Kerala High Court refuses to suspend Antony Raju's conviction in underwear evidence tampering case

The Kerala High Court on Tuesday refused to suspend the recent conviction of former Kerala Minister Antony Raju in the underwear evidence tampering case [Antony Raju v. State of Kerala]..Single-judge Justice C Jayachandran dismissed Raju's plea against the sessions court's refusal to suspend his conviction. The High Court opined that there were no serious flaws in the judgment convicting Raju so as to warrant suspension of conviction."Therefore, in the absence of a serious infirmity or a fundamental flaw, probabilising preponderently a possible interference with the judgment, ultimately leading to the acquittal of the accused, the judgment of conviction is not liable to be stayed/suspended," the Court said. With this verdict Raju will be ineligible to contest in the upcoming Assembly Elections unless the Supreme Court overturns this order..Raju is the leader of the Janadhipathya Kerala Congress party, which is part of the ruling Left Democratic Front (LDF) coalition in Kerala.Raju was convicted on January 3 by the Nedumangadu Judicial First Class Magistrate Court-I in the evidence tampering case which has a history spanning over three decades.His appeal against the conviction is pending before a sessions court. While the sessions court suspended his jail sentence, it declined to suspend his conviction which effectively keeps Raju disqualified from being a Member of the Legislative Assembly (MLA).Raju's plea against the sessions court's decision was rejected by the High Court today..The High Court said that it has to take a cautious approach when considering such cases where the consequence of conviction is to be barred from being an elected representative of the people. "When the law is settled, that suspension/stay of conviction, can only be in exceptional circumstances. I am of the opinion that, when it comes to a suspension/stay of conviction, in the context of the interdiction under Section 8(3) of the Representation of People Act, Courts of law should be slow and doubly cautious in ensuring that such suspension/stay is granted only in befitting cases, since it virtually overturns a statutory mandate," the Court said. Citing a host of precedents, the Court observed that suspension of conviction ought to be granted only when the judgment of conviction which is under challenge marred by palpable perversity. "I am of the definite opinion that a 'very exceptional circumstance' should necessarily be borne out from the judgment impugned itself, that is to say, a palpable perversity or patent unreasonableness writ large on the face of the impugned judgment," the Court said. .The case against Raju stemmed from another case dating back to 1990 when an Australian national, Andrew Salvatore Cervelli, was arrested at the Thiruvananthapuram airport for allegedly smuggling 61.5 grams of charas concealed in his underwear.Cervelli was initially convicted by a trial court. However, on appeal, the High Court of Kerala noted that the underwear produced as material evidence was smaller than the size recorded at the time of seizure. Taking note of this discrepancy, the Court acquitted Cervelli.Subsequent information received from the Australian National Central Bureau indicated that the underwear produced as evidence in the Cervelli case may have been altered while it was in court custody.A criminal case was registered in 1994 against Raju, who was then a practising lawyer and had represented Cervelli. A case was also lodged against a court clerk, KJ Jose and charge sheet was filed in 2006.The proceedings were later revived following orders of the High Court and the Supreme Court, and the trial resumed..In January this year, the trial court found Raju guilty under Sections 120B (criminal conspiracy), 201 (causing disappearance of evidence), 193 (fabricating false evidence), 409 (criminal breach of trust) and 34 (common intention) of the Indian Penal Code. He was sentenced to three years imprisonment. .In his plea before the High Court, Raju argued that the sessions court was wrong in holding that no irreparable harm would be caused if his conviction was not stayed.Raju submitted that the refusal to suspend his conviction could directly affect his political future. He argued that although suspension of conviction is to be exercised sparingly, courts have recognised that such power may be invoked where failure to do so would result in irreversible injustice.Raju also questioned how the trial court assessed the evidence, highlighting what it described as inconsistencies in witness testimony..The prosecution vehemently opposed the petition, contending that suspension of Raju's conviction would set a bad precedent and embolden legislators who commit crimes. The State pointed out that as per the law laid down by the Supreme Court in various decisions, suspension of conviction is to be granted only when there are exceptional circumstances. A desire to contest an election cannot be treated as an exceptional circumstance warranting suspension of conviction, the State argued. .In the judgment passed today, the High Court concluded that when there is no grave error in the trial court's judgement, disqualification from contesting elections is not an exceptional enough circumstance to warrant suspension of conviction. "It is neither in the interest of law, nor in public interest to stay/suspend a conviction merely for the reason that the accused is an M.L.A or an M.P and that his future chances of contesting election is in jeopardy. Such jeopardy is nothing but a statutory legal consequence, emanating from the judgment of conviction, duly entered into by a competent Court, in accord with the due process of law," the Court said in its judgment dismissing Raju's plea. .Raju was represented by Senior Advocate P Vijayabhanu and advocates K Aravind Menon, Aaron Zacharias Benny, M Revikrishnan, PM Rafiq, Ajeesh K Sasi, Sruthy N Bhat, Sruthy KK and Sona Maria Biju.Additional Public Prosecutor P Narayanan and Senior Government Pleader Sajju S appeared for the State. .[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.