SYNOPSIS & LIST OF DATES The petitioner, sought a direction to hand over the local investigation of Crime No.

59/2011 u/s. 120 (B), 193, 214, 465, 468 read with S.34 of IPC of Town P. S., Kozhikode to the CBI. Pending proceedings, the High Court felt the necessity of monitoring the case. The Back ground facts are, pursuant to a complaint filed by Smt Ajitha of Anweshi Womens Counseling Centre that a Parlour at Calicut was being carried on as a brothel and a number of poor unsuspecting girls were seduced and supplied for other persons for illicit sexual trade after accepting money from them, a crime No. 282/97, infamously called Ice Cream Parlour case was registered. The present proceedings relates to crime No.59/2011

registered on the basis of a disclosure by one Rauf (2nd accused) who made voluntary, self incriminating and confessional statement under 164 Cr.PC in which he graphically narrated the attempts made by him and his co-brother P.K. Kunhalikutty (1st accused) to subvert justice by successfully jettisoning the trial in crime No. 282/97 and also the High Court by influencing the Advocate

General, Judges and other constitutional functionaries etc., since his co-brother (1st 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 2nd accused Rauf helped 1st 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.

Dasan and they accepted money for deposing in the court in accordance with what was taught by the counsel. iii. Soon after the trial was over, the victims were sent abroad for employment in London Crek Hotel at Dubai.
iv. Self serving affidavits were procured from victims Rejeena and Rejula at the earliest opportunity for assurance that they wouldnt turn around. Pg. 100: The petitioner submit that the above SIT findings is to be read alongwith the direction given in the legal opinion dt. 23.11.1998 of the then Ld. Advocate General to the investigating officer that the P.K. Kunhalikutty (1st accused herein) need not be arrayed as an accused in the case viz crime No. 282/97. Petitioner further submit that in crime No, 282/97, it was claimed that 200 witnesses were interrogated, it is surprising that Rauf, co-accused herein was not even called for questioning. The question is: (i) Whether the alleged involvement of important functionaries of the State and judiciary by itself even if it is true as observed by the High Court, is not a consideration to justify an investigation by the CBI especially when the investigation by SIT in terms found fraud perpetrated in the earlier trial resulting in the acquittal of all the accused and exclusion of suspects.

(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)

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 2nd 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

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 coaccused 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 1st accused press conference dt.28.1.2011 wherein the co-accused confessed that 2nd 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

unholy nexus between the duo.

In the absence of records no

effective interrogation of the 1st 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 2nd accused alleged that to extricate 1st 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 1st 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 1st accused to

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 7th 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 1st 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

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 2nd 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 1st 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

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, arrested. 29.8.1997 A remand report clearly explained the role of Sreedevi as a link between the bigwigs of the society including 1st 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 who was running the parlour was

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

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

Rejeena dt. 26.9.1997 are annexed as Annexure P2 (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 1st accused against the same order was also dismissed.

27.10.1998

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

23.11.1998

A true copy of the legal opinion of the former Advocate 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 1st 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

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.

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 to implicate 1st accused on the basis of disclosure made by Smt. Rejeena before the media was dismissed.

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 9th 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.

4.12.2005

The State Government appointed a new Special prosecutor.

11.1.2006

The petitioner filed WP No. 927/2006 to declare: i. The trial in SC No.124/2002 as illegal and perfunctory. ii. Direct removal of S. P.P as he is an in experienced person. iii. iv. To direct CBI investigation. To order re-trial of the case with electronic audio visual recording. A true copy of the judgment and order dated 11.1.2006 dismissing the WP No. 927/2006 is annexed as Annexure P-9 (Page No.

12.1.2006

All the victims/witness who were found by the present SIT in crime No. 59/2011 as won over, tutored on eve of trial turned hostile. A true copy of the judgment and order dated 12.1.2006 acquitting

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

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.

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 23.2.2011 & 25.2.2011

SIT constituted.

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

drawn to a live press conference of the 1st 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.

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.

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 annexed as Annexure P-26 (Colly). (Page No. 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 annexed as Annexure P-28 (Colly). (Page No.

True translated statement of M.K. Damodaran, dt.15.10.2011 is annexed as Annexure P-29. (Page No. 337-341)

True copy of statement of Sri K.N. Prabhakaran, dt. 15.10.2011 (Financier) is annexed as Annexure P30. (Page No.342-343) True copy of relevant Extract from 7th 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.

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

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 11.6.2012 As against, in the SLP 17885 of 2012, was filed. 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:

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