S., the head of the investigation team and that of the complainant girl published in Weeklies and also on the extract from the biography of Sri. Jananrdhana Kurup, the Special Public Prosecutor in view of the commercial dimension of the publications involved.

42. The other question that remains is whether at the time of framing charge the court can look into the documents produced by the accused? The final word on the matter has been pronounced by the larger three Bench of the Supreme Court on reference in State of Orissa v. Debendra Nath Padhi, AIR 2005 S.C.359. After elaborately discussing the case law on the point, the court specifically overruled the decision in Sathish Mehta v. Delhi Administration,1996(9)S.C.C.766 and held that clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. The court also held in no uncertain terms that the accused has no right at the above stage to resort to Section 91 Cr.P.C. to get the documents produced and that under Section 227 what is necessary and relevant is only the record produced in terms of Section 173 of the Code. But the court has observed at para.29 in Debendra Nath Padhi’s case (op.cit), while considering the argument of the accused having to face trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of the Constitution of India is unlimited whereunder in the interests of justice, the High Court can make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice within the parameters laid down in Bajan Lal’s case (State of Haryana v. Bhajan Lal, AIR 1992 SC. 604).

43. The Supreme Court in M/s. Pepsi Foods ltd. v. Special Judicial Magistrate, A.I.R. 1998 SC.128 also has observed that it is settled that the High Court can exercise its power of Judicial review in criminal matters. Nomenclature under which the petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case the court finds that the appellants could not invoke its jurisdiction under Art.226, the court can certainly treat the petition as one under Art.227 or S.482 of the Code. It may not, however, be lost sight of, that provisions exist in the Code, of revision and appeal but sometime for immediate relief S. 482 of the Code or Art.227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts, it was observed. The present petition though filed in the High Court as one under Articles. 226 and 227 could well be treated under Art.227 of the Constitution, the Apex Court noted therein. Summoning of an accused in a criminal case is a serious matter. The Supreme Court has cautioned that criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and consider whether it would be sufficient for the complainant to succeed in bringing charge home to the accused. When the complaint does not make out any case against him, it cannot be that still he must undergo the agony of a criminal trial.

44. Subsequent to Debendra Nath Padhi’s case the Supreme Court in Popular Muthiah v. State, (2006)7 S.C.C.296 at para.21 has considered the special powers of the High Court thus:

The Code of Criminal Procedure is an exhaustive code providing a complete machinery to investigate and try cases, appeals against the judgments. It has provisions at each stage to correct errors, failures of justice and abuse of process under the supervision and superintendence of the High Court as would be evident from the following:

(i) The Court has the power to direct investigation in cognizable cases under Section 156(3) read with Section 190 of the Code of Criminal procedure.

(ii) A Magistrate can postpone the issue of process and inquire into the case himself under Section 202(1) of the Code of Criminal procedure.

(iii) When a charge-sheet is filed, the court can refuse to accept the same and proceed to take cognizance of the offence on the basis of the materials on record. The court can direct further investigation into the matter.

(iv) The Magistrate may treat a protest petition as a complaint and proceed to deal therewith in terms of Chapter XV of the Code of Criminal Procedure.

(v) Once the case is committed, the Sessions Judge may refer the matter to the High Court.

(vi) In the event, without taking any further evidence, it is found that while passing the order of commitment, the Magistrate has committed an error in not referring the case of an accused or left out an accused after evidence is adduced, the court may proceed against a person who was not an accused provided it appears from the evidence that he should be tried with the accused.

(vii) The Revisional Court during pendency of the trial may exercise its revisional jurisdiction under Section 397 in which case, it may direct further inquiry in terms of Section 398 of the Code of Criminal Procedure.

(viii) The revisional powers of the High Court and the Sessions Court are pointed out in the Code separately from a perusal whereof it would appear that the High Court exercises larger power.

(ix) In the event of any conviction by a Court of Session, an appeal there against would lie to the High Court. The appellate court exercises the power laid down under Section 386 of the Code of Criminal procedure in which event it may also take further evidence or direct it to be taken in terms of Section 391 thereof.

(x) The High Court has inherent power under Section 482 of the Code of Criminal procedure to correct errors of the courts below and pass such orders as may be necessary to do justice to the parties and/or to prevent the abuse of process of court. The Supreme Court held that the High Court apart from exercising its revisional or inherent powers indisputably may also exercise its supervisory jurisdiction in terms of Article 227 of the Constitution of India and in some matters in terms of Section 483 thereof, to prevent abuse of process of the court. The High Court while exercising its revisional or appellate power may exercise its inherent powers both in relation to substantive as also procedural matters, irrespective of the nature of the proceedings and suo motu in the interest of justice and no formal application is required to be filed therefor. The court has quoted from its own earlier decision and has also noted that the use of extra ordinary powers conferred upon the High Court are however required to be reserved as far as possible for extra ordinary cases. I find that the court is not empowered to order a person to face trial just because the allegation constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge (R.P.Kapur v. State of Punjab, AIR 1960 SC 866).

45. The Supreme Court in Dilwar Babu Kurane v. State of Maharashtra, AIR 2002 S.C.564 has delineated the role of the court while framing charge. It has been observed that it is a settled position of law that the Judge while considering the question of framing charges under Section 227 has the undoubted power to swift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused and in exercising jurisdiction under Section 227 of the Code of Criminal procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case; the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

46. I find that in the instant case the complainant herself has produced the charge sheet and the copy of Section 161 statements of the witnesses in the Suryanelli case. The incident alleged against the accused is part of the serial rape allegedly committed on the complainant girl. Before the Sessions Court, the Prosecutor has filed a report of the police wherein it is mentioned that Shri. P.J.Kurian, the petitioner herein, on investigation was found to have been not involved at all. The witnesses sought to be examined at the trial as per the petition of the counsel for the complainant included the witnesses in the Suryanelli case. As per Section 208 Cr.P.C., the Magistrate shall furnish to the accused copy of statements recorded under Sections 200 or 202,at all persons examined by the Magistrate as well as the statements and confessions, if any, recorded under Section 161 or Section 164 and the documents produced before the Magistrate on which the prosecution proposes to rely, in a case instituted otherwise than on a police report. Hence in the present case, the courts below should have considered the investigation particulars of the Suryanelli case as the situation herein is different from what is contemplated in Debendra Nath Padhi’s case (op.cit). It has to be noted that the above documents were produced by the complainant herself and not produced at the instance of the accused.

In the light of the above discussion, I find that the courts below have erred in taking cognizance of the case and also in dismissing the application filed for discharge under Section 227 Cr.P.C. I find that the circumstances and evidence produced in the matter do establish that the case foisted against the petitioner is false. It is quite unfortunate that the petitioner had to undergo the trauma of facing such a false case of a scandalous nature, for the last more than one decade. The entire proceedings against the petitioner is liable to be set aside; and and I do so. The petitioner/accused shall stand discharged. The Crl.revision petition is allowed.

K.R.UDAYABHANU, JUDGE

ks.

source : Indianknoon dot org

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