Why shrunken underwear evidence may continue to haunt Kerala Transport Minister Antony Raju

Kerala State Transport Minister Antony Raju's woes may not be over even though the Kerala High Court on Friday quashed the proceedings in an underwear evidence tampering case against him. .This is because the High Court quashed the proceedings before the trial court only on technical grounds and left it open to the court or any competent authority to initiate action and pursue prosecution against Raju for falsifying evidence.The Court in fact one went one step further and directed the High Court's registry itself to initiate proceedings.The concluding sentence of the order called for expedient action especially in light of the fact that the offences were allegedly committed over three decades ago."The registry of this court is directed to take appropriate action in this regard under the relevant provisions of the Code of Criminal Procedure (CrPC) as referred above, without any delay by taking note of the fact that the offences were allegedly committed in the year 1990, and any further delay in the matter would defeat the entire purpose," the order said..The case originated 33 years ago, in April 1990, when an Australian man naed Andrew Salvatore Cervelli was arrested at the Thiruvananthapuram airport for allegedly smuggling 61.5 grams of charas by concealing it in his underwear. At the time, Antony Raju had not yet made his foray into serious politics but was a young lawyer practicing before courts in Kerala. Raju represented Cervelli first before the trial court which convicted and sentenced him to 10 years imprisonment. When he moved the High Court in appeal, the underwear in question was found to have been way too small to fit Cervelli, leading to his acquittal.A few years after Cervelli returned to his home country, based on information received from the Australian National Central Bureau, the investigating officer in the smuggling case approached the High Court seeking a probe to find out if there was any evidence tampering. An FIR was registered against Raju and a court clerk in 1994 and after 12 years, in 2006, the Assistant Commissioner of Police filed a charge sheet before the Magistrate Court alleging offences punishable under several sections of the Indian Penal Code (IPC)..One among these was Section 193 of the IPC which deals with the offence of giving or fabricating false evidence at any stage of a judicial proceeding. The punishment for the same involves both imprisonment and payment of fine. The interesting aspect about the offence under Section 193 is that unlike most other cognisable offences under the Indian Penal Code, courts cannot take cognisance of this offence on the basis of a police report.As per Section 195(1)(b) of the Code of Criminal Procedure (CrPC), no court can take cognisance of an offence punishable under Section 193 IPC, among others, "except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in wring in this behalf, or of some other Court to which that Court is subordinate".Since the underwear evidence was in the custody of the trial court when it was allegedly tampered with, it should have been the court in question that initiated the proceedings to look into the same. However, in this case, the trial court took cognisance on the basis of a police report. .It is only on this technical ground that earlier today Justice Ziyad Rahman AA quashed the Magistrate's order taking cognisance of the final report in the case as well as all proceedings pursuant to the said order.Notably, the FIR and final report that was filed in the case have not been quashed..In fact, Justice Rahman made it abundantly clear that nothing in his order would preclude the trial court concerned or any other competent authority from taking up the matter and pursuing the prosecution according to the procedure under Section 195(1)(b) CrPC.The single-judge highlighted that the allegations in the case hit at the very mechanism of justice dispensation and as such, must not be allowed to pass by without any rigorous follow-up."The materials placed before this Court reveal allegations which are of such nature and gravity that interfere with the judicial functions and thereby polluting the mechanism of administration of justice. Such acts are required to be dealt with strictly with all vigour, and this court expects a positive and effective follow-up action on this from the authorities concerned to ensure that a fair trial in accordance with the law takes place and the culprits are punished adequately", the order stated..The Court also directed the High Court's registry to initiate proceedings under Section 195(1)(b)..[Read Order]