vs achuthanandan list of dates

8/13/2019 Vs Achuthanandan List of Dates

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General, Judges and other constitutional functionaries etc., since

his co-brother (1 st accused) was named by victims in their earliest

statements u/s.161 Cr.P.C., thus arraying him as a suspect.

According to the FIR, the 2 nd accused Rauf helped 1 st accused

by making payments to the girls who were sexually exploited by him

so that his name was not to be mentioned by the girls to the police

in their statements.

If true, the High Court observed, the allegations of K.A. Rauf,

are very grave, serious, unusual and damaging which raise grave

concerns since, the very foundation of judicial system is shaken

and puts the entire legal fraternity in a very dark shade.

The Specific SIT findings of fraud are:-

i. Lakhs of rupees were paid to the victims by K.A. Rauf, Gopi

(driver of Rauf) one Shereef, a henchman of A1, at various

point of time to scuttle investigation and trial.

ii. The victims Rejula, Roslin, Bindu were tutored by Sh. C.M.

Rajan Advocate, defense counsel of PA Rehman, (NRI

businessmen) (A4), O Rajagopal, former Councilor (A12), T.P.


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(ii) Secondly, even after the findings of fraud, the unwillingness on

the part of the SIT to unearth crime fairly and truthfully by way of

a competent investigation.

(iii) Whether the Central Bureau of Investigation is empowered to

conduct fresh investigation when the SIT without taking consent

of the High Court in a court monitored matter, files a Police Report

before the Trial Court u/s.173 of the Code?

The petitioner submit that the High Court, with respect, wrongly

distinguished, the decision of this Honble Court in Disha vs.

State of Gujarat & Ors. 2011 (13) SCC 337, State of Punjab

Vs CBI, 2011 (9)


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SCC 182 which speaks of need and desirability of investigating

a matter which involved Ministers, Advocates, Police officials,

Political Leaders, Municipal Councilors by CBI on a view that

Justice would not be done to the case if the investigations

stays in the hands of the local police.

In the present case, it is not the involvement alone but a

categorical finding of fraud being perpetrated to scuttle

investigation and trial and yet, the local investigating team was

unwilling to go further to unearth truth.

The submission is that the above decisions along with Zahiras

case 2004(4) SCC 158 and Sahabuddin & Anr. Vs. Assam 2012 12

Scale 241 squarely applies in a matter which the High Court itself

observed that, if true, the allegations are very serious, unusual and

damaging to the Administration of Justice.

The petitioner submit that the above mentioned 4 findings of

fact which fully corroborates 2 nd accused disclosure u/s 164 Cr.PC.

This along with a spate of clear other positive findings easily

discernable from the police report speak of massive fraud being

perpetrated by the accused to interfere with administration of


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justice right from the statement of victims under 161 Cr.PC till the

very end.

It is well settled in law Fraud Vitiates all judicial acts

whether in rem or in personam judgment, decree or order

obtained by fraud has to be treated as nonest and nullity. Yet, the

SIT copiously quoted the statements of the victims, their deposition

in trial to discredit victims testimony in the present investigation for

a conclusion that there is no prosecutable evidence against the co-

accused who is the named Minister.

The unwillingness on the part of SIT to have a competent

investigation to unearth the crime is writ large in as much as while

monitoring, the, the petitioner filed an application drawing attention

of the High Court about the desirability of taking into custody the

records relating to the 1 st accused press conference dt.28.1.2011

wherein the co-accused confessed that 2 nd accused Rauf had

abused his official position as a Minister and made substantial

gains although he had never gave any undue favour to him. Despite

knowledge being a party, the SIT did not take into custody the

easily available records of the T.V. interview which would prove the


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unholy nexus between the duo. In the absence of records no

effective interrogation of the 1 st accused was possible who was

examined only once.

The money trail, either the sources, or the proceeds of the

crime, invested is not investigated and the SIT felt helplessness in

finding out the source of the dirty money deployed for illegal deeds.

In some cases, money trail was clear but SIT did not take it to

its logical conclusions. The 2 nd accused alleged that to extricate 1 st

accused from the array of accused/suspects, they had paid Rs. 32.5

lakhs to M/s Malabar Aqua Farms Ltd. a firm promoted by 1 st

accused who later became the Advocate General and on his request,

for settlement of its debt pending with SBI as a quid pro quo in 2

installments one direct deposit of Rs. 15 lakhs by Rauf alongwith

AGs clerk and Rs.17.5 lakhs by Kunhappu of M/s AM Motors.

