With a view to put an end to former ISRO scientist S. Nambi Narayanan’s long journey for justice, the Supreme Court bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar on Wednesday considered the tendering of compensation to the tune of Rs. 75 lakhs for malicious prosecution in the fake ISRO espionage case of 1994. The bench also deliberated on requiring the state to carry out inquiry into the role of Kerala state police officials involved in the prosecution and investigation.
Dr. Narayanan was arrested by the Kerala Police on November 30, 1994 on espionage allegations under sections 3, 4 and 5 of the Indian Official Secrets Act of 1923, registered illegally without the Central government’s sanction. He was remanded to police custody and thereupon to judicial custody for 50 days. While in custody, he was allegedly tortured by officials of Kerala Police and the Intelligence Bureau of India and statements were allegedly obtained along suggested lines under duress. The story fabricated by the police was that he had passed on rocket technology and cryogenic technology to some other countries for illegal gratification.
On transfer of investigation to the CBI, the allegations were found to be false. The finding of the CBI was upheld by the Supreme Court in 1998 in K. Chandrasekhar v. State of Kerala.
On Wednesday, Senior Counsel V. Giri, appearing on behalf of the present petitioner, pressed for initiation of criminal proceedings against the respondent officials, drawing the attention of the bench to the observations of the apex court in K. Chandrasekhar- “...On a careful perusal of the police report submitted by the C.B.I. on completion of the investigation (which runs through more than 100 pages) we find that it has made a detailed investigation from all possible angles before drawing the conclusion that the allegations of espionage did not stand proved and were found to be false...”
“Did the Supreme Court direct departmental inquiry against the officials?”, asked the Chief Justice. “No...the CBI had recommended that the state government may take necessary action”, responded Mr. Giri.
“Since there was no recommendation for any criminal action in the 1998 judgment, we can direct compensation to be paid by persons involved in the investigation...we will require the state to recover the compensation from their properties...the compensation for the loss of reputation shall be determined in accordance with the status of the petitioner...it may be 50 lakhs or even 60 lakhs...”, opined the Chief Justice.
“The NHRC had in 2001 awarded interim compensation of Rs. 10 lakhs...but we are interested in seeing the truth come out...”, persisted Mr. Giri. “The truth has come out...we shall clarify...the reputation stands restored...”, asserted the Chief Justice.
ASG Vikramjit Banerjee, representing the CBI, backed the prayer for Criminal proceedings, “we agree that criminal proceedings should be initiated...the CBI has concluded that indiscriminate arrests of ISRO scientists were ordered by the first respondent herein (former Kerala DGP Siby Mathews)...”
Submitting that criminal action may be initiated based on further investigation under section 173(8), Cr. P. C. even after a span of time, he relied on the judgment in Mahima @ Mahimananda Mishra .
“The 1998 judgment only uses the term ‘malafide’ and that the petitioner was taken into custody illegally...in cases of malicious prosecution, the appropriate action would be to file a civil suit...everyone cannot move the court seeking criminal proceedings as relief...keeping in view the status of the petitioner and the loss of reputation and career, we can evaluate the public law remedy at Rs. 75 lakhs...”, remarked Chief Justice Misra.
“At best, this is a case of dereliction of duty by the officers”, added Justice Khanwilkar.
“There was deliberate targeting as well as custodial torture...the state is vicariously liable...”, *both the ASG and Mr. Giri sought to submit.
“We will ensure that the officers involved in the investigation pay compensation proportionally...we will say that there may be no contest as to quantum or liability”, assured the Chief Justice.
“The compensation shall be made paid by the state...the state shall also enquire as to which officers are guilty and what is the proportionality...the law in India is of malafide prosecution and public law remedy...with malafide prosecution, the vicarious liability of the state comes into play...we will not direct criminal action based on your submissions...”, repeated Chief Justice Misra at a later stage.
“If you push this argument, the respondent may be able to show a bonafide discharge of official duty, which may in turn affect the compensation”, added Justice Chandrachud to the ASG.
When Mr. Banerjee persisted, the Chief Justice admonished, “are you trying to help the man or procure Criminal prosecution? Your cause seems to be something else”
“His (the CBI’s) cause is extraneous, I can show that”, intervened Senior Counsel B. P. Patil, representing the respondent no. 1.
Placing reliance on the enumeration of facts in the 1998 judgment, Mr. Patil advanced, “It was on my recommendation that the investigation was transferred to the CBI...after almost one and a half years when the CBI submitted the closure report, the state government had refused to accept the same...the state had directed further investigation of its own accord...”
“The closure report had been accepted by the Magistrate and the accused had been discharged...the state came in subsequently...”, interjected Mr. Giri.
“A month and a half after the acceptance of the closure report, an undated letter containing certain suggestions was sent...we do not know who the author of the letter was...but it was not I who recommended a further investigation by the state police officials...”, proceeded Mr. Patil.
“We shall not transverse beyond the facts of the 1998 judgment...We are not interested in how the state took the decision...that the state took the decision has made it vicariously liable to pay compensation under the doctrine of public remedy...then the state shall inquire into the role of whoever may be responsible...why are you pleading not guilty?”, observed the CJ.
“I am not disputing the 1998 judgment...but any inquiry, as desired by the petitioner, shall be very unfair to me”, pleaded Mr. Patil.
“No disciplinary action can be initiated now under service rules”, remarked the CJ, proceeding to adjourn the matter for Thursday.
Mr. Patil, on Wednesday, also advanced, “The 1998 judgment does not deal with the conduct of the officers...the petitioner’s version is not the correct representation of the facts...he has alleged that his career has been affected, while he had opted for Voluntary Retirement on November 1, 1994...post the arrest of one Mariam Rasheeda under section 14 of the Foreigners’ Act, 1946, he was trying to leave the country and hence, was taken into custody...the custody was only for 1 day and not 50 days...there is no allegation of torture against me...”.
The appeal is filed against the judgment of Kerala High Court division bench, which set aside a single judge judgment by which an order of the Kerala Government (G.O. (Rt) No. 1923/2011/Home dated 29.06.2011) was quashed.
By issuing the above order, the Kerala Government decided not to take any action against the above named police officers.
Nambi Narayanan, while functioning as scientist at the Indian Space Research Organisation, was arrested on November 30, 1994, alleging espionage. Later, the investigation was transferred to the CBI.
The central agency, after investigation, holding that the case instituted against Narayanan was false, filed its report recommending closure of the case. The chief judicial magistrate accepted the closure report.
In the closure report, the CBI spelt out various serious lapses on the part of the earlier investigation team and itemised such lapses in respect of each of the officer and recommended action against the said officers. The Kerala Government then issued a notification dated June 27, 1996, and directed further investigation in the case by the first investigation team.
This action of the state was challenged by Narayanan before Kerala High Court, which had upheld the notification, consequent to which Narayanan approached the Supreme Court. The apex court allowed the criminal appeal (492/1997), vide judgment dated 29-04-1998, and quashed the notification.
The state government issued an order for closing the case. The order was challenged by Nambi Narayanan before Kerala High Court and a single judge had, allowed the petition and directed the state to take action against the three investigating officers and complete the proceedings within three months.
The above order was challenged by Siby Mathew, head of the first investigation team, before the division bench, which quashed the single bench order.