No Material To Show Involvement Of Any Transnational Racket In Forced Gender Change Operations: Kerala High Court Declines CBI Inquiry

Justice Bechu Kurian Thomas observed that allegations of involvement of transnational racket or gang in doing forced gender change operations were vague and baseless.

“Bearing in mind the aforesaid statement of the son of the petitioner, which can act as a guide to the investigating officer, the allegation regarding a transnational racket involved in forced gender change operations made in the affidavit filed before the Supreme Court can only be treated as a vague and bald allegation, atleast as of now. No material has been collected to justify such an averment. The learned Senior Counsel had, in fact, fairly submitted that at no point in time had the petitioner made such an allegation but it was the State Government's affidavit that had referred to the existence of such a transnational racket.”

The petitioner, who is the father of a minor son alleged that the accused misrepresented themselves as the parents of his son and used his son's photograph to raise funds from crowdfunding platform Milaap for hormone replacement therapy. He alleged that the accused created a profile in the name of 'support-rosetta' and started collecting funds in son's name.

The petitioner filed a complaint against the accused alleging the commission of offences punishable under Sections 420 (cheating), 468 (forgery for cheating), and 471(using as a genuine forged document) of the Indian Penal Code, 1860, apart from Sections 66(c) and 66(d) (computer related offences) of the Information Technology Act, 2000.

Aggrieved by Police inaction, the petitioner approached the High Court seeking CBI investigation.

The petitioner referred to State government's affidavit before the Supreme Court as per which a transnational forced gender change gang is in existence. It was argued that scientific and specialized investigation was required to find out about monetary gains of accused.

Contrary to this, the Public Prosecutor submitted that the petitioner's son who has attained majority now submitted that he is a transgender female and wants to take hormones before attaining the age of 25 years. It was submitted that the accused started fundraising online based on the request of the petitioner's son.

The accused who was arrayed as respondent submitted that she was only helping the petitioner's son and has no objection to CBI inquiry. It was submitted that she was not part of any international racket indulging in forced hormone therapy.

The CBI submitted that there were no materials to show existence of any transnational racket or a gang.

The Court took note of the fact that the petitioner's son was a minor at the time of the alleged incident but has now attained majority and has ratified the actions of the accused. It took note of the submissions that the petitioner's son gave statement that the accused was only attempting to help him by crowdfunding. It also took note of the fact that the petitioner's son had made scathing allegations against his parents.

Referring to Transgender Persons (Protection of Rights) Act, 2019, the Court observed that the statute does not differentiate between minor and major and prohibits discrimination of a transgender by any person, including their parents. “Thus a transgender person, whether a minor or a major, has been protected by law from discrimination of any nature”, added the Court.

As such, the Court dismissed the petition and held that CBI investigation was not warranted.

It said, “Though an attempt was made to portray the incidents that led to the registration of the crime as one having transnational ramifications based upon the affidavit of the State Government filed in the Supreme Court, this Court is of the view that the circumstances do not persuade this Court to rely on the said averment to direct a CBI investigation, atleast from the materials collected so far.”

Counsel for Petitioner: Senior Advocate Anil Kuashik, Advocates G Keerthivas Giri, Lakshmi Das

Counsel for Respondents: Public Prosecutor M C Ashi, Advocates Sreelal Warrier,

Dr Farrukh Khan, Advocates Sohail Mohammed Ansary, Ameena.R, Poornima S.Nair

Citation: 2024 LiveLaw (Ker) 427

Case Title: Joy Varghese v State of Kerala

Case Number: WP(CRL.) NO. 661 OF 2023

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