Kerala High Court Refuses To Appoint Special Public Prosecutor In Evidence Tampering Case Against MLA Antony Raju

“Considering the fact that there is nothing to show that the present Public Prosecutor cannot adequately handle the case, the trial has already been commenced and that there is a specific direction by the Supreme Court to complete the trial within one year, I am of the view that the request made by the petitioner for the appointment of a Special Public Prosecutor cannot be allowed.”

As per the submission of the Public Prosecutor, the trial has already started and 5 key witnesses of the prosecution side have already been examined.

The petitioner had urged that the case was highly sensational and generates extensive public interest and therefore a Special Public Prosecutor can be appointed as per the 2014 circular issued by the Additional Chief Secretary. He also pointed out that even though he filed a petition to add the offence under Section 409 (criminal breach of trust by public servant) in the case, it was not done by the Court or Assistant Public Prosecutor (APP) conducting the trial.

The High Court however said that not adding Section 409 offence to the case cannot be seen as suggesting that the Public Prosecutor could not handle the case properly. The Court said that the Magistrate while receiving the final report and taking cognizance was of the view that the offence under Section 409 was involved, he could have returned the final report with a direction to conduct further investigation. The Trial court also was empowered to order further investigation before the commencement of the trial. Further, the investigating officer is also free to conduct further investigation at any point. Therefore, the Court said that it could not accept the argument that offence under Section 409 of IPC was involved and the Public Prosecutor failed to appraise the same before the Court.

The Court also said that as per the 2014 guidelines, Special Public Prosecutor shall be appointed only if the present Public Prosecutor cannot adequately handle the case. The High Court said that there was nothing on record to show that the present Public Prosecutor could not handle the case.

Background

The issue is related to a drug seizure case of 1990 against an Australian national Andrew Salvatore, who was found to be in possession of charas in the pocket of his underwear. Raju was then a junior of the lawyer who was representing the Australian accused. The underwear worn by the Australian was seized as a material object. Subsequently, the Court allowed return of the personal belongings of the Australian accused. The underwear, which was a material object in the case, was also returned. It was collected by Raju and later returned to the Court.

The sessions court convicted the Australian accused under the Narcotic Drugs and Psychotropic Substances Act. However, in appeal, the Kerala High Court in its February 5, 1991 order acquitted the Australian national on the ground that the underwear was not of his size. 

Even though the High Court acquitted the accused, it observed that the possibility of tampering of evidence could not be ruled out and a vigilance inquiry was ordered. After much delay due to various reasons, a charge sheet was filed in 2006 arraying Raju and a court staff as accused in the case for the offences punishable under sections 120B,420,201,193 and 217 read with 34 of the Indian Penal Code. However, the trial in the case remained pending for several years.

In 2022, Raju approached the High Court seeking quashing of the proceedings on the ground that cognizance in the present case could not have been taken due to the bar created under Section 195(1)(b) of the Cr.P.C. 

The High Court on March 10, 2023 quashed the proceedings pending before the Magistrate Court and directed the High Court Registry to proceed against Raju as per procedure under Section 195 of Cr.P.C.

Against this order, Antony Raju approached the Supreme Court saying that High Court could not have directed the Registry to take steps under Section 195 Cr.P.C in proceedings that have already been quashed. Another person, one M.R. Ajayan also approached the Supreme Court against quashing of the proceedings. On November 20, 2024 the Supreme Court restored the case to the Magistrate Court and directed it to finish the trial within an year.

Counsel for the Petitioners: Advocates Ajit G. Anjarlekar, G. P. Shinod, Govind Padmanabhan, Gayathri S. B., Atul Mathews

Counsel for the Respondents: Advocate C. K. Suresh (Sr. PP)

Case No: WP(Crl.) 81/ 2025

Case Title: Anil K Emmanuel v State of Kerala and Others

Citation: 2025 LiveLaw (Ker) 206