Kerala High Court Dismisses MLA Ganesh Kumar's Plea To Quash Case For Alleged Conspiracy Against Deceased Former CM Oommen Chandy

The Kerala High Court on Friday dismissed the plea filed by MLA K.B. Ganesh Kumar seeking to quash the case against him in connection with alleged conspiracy involved in naming late Congress leader and former Chief Minister of the State, Oommen Chandy, in the solar sexual assault case.

The case is pending before court of Judicial First Class Magistrate (JFCM) at Kottarakkara,

"Serious allegations are raised against the petitioner who is a Member of the Legislative Assembly by the 2nd respondent in which conspiracy is also alleged stating that the petitioner hatched a conspiracy with the 1st accused to implicate the former Chief Minister of Kerala Sri.Oommen Chandi. The former Chief Minister has passed away. Such an allegation should not be in the air because his soul will not forgive the same. The continuation of this case is necessary not only for the soul of the former Chief Minister and his bereaved family, but also to prove the integrity of the petitioner too, Justice P.V. Kunhikrishnan observed.

The bench added that if such an allegation against the petitioner is incorrect, he can take appropriate steps for malicious prosecution against the 2nd respondent/ complainant.

"Therefore, I am of the opinion that this case is to be proceeded and should arrive at a logical conclusion for the interest of the soul of the former Chief Minister and if the allegations are wrong, it will prove the integrity of the petitioner, who is a Member of the Legislative Assembly, a known politician."

Factual Background

The victim, who is also the 1st accused in the multi-crore solar panel scam, had accused several Congress leaders of the State, including former CM and late Congress Leader Oommen Chandy, MP Hibi Eden, AICC General Secretary K.C. Venugopal, and others, of sexually exploiting her in the year 2012. 

Congress leader Adv Sudheer Jacob had filed a private complaint before the JFCM Court, Kottarakkara, alleging conspiracy to name Chandy in the solar sexual assault case, and another alleging offences punishable under Sections 120B, 192, 193, 182, 469, 471 r/w Section 34 IPC against the petitioner.

The complainant averred that the 1st accused had written a letter, which was handed over to Advocate Phenny Balakrishnan, while in jail. The complainant submitted that the Superintendent of jail, Viswanatha Kurup, was also examined, and that the latter deposed before the Commission of Inquiry that had been set up to inquire into the Solar Scam, that the letter comprised only 21 pages. It was added that the 1st accused had also sent a complaint to Additional Chief Judicial Magistrate, Ernakulam, which was in turn forwarded to the Station House Officer, Ernakulam North Police Station for investigation, and which did not contain any allegation against anybody. 

The complainant averred that the letter produced before the Commission subsequently, however had 25 pages, and also contained allegations against high dignitaries of sexually harassing the 1st accused and taking money from her. This was accepted by the Commission in evidence. 

While so, Adv. Balakrishnan disclosed in a press conference that the the letter produced by the 1st accused before the Commission of Inquiry was not the original letter, but was a false document, that had been fabricated at the instance of the 2nd accused, who is the present petitioner. 

The complainant alleged that the petitioner and the 1st accused had hatched a conspiracy to implicate the former Chief Minister and the other leaders, and that the Commission had wholly relied on this fabricated false document, and submitted certain recommendations to the Government in this regard. 

 The Magistrate took cognizance of the same. It is on being aggrieved by the same that the present plea has been filed seeking quashment of the proceedigs. 

It was submitted by the counsel on behalf of the petitioner that even if the entire allegations in the private complaint are accepted in toto, no offence could be made out. It was submitted that, for taking cognizance of offences under Section 193 and 182, there is a bar under Section 195 Cr.P.C., and the Magistrate had accordingly, erred in taking cognizance of the offence. The counsel averred that the complainant's case was that the 1st accused had forged her own letter making it a 25 page letter, and added that even if the said contention was accepted, the offence of forgery could not be made out. 

Findings of the Court 

The Court at the outset opined that it would not be proper to accept the petitioner's contention that the 1st accused had made certain mistakes in her initial letter, for which the petitioner could not be held responsible, without hearing the 1st accused in the matter. 

The Court was thus of the view that the present plea was not maintainable on ground of not making the 1st accused a party to the same. 

"When a petition is filed under Section 482 Cr.P.C by one of the accused in a private complaint or one of the accused in a final report submitted by the police to quash the criminal proceedings against that accused, and if there is any conflict of interest between the accused persons or if one of the accused contend that, the offence if any is actually committed by the co-accused, without making the co-accused a party, the Criminal Miscellaneous petition is not maintainable. Of course, if the contention of one of the accused is independent or not contradictory to others, in such situations, if the other accused are not made party, there may not be any prejudice to the other accused. But if the case of all the accused is interconnected or if there is an allegation of conspiracy between the accused, without making all the accused as parties, a petition under Section 482 Cr.P.C to quash criminal proceedings is not," Justice Kunhikrishnan observed. 

The Court went on to state that in the present case, the Magistrate had only considered whether there was sufficient reason to proceed with the case. It therefore said that the contention raised by the petitioner that the offences under Sections 193 IPC and 182 IPC are not prima facie made out, could be raised by the petitioner only at the time of Section 244 Cr.P.C by filing a discharge petition.

The Court also left open the question as to whether the offence of forgery would arise in this case, even if the prosecution story was accepted in toto, since the 1st accused had not been made a party to the case. 

As regards the bar in taking cognizance of offences under Sections 193 and 182 IPC as per Section 195 Cr.P.C., the Court was of the considered view that the bar would not be applicable in the present case. 

"Moreover, even if the learned Magistrate has taken cognizance of offences only under Sections 193, 182, 469, 471 and 120B IPC at that stage of taking cognizance, there is no bar against framing charge with some other offences after the stage of Section 244 Cr.P.C, if any evidence to that effect is adduced. Whether this is a case, which ought to be thrown into the dustbin at the preliminary stage itself is also a question," it added. 

The Court further took note of the petitioner having ill will towards the former Chief Minister Chandy, as evidenced through the sworn statements of the latter, and that of his personal staff. 

"After going through these sworn statements of the witnesses, the Magistrate has taken cognizance of the offence. That is more than enough at this stage to take cognizance of the offence. Moreover, whether this amounts to the offence for which the Magistrate has taken cognizance or whether any other offences are made out, is to be decided at the stage starting from Section 244 of the Code of Criminal Procedure," it added. 

The Court thus dismissed the plea, and clarified that the petitioner would be free to raise all the contentions at the stage of framing charge by filing a discharge petition. 

"If such a discharge petition is filed at the appropriate stage, the Magistrate will consider the same untrammelled by any observation in this order. This order is passed based on the order passed by the Magistrate while taking cognizance. The stage of taking cognizance and the stage of framing charges are different. Therefore, the Magistrate should consider the available evidence at the stage of framing charges, untrammelled by any observation in this order and proceed with the case in accordance with law," it added. 

Counsel for the Petitioner: Senior Advocate B. Raman Pillai, and Advocates S. Rajeev, K.K. Dheerendrakrishnan, V. Vinay, M.S. Aneer, and R. Anil

Counsel for the Respondents: Senior Advocate S. Sreekumar, Public Prosecutor Sreeja V., and Advocates Tina Alex Thomas, and Harimohan, 

Citation: 2023 LiveLaw (Ker) 604

Case Title: K.B. Ganesh Kumar v. State of Kerala 

Case Number: Crl.MC 3465/ 2021

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