There is clinching evidence to corroborate Raufs disclosure.

The quid pro- quo was to extricate A1 even as a suspect. It was

achieved by admittedly approving two affidavits filed in Supreme

Court, one by the State Police chief who was then supervising Crime

.282/97 and Head of then SIT, giving a clean chit to 1 st accused to


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pre-empt a CBI investigation by this Honble Court. The company

was neck deep in debt, not even generating any cash even to pay off

its mounting interest to Bank which accumulated to Rs. 81.11

lakhs ending on 31.3.1999. The SIT although seized the 7 th Annual

Report, a regulatory filings admissible in evidence u/s 74(2) of the

Evidence Act, R/w 159, 163 and 610 of the Companies Act, did not

verify this payment of Rs. 15 lakhs received the company before

31.3.1999 which corroborated the disclosure of a payment of 15

lakhs as first installment by Rauf. Despite this admissible

documentary evidence, the SIT adopted a safe course by accepting

ipse dixit of a person who allegedly received a profit of Rs. 8 lakhs

and 12 lakhs during 1998 and 1999 on a joint business agreement

from this sinking company who stated that he had deposited Rs.15

lakhs on 5.4.1999. With this finding, the SIT held that the

disclosure made by Rauf in this regard is false.

Thirdly, the SIT found one NP Buhari, the former husband

victim Rejula stated that he received Rs. 50,000/- from 1 st accused.

However, on 10.5.2011, i.e. on the eve of declaration of Assembly

results and change of Govt. etc., his retracted statement in 164


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Cr.PC was taken in aid to discard his direct evidence. Bhuris

statement is corroborated by the findings of the SIT with regard to

procured affidavits dt.25.9.1997 from the victim Rejula. This in

turn, corroborated the statements of 2 nd accused Rauf also. The

witness Bhurai graphically described how the affidavit of Rejula was

taken by Rauf on 25.9.1997- i.e. within 24 hours since Rejula had

spoken the name of 1 st accused in her statement dt. 24.9.1997

under 161 Cr.PC. As per the co-accused Rauf, immediately

thereafter Rejula was contacted and her affidavit was procured for

payment on 25.9.1997 to resile from her earlier 161 Cr.PC

statement. It is submitted that NP Buhari in his 161 Cr.PC

statement graphically described the events that took place on the

intervening night of 24.9.1997 and 25.9.1997. The SIT deliberately

or intentionally did not evaluate as they were unwilling to unearth

truth.

BACKGROUND FACTS

6.8.1997 One social organization by name Anweshi Womens

Counseling Centre filed a complaint that a Parlour


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was run as a brothel and a number of unsuspecting

women were seduced and supplied for other

persons for illicit sexual acts after accepting money

from these customers.

28.8.1997 Sreedevi, who was running the parlour was

arrested.

29.8.1997 A remand report clearly explained the role of

Sreedevi as a link between the bigwigs of the society

including 1 st accused P.K. Kunhalikutty and the

victims.

1.9.1997 An SIT was constituted. The ADGP who was

supervising the SIT became State Police Chief when

crime No. 59/2011 was registered.

3.9.1997 Victim Rejula was examined. One Abdulla, Khader

Kutty and PA Rehmamn (A4) was arrayed as

accused.

12.9.1997 One K. Baby was examined and one Kuttika, PK

Kunhalikutty, his driver Arvindan, Baby @ Queens


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Baby, Basheer, M. Khader and 2 unidentified others

made suspects in the case.

22.9.1997 Smt. Roslin and Smt. Bindu were examined and

Jomon and Joseph and Advocate Baijunath,

Advocate Moidu, a telephone engineer and another

unidentified others made suspects in the case.

24.9.1997 Smt. Rejeena was examined and Smt. Rejula was

further examined. Rejula stated that she was

persuaded to accompany Sreedevi alongwith Vimla

to a terraced double storied building near Shornur

Railway Station and had sex with Kunhalikutty at

the upper floor of the house alongwith Sreedevi. She

also revealed that after a month, before their trip to

Shornur, driver Arvindan of Kunhalikutty came and

asked Sreedevi to send Rejeena and Rejula to a

house near Calicut stadium. PK Kunhalikutty had

them one after the other in an old house near

stadium (Paragraph 9 & 10 & 12 of the Director


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General of Prosecution report Annexure P-3). Both

of them mentioned the name of PK Kunhalikutty.

