Hema Committee Report : How Can Witnesses Say They Won't Cooperate With Investigation? Supreme Court Asks

The Supreme Court today (December 12) heard in brief petitions challenging the Kerala High Court's October 14 direction to the police to register FIRs on statements made by women actors to the Justice Hema Committee regarding the abuses they faced in the Malayalam cinema industry.

During the hearing, the Court orally asked how can the victims/witnesses say that they would not cooperate with the investigation after the State has registered cases.

The matter was before a bench of Justices Vikram Nath and PB Varale.

In the October 14 order, a Special Bench of Justices A. K. Jayasankaran Nambiar and C. S. Sudha, hearing matters related to the Justice Hema Committee Report, observed that the witness statements in the Justice Hema Committee Report disclosed the commission of cognizable offences, which could be treated as "information" to take action as per Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) (provides for registration of FIR when information is received regarding the commission of a cognizable offence).

It directed the Special Investigating Team (SIT), constituted by the Government to inquire into the allegations made in the Justice Hema Committee Report, to take the necessary action as per Section 173 of the BNSS.

Three petitions have been filed against the October 14 order by film producer Sajiman Parayil, a Malayalam film actress, who deposed before the Justice Hema Committee and another Malayalam actress has filed only recently. In the last SLP, the notice has not been issued. Notices were issued on the first SLP on October 23 and on second SLP on November 11 by a bench of Justices Vikram Nath and PB Varale.

In the first SLP, the petitioner contended that the statements made by the victims to the Justice Hema Committee after six years cannot be regarded as 'information' as per Section 173 BNSS when they themselves are disinclined to initiate criminal proceedings and have not asserted the statements later.

In the second SLP, the actress said that she gave statements to the Hema Committee "purely for academic purposes" and not to initiate any criminal proceedings. She said that she voluntarily provided the statement with the understanding that it was intended solely for the Committee's academic or advisory purposes and not for triggering any legal or criminal action. In both SLPs, the Kerala Women Commission has filed its counter affidavit questioning the locus of both petitioners.

Today, Senior Advocates K. Parameshwar (for 1st petitioner) and Siddharth Dave (for 2nd and 3rd petitioner) sought an interim stay against the Kerala High Court's direction. Whereas, Senior Advocates Ranjith Kumar (for the State of Kerala) and Gopal Sankarnarayan (for Women in Cinema Collective) opposed the plea. Whereas, Advocate Parvathi Menon (for Kerala Women Commission) questioned the locus of the first petitioner.

Parameshwar stated: "Even if the victims are not willing to prosecute their case any further, on the basis of the statement made before that Committee, FIRs must be joined and they must be taken to its logical conclusion. But what is baffling is that neither the accused nor anyone will be entitled to the copy of the FIR and without the cooperation of the victims, the FIRs [has to be registered]."

Whereas, Dave said: "We are the two victims...we don't want to prosecute our case...But the High Court says regardless whether you want or not, it will still be prosecuted...We are saying, those persons who are unwilling to go, I am not asking for blanket stay, and get their statements recorded, they may be protected..."

Dave referred to para.5 of the High Court's order which says: "The SIT in its action taken report dated 28/09/2024 has stated that none of the witnesses who have given statement before the Committee are ready to co-operate and give statement to the police. We reiterate that there cannot be any compulsion of the witnesses to give statement. The SIT on registration of a crime, shall take necessary steps to contact the victims/survivors and record their statements."

He added that the State can carry out the investigation, but petitioners cannot be compelled if they don't want to prosecute them. To this, Justice Nath remarked: "Suppose an FIR has been registered, and the State is now prosecuting it, State and investigation agency will obviously record your statement. You may go in Court and you may say or you may not go in Court, then Court will issue a non-bailable warrant. You may be declared hostile by public prosecutor, but how can you say that once a State case is registered, you will not be cooperating in the investigation?"

Dave clarified that this case involves some amount of privacy and the victims do not want to come out and prosecute. Kumar contended that Dave did not read the whole para 5 and missed the last line which says: "In case the witnesses do not cooperate, and there are no materials to proceed with the case, appropriate steps as contemplated under Sec.176 BNSS shall be taken."

He added that in such a case, the closure report can be filed.

Whereas, Menon questioning the locus of petitioners said: "The person who has first initially come before this Hon'ble Court, he is the person who had approached the Hon'ble High Court challenging the order of the State Information Commission. He has nothing to do with the investigation. He was anxious that the State Information Commission should not publish the order... It was only on academic question whether 8,10 and 11 Right to Information Act will apply or not...It was dismissed on locus."

Adding to this, Menon clarified that even the second petition is not maintainable because the petitioner is not a victim herself.

Kumar also reiterated that the first petition is not maintainable.

However, Court did not pass any interim stay. Justice Nath said: "We are not issuing notice [in the 3rd matter] without hearing."

Case Details: Case Details: Sajimon Parayil v. State of Kerala & Ors, SLP (C) No.25250-25251/2024 and others

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