Kerala High Court Reserves Verdict In Ex-MLA Antony Raju's Plea Against Order Refusing To Quash Conviction In Evidence Tampering Case

The Kerala High Court on Friday (March 6) reserved its verdict in the plea preferred by former MLA Antony Raju seeking to set aside the order of the District and Sessions Court, Thiruvananthapuram that rejected his application to quash his conviction in the Evidence Tampering case.

Justice C. Jayachandran today heard detailed arguments adduced on behalf of Senior Advocate P. Vijayabhanu, who appeared on behalf of Raju. Advocate Sajju S., Senior Public Prosecutor, appeared on behalf of the State. Journalist M.R. Ajayan filed an impleading petition and opposed the plea. 

The prosecution case was that Andrew Salvatore, who is an Australian citizen, was caught with narcotics hidden in a pocket of his underwear during frisking at the Thiruvananthapuram Airport while on his way to Mumbai in April, 1990. The personal belongings including the underwear and other articles seized by the police from Salvatore which were kept in the safe custody of the Judicial Magistrate Court, Thiruvananthapuram was later released by the first accused court clerk to second accused Antony Raju, who was the junior advocate to Salvatore. This underwear was returned after tampering, leading to Salvatore being acquitted since the underwear was too small.

The senior counsel appearing for Raju pointed out that the petition to release one set of evidence, which also contained a pair of underwear, was filed by Salvator's uncle. Subsequent to an order of the Magistrate, the underwear, which is alleged to have been tampered, was wrongly released. As a junior lawyer, Raju was not aware of the same even though the prosecution alleged that it was clandestinely accessed. He told the Court that the wrong underwear released was returned upon the direction of the Magistrate. 

"Cannot say that. Party can say. Lawyer cannot say. Suppose it is received by the party, party can say but lawyer cannot say, whether he is junior or senior," the Court orally remarked.

"Who filed that petition? My case is that it was filed by the uncle of the accused. To release the properties. It is counter signed by my senior, not by me. I don't know the contents. I was asked to go with him and fetch it. That is the role and knowledge," the Senior Counsel added.

"Was your vakalath there?," Justice Jayachandran inquired.

"With other, many junior lawyers. Not senior engagement for me. My sign was also there like other juniors in the office," Sr. Advocate Vijayabhanu replied.

Hearing the submission, the Court turned to the prosecution and quizzed:

"Prosecution, do you have a case that this particular junior lawyer had got any acquaintance with the accused? Specifically? Whatever he has acted is only on behalf of the senior. And why haven't you proceeded...What is the motive for the A1 and A2 to collude? That act should stem from some motive. There is no evidence or case like that. My point is when the presumption is that if he has acted on behalf of the instruction, why you have not made the senior an accused if that is so?...There should be a special case as to why this particular junior has gone overboard to help the accused, which should stem from a motive. Either he should have a special interest based on some interest for money or else he has a personal interest on the accused...There should have been some special connection with the client as a junior, so he can do without senior knowing. When prosecution does not have a case like that...Will it amount to criminal intention? Can it be mens rea? Unless you canvass a special case."

The prosecution replied that the senior is no more but the Court pointed out that he was there at the time of initiation of the criminal proceedings. Raju's counsel told that the senior was questioned as well. 

The Court further orally observed:

"Only the physical act has been proved...No doubt someone has done the mischief. And you can even say there is nothing wrong in pinpointing A1. But then, A2 is a lawyer attached to that office. You have no case that he has a special interest in the accused. You have no case that he has received some money based on that...Essentially, these thondi numbers are all within the knowledge of the Court, not for the lawyer. Assuming in the case of a junior lawyer, he may not unless he has received special knowledge to receive it or take it...Especially when the other thing contains an underwear also. There is an underwear mentioned in the thondi item you have directed to be released. This is also along with that. Very difficult to find a guilt in the touchstone of a criminal liability."

Referring to the cross-examination of the investigating officer, the senior counsel argued that the investigating officer had categorically deposed that he was not aware of who, where and when the underwear was tampered. If that be the case, Raju ought not to have been implicated, it was contended.

"At best, this is a case of circumstantial evidence. At best. Is the chain complete? Just because he took and returned it, can it be said that he tampered it?," Justice Jayachandran asked.

Raju's counsel next brought the attention of the court to a letter sent by Interpol to Kerala Police, wherein it was conveyed that Salvatore had apparently conveyed to his co-accused in another case how he was acquitted. According to the counsel, in the letter, it was specifically stated that a court clerk switched the underwear. Even though such a communication was received, the same not investigated properly.

He then referred to an earlier final report filed in the evidence tampering case where it was concluded that there was no evidence. Subsequently, another final report was filed but there was nothing to show why this was differing from the earlier one, it was contended.

Other arguments were also tended by Raju's counsel to canvass that he was innocent of the allegations. After hearing him, the Court turned to the prosecution and asked again:

"Makes my query all the more relevant as to why you have not proceeded against the main lawyer instead of the junior. If your case is that it was an attempt to rescue him from criminal responsibility, pursuant to a conspiracy by the uncle of the accused, the lawyer concerned and the court staff, A1. Then certainly you should have gone against the main lawyer. Only for the reason that he is the person who received it and he is the person who returned it. And in the absence of any other allegation, we cannot say that he has a guilty intention...So the main point you have taken stock of is the receipt of the article by the particular accused?"

The prosecutor submitted that a detailed statement has been filed opposing the plea.

Background

Raju was arrayed as the second accused in a 2014 crime for having committed the offences under Sections 120B, 420, 201, 193 and 217 read with Section 34 of the Indian Penal Code.

The prosecution case was that Raju entered into a conspiracy with the 1st accused, the Clerk in charge of the property section of the Judicial Second Class Magistrate, Thiruvananthapuram with the intention of tampering with the evidence in a NDPS case so as to secure the acquittal of an Australian national.

Raju, who was the defence counsel for the Australian man, was pronounced guilty by the Judicial First Class Magistrate -I Nedumangad. He was sentenced to undergo simple imprisonment for a term of 6 months for the offence under Section 120B; 3 years with Rs.10,000/- fine for the offence under Section 201 r/w Section 34 for 3 months; 3 years for the offence under Section 193 r/w Section 34; 2 years for the offence under Section 465 r/w Section 34. The sentences were to run concurrently.

Subsequently, he moved the Sessions Court challenging the conviction. Though the Sessions Court suspended the execution of the sentence, it dismissed his application to quash the conviction. Aggrieved, he has come before the High Court challenging the dismissal.

Raju then moved the High Court seeking to set aside the order of the District and Sessions Court, Thiruvananthapuram that rejected his application to quash his conviction in the Evidence Tampering case.

According to Raju, the precedents in law point that in cases where the ramification of keeping the conviction alive during pendency of appeal is irreconcilable, the appellate court can suspend conviction. The present case, where a candidate is barred from contesting in an election because of a conviction that is challenged in appeal, constitutes an irreversible injury that cannot be monetarily compensation.

He had thus prayed for setting aside of the Sessions Court's order and to allow his application for suspending the conviction.

The petition is moved by Senior Advocate P. Vijaya Bhanu, Advocates Aaron Zacharias Benny, M. Revikrshnan, P.M. Rafiq, Ajeesh K. Sasi, Sruthy N. Bhat, Sruthy K.K., K. Aravind Menon, Sona Maria Biju

Case No: Crl.M.C. No. 1627/2026

Case Title: Antony Raju v. State of Kerala