25.9.1997 2 affidavits dt. 25.9.1997 were taken from Rejula

stating that her earlier statement to the effect that

she had indulged in sex with Kunhalikutty, TP

Dasan, (Ex. Corp. Councilor) O Rajagopal, (Ex.

Corp. Councilor), PA Rehman (NRI Businessmen),

Buhari former husband of Rejula describes in vivid

details how it was obtained in the intervening night

of 24.9.1997. Except Kunhalikutty all others were

made accused in crime No. 282/97. Submission is

the SIT did not deliberately or otherwise appreciate

the documentary evidence corroborating Rauf as

well as Buhari. True copies of the affidavit of Rejula

dt. 25.9.1997 is annexed as Annexure P-1 (Colly)

(Page No.

26.9.1997 Similarly, 2 affidavits were taken from Rejeena in

similar circumstances. True copies of affidavit of


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Rejeena dt. 26.9.1997 are annexed as Annexure P-

2 (Colly) .

Sep.1997 The Director General of Prosecution submitted a

report about the shoddy investigation by the SIT. A

true copy of the report dt. Sep. 1997 submitted by

the DGP is annexed as Annexure P-3 . (Page No.

30.7.1998 The Anweshi Women Counseling Centre in OP No.

18484 of 97 sought investigation by CBI and the

same was dismissed by Ld. Single Judge, justice K.

Narayanan Kurup against whom allegations were

made in crime 59/2011.

21.8.1998 Anweshi filed a WA No. 1717 of 1998 which was

dismissed.

28.8.1998 Another WA 1630 of 1998 filed by one Kolakadan

Moosa Haji who was allegedly acting on behalf of 1 st

accused against the same order was also dismissed.

27.10.1998 Anweshi filed SLP (Crl.) No. 3725 of 1998.


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23.11.1998 A true copy of the legal opinion of the formerAdvocate General opining that no offence has been

made out against Kunhalikutty and therefore he

need not be arrayed as accused in crime No.

282/97 is annexed as Annexure P-4 . (Page No.

2.12.1998 Investigation concluded and 16 persons were

arrayed as accused u/s 366, 109, 120(b) R/w 34

IPC and S.3 (1) (5) (a) (c) (d) of the ITA (P) Act. All 9

suspects including Kunhalikutty 1 st accused herein

were absolved from the charges.

14.12.1998 This Honble Court in SLP (Crl.) No. 3725 of 1998

directed the State and the Police to file the affidavits

to satisfy the court that a full investigation has

been carried out and that no one, who ought to

have been investigated, has been left out only


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because of the position he occupies or the influence

he holds.

4.1.1999 The DIG, Mr. Sekharan filed an affidavit to the effect

that a full investigation had been carried out and

the no one who would have been investigated had

been left out only because of the position he

occupies or the influence he held. A true copy of the

affidavit dt. 4.1.1999 in SLP Crl.) No. 3725 of 1998

by DIG, Head of SIT is annexed as Annexure P-5.

(Page No.

18.1.1999 The IG, Mr. Jacob Punnose, who became the Police

Chief of the State (since retired) was supervising the

investigation, also filed similar affidavit. A true copy

of the affidavit dt. 18.1.1999 in SLP (Crl.) No. 3725

of 1998 by IG of Police is annexed as Annexure P-6.

(Page No.


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8.2.1999 This Honble Court ordered further investigation if

found necessary.

2.6.1999 Mr. George, North AC who was the IO, filed an Add.

Police report under 173(8) stated that no evidence

was collected during further investigation.

Subsequently, a Criminal Revision against the same

was dismissed by the Sessions court and by the

High court and the SLP (Crl.) No. 8331 of 2003

against the same was also dismissed.

13.10.2003 The SLP (Crl.) No. 3725 of 1998 was dismissed, a

copy of which is annexed as Annexure P-7. (Page

No.

25.1.2005 Certain Writ Petition filed in public interest namely

WP Nos. 33821, 34015 and 34351 of 2004 toimplicate 1 st accused on the basis of disclosure

made by Smt. Rejeena before the media was

dismissed.


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6.10.2005 Charges were framed. In the charge framed, by the

Honble Court the name of PK Kunhalikutty was

mentioned 7 times. A true copy of charge sheet

dated 6.10.2005 is annexed as Annexure P-8 . (Page

No.

14.10.2005 The Special prosecutor filed a petition to remove the

name of Kunhalikutty from the charge.

28.11.2005 Several petitions namely WP No. 30170 of 2005,

31108/2005 for changing the prosecutor by Ajitha

and the present petitioner, Crl. MC No. 3662/2005

filed by 9 th accused James Joseph seeking an in

camera trials, Crl.MC No. 3732 of 2005 seeking

transfer of trial were all heard by Honble Justice K.

Thankappan who vide a common judgment allowed

all petitions and transferred the case to Principle

Asst. Sessions court headed by Judge, Sathyan.


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all the accused in SC No. 124/2002 is annexed as

Annexure P-10 . (Page No.

2006 K. Ajitha of Anweshi Centre challenged the

judgment and order in CRP No. 1000/2006 dt.

12.1.2006 of the Trial Court.

19.1.2007 K. Ajitha of Anweshi Centre filed an affidavit before

the High court stating that she had sent a letter

expressing her apprehension about the case being

heard by the learned single judge and requested

that the case may be transferred to another bench.

19.1.2007 Taking objection to the affidavit, Ld. Single Judge

issued show cause notice to both the petitioner as

well as her counsel as to why contempt proceedings

should not be taken against them under the

Contempt of Courts Act, 1971.

22.1.2007 The revision petition filed by the K. Ajitha of

Anweshi Centre challenging the order or acquittal

being Crl. R.P. No. 1000 of 2006 (D). The Centres


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counsel withdrew her Vakalatnama as contempt

notice was issued to her. An adjournment was

denied and the matter was reserved.

15.2.2007 K. Ajitha filed SLP was allowed on 28.9.2007 and

directed the High court to decide on merits.

16.12.2007 The High court acquitted all the accused of all

charged on the ground that all the witnesses

prosecution except K. Ajitha had turned hostile.

15.4.2008 SLP (Crl.) No. 7626 of 2007 filed against the above

was also dismissed.

RELEVANT DATES LEADING TO REGISTRATION OF CRIME NO.59/2011

29.1.2011 The Asst. Commr. of Police submitted a report

pursuant to a disclosure made by K.A. Rauf. A true

copy of the report dt. 29.1.2011 of the Asst. Commr.

is annexed as Annexure P-11. (Page No.


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30.1.2011 FIR registered Crime No.59/2011 dated 30-1-2011.

A true copy of the FIR No. 59/2011 dated 30.1.2011

is marked as Annexure P-12 (Page No.

3.2.2011 SIT constituted.

23.2.2011 &

25.2.2011 Statement of Rauf u/s 164 of Cr. P.C. recorded.Without adverting to the contents of the same, a

true copy of the 164 statement dated 23.2.2011 &

25.2.2011 is marked as Annexure P-13 (Pg. No.

Aug, 2011 &

27.9.2011 In the WP No. 24114 of 2011 filed by the petitioner,

the High Court decided to monitor the investigation

for the present. A true copy of the Writ Petition No.

24114 of 2011 is marked as Annexure P-14 (Page

No. ______ and a true copy of the order dated

27.9.2011 in WP No. 24114 of 2011 is annexed as

Annexure P-15 (Page No.

20.11.2011 The Petitioner filed an IA to call for action taken

reports in which attention of the Honble court was


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drawn to a live press conference of the 1 st accused

on 28.1.2011 i.e. a day before the sting operation

conducted by M/s India Vision was aired and the

necessity in taking into custody by SIT the

electronic materials for questioning the accused. A

true copy of the IA No. 18672 of 2011 in WP No.

24114 of 2011 dt. 20.11.2011 is annexed as

Annexure P-16. (Page No.

2011 On various dates statement of witnesses were taken

and certain documents seized. A true copy of

statement of K. Rejeena, dt. 5.2.2011, 25.2.2011,

24.10.2011 & 6.1.2012 are annexed as Annexure

P-17 (Colly). (Page No.

True copy of statement of Rejula, dt. 7.3.2011 is

annexed as Annexure P-18. (Page No.

True copy of statement of NP Buhari, dt. 9.4.2011,

10.5.2011, u/s 164 Cr.PC & 29.12.2011 are

annexed as Annexure P-19 (Colly) . (Page No.


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True copy of statement of T.J. Prasad dated

30.5.2011 is annexed as Annexure P-20. (Page No.

True copy of statement of P. Shaiju husband of

Rejula, dt.22.2.2011, Deposition u/s 164 Cr.PC

dt.11.5.2011 &

further Statement, dt.20.5.2011 are annexed as

Annexure P-21 (Colly).

(Page No.

True copy of statement of Chellary Shereef,

dt.14.11.2011 & further statement dt. 4.12.2011

are annexed as Annexure P-22 (Colly). (Page No.

True copy of statement of Kunhu Baby @ Baby, dt.

5.3.2011, 6.1.2011, 26.5.2011 (164 Cr.PC) &

6.1.2012 are annexed as Annexure P-23 (Colly).

(Page No.

True copy of statement of K. Bindu, dt. 9.3.2011 &

further Statement dt. 3.11.2011 are annexed as

Annexure P-24 (Colly) (Page No.


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True copy of statement of Smt. P. Roslin, dt.

9.3.2011 & further Statement dt. 3.10.2011 are

annexed as Annexure P-25 (Colly). (Page No.

True copy of statement of K. Pramod Kumar, dt.

11.2.2011 & further statement dt. 24.10.2011 are


True copy of statement of Advocate Subash Bendict

dt. 2.6.2011 is annexed as Annexure P-27. (Page

No.

True copy of statement of Sri P.I. Mathew Vinod dt.

10.5.2011 & further statement dt. 25.5.2011 are


True translated statement of M.K. Damodaran,

dt.15.10.2011 is annexed as Annexure P-29. (Page

No. 337-341)


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True copy of statement of Sri K.N. Prabhakaran, dt.

15.10.2011 (Financier) is annexed as Annexure P-

30. (Page No.342-343)

True copy of relevant Extract from 7 th Annual

Report, M/s Malabar Aqua Farms Ltd. 1998-99 is

annexed as Annexure P31. (Page No.344-345)

True copy of relevant extract from balance Sheet

and audited accounts for the year ended on

31.3.2004 of M/s Malabar Aqua Farms Ltd. is

annexed as Annexure P-32. (Page No.346-357)

22.12.2011 The High Court directed to keep the action taken

report which was filed in the meantime in a sealed

cover in safe custody.

28.1.2012 The SIT completed the investigation and filed a

police report in the High Court. However, the same

was filed in the trial court without any notice to the

petitioner or any formal order from the High Court.


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30.1.2012 Investigation completed and CD file and final report

were submitted to the court for keeping it on safe

custody. Direct to list the matter after 4 weeks.

6.3.2012 Petitioners counsel sought for copy of the report.

Court directed them to file a proper application.

Posted the case on 27.3.2012.12.3.2012 The petitioner filed an IA No. 4332 of 2012 in WP

No. 24114 of 2011 to issue a copy of the report

submitted by the SIT on 22.12.2011.

27.3.2012 IA No.4332/2012 filed by petitioner for getting

copies of final report, statement of witnesses under

section 161, Mahazars and other documents

accompanying report. Counter filed. IA heard and

posted for orders.

02.5.2012 IA NO.4332/2012 was dismissed by a detailed

order. Court recorded the fact of completion of the

investigation and found that the petitioner is not

entitled to get copies from the court. It is also


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directed that parties are at liberty to approach the

jurisdiction Magistrate. Against the order dated

02.5.2012 in IA 4332/2012 SLP 17885/2012 was

filed.

18.5.2012 As against, in the SLP 17885 of 2012, was filed.

11.6.2012 SIT filed final report in crime No. 59/11 of

Kozhikode Town Police Station.

05.7.2012 Notice issued in SLP. No interim order. SLP still

pending last posted on 22.3.2012 and further

adjourned to 12.8.2013. A true copy of the order dt.

5.7.2013 is annexed as Annexure P-33 (Page No.

23.8.2013 SLP was allowed to be withdrawn since the

petitioner was provided with all copies sought for. A

true copy of the order dt. 23.8.2013 is annexed as

Annexure P-34 (Page No.

30.8.2013 The Writ Petition seeking CBI investigation

dismissed. The High Court held that:


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Any aggrieved person having locus standi can

always point out the lacuna in the

investigation and seek appropriate remedy,

including direction for further investigation,

from the Magistrate's Court, which is the

competent authority under the Code. In the

light of above discussion and aforesaid

reasons, we are of the opinion, above public

interest litigation deserves to be dismissed and

accordingly the same is dismissed.

8.10.2013 Hence the Special Leave Petition.

ADVOCATE FOR THE PETITIONER: R. SATHISH

vs achuthanandan list of dates

Documents