K. Karunakaran vs T. V. Eachara Warrter

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1977 Supreme(SC) 336

SUPREME COURT OF INDIA
P.K. GOSWAMI AND V.D. TULZAPURKAR, JJ.
K. Karunakaran, Appellant
Versus
T. V. Eachara Warrier and another, Respondents.
Criminal Appeal No. 272 of 1977
Decided on 16-11-1977.
Advocates appeared
Mr. D. Mookerjee, Sr. Advocate (M/s. A. S. Nambiar and V. Sivaraman Nair and Miss Pushpa Nambiar, Advocates with him), for Appellant; Mr. Niren De, Sr. Advocate, (Mr. Ram Kumar, Mrs. Sumithra Banerjee, Mr. M. K. D. Namboodiry and Dr. N. M. Ghatate, Advocates with him), for No. 1) and Mr. M. N. Abdul Khader, Advocate-Gen. (M/s. K. M. K. Nair and K. R. Nambiar, Advocates with him (for No. 2), for Respondents.

Advocates:
A.S.NAMBIYAR, D.MUKHERJI, K.M.NAYAR, K.R.NAMBIAR, M.K.D.NAMBUDIRY, M.N.ABDUL KHADER, N.M.GHATATE, PUSHPA NAMBIAR, RAM KUMAR, SUMITRA BANERJI, V.SIVARAMAN NAIR

Headnote:
Criminal Procedure, 1973 - Section 340 – Indian Penal Code - Section 193 – Constitution of India – Article 226 – Claim of compensation – Trial court - This particular proceeding is an off-shoot out of a habeas corpus application instituted on March, 25, 1977, in the High Court of Kerala by T. who is a retired Professor of Hindi of the Government Arts and Science College, Calicut. His son Rajan who was a final year student in the Regional Engineering College, Calicut, was a resident of the College Hostel. Shri Warrier received a registered letter from the Principal of the College informing him that his son, Rajan, was arrested and taken into police custody - This was a time when the proclamation of emergency had been in force in the country since June 25, 1975. Nothing, therefore, could be done in the courts in view of the majority decision of the Constitution Bench of this Court that challenge of even mala fide orders of detention could not be entertained under Art. 226 of the Constitution – Held, After giving our anxious consideration to all the submisions made by counsel of both sides we do not feel justified in interfering with the order of the High Court to scotch the complaint against the appellant at the threshold - It is true, we are dealing with the former Chief Minister of a State who happened to be the Home Minister at the time of incident. Even the time was singularly unique when the occurrence took place and such cases give rise to emotions and feelings of bitterness. It is also true that a person cannot swear a falsehood in the court as a minister with impunity and come out with the truth only as a commoner. When, however, the court is called upon to ultimately try an offense we do not have any doubt that the matters germane to the offence under Section 193, IPC alone will be taken into consideration on the materials produced by the parties and justice will be done in accordance with law - Fact that a prima facie case has been made out for laying a complaint does not mean that the charge has been established against a person beyond reasonable doubt. That will be thrashed out in the trial itself where the parties will have opportunity to produce evidence and controvert each others case exhaustively without any reservation. There may be often a constraint on the part of a person sought to be proceeded against under Section 340, Cr. P.C. to come out with all materials in the preliminary enquiry. That constraint will not be there in a regular trial where he will have ample opportunity to defend himself and produce all materials to show that an offence under Section 193, I.P.C. has not been made out- Appeal dismissed

JUDGMENT

GOSWAMI, J.:—This appeal by special leave is directed against the judgment and order of the High Court of Kerala of June 13, 1977, sanctioning a complaint against the appellant along with two others, who are not before us, for an offence under Section 193, IPC after making an enquiry under Section 340 (1) Code of Criminal Procedure, 1973. At the time of granting special leave this Court ordered for impleading the State of Kerala and the State is represented before us by its Advocate General who adopts the arguments of the appellants counsel Mr. Debabrata Mookerjee, and also addressed us in support of the appeal.

2. This particular proceeding is an off-shoot out of a habeas corpus application instituted on March, 25, 1977, in the High Court of Kerala by T. V. Eachara Warrier who is a retired Professor of Hindi of the Government Arts and Science College, Calicut. His son Rajan who was a final year student in the Regional Engineering College, Calicut, was a resident of the College Hostel. Shri Warrier received a registered letter from the Principal of the College informing him that his son, Rajan, was arrested and taken into police custody on March 1, 1976.

3. This was a time when the proclamation of emergency had been in force in the country since June 25, 1975. Nothing, therefore, could be done in the courts in view of the majority decision of the Constitution Bench of this Court (Khanna, J. dissenting) that challenge of even mala fide orders of detention could not be entertained under Art. 226 of the Constitution (see Additional District Magistrate, Jabalpur v. S. S. Shukla (1976) Supp SCR 172 : (AIR 1976 SC 1207).

4. The heart-broken father had to make numerous efforts and entreaties in appropriate quarters, high and low, to anyhow ascertain the whereabouts of his son. The point that is relevant is that Shri Warrier also saw and met the appellant (Shri Karunakaran) who was then the Home Minister of Kerala, on March 10, 1976, after nine days of the arrest. We are referring to this fact since it will assume some importance as will appear hereinafter on account of omission by Shri Warrier to mention about this interview with Shri Karunakaran in the original writ application. Shri Warrier also met the then Chief Minister, Shri V. Achutha Menon, several times and on the last occasion when he had met him "he expressed his helplessness in the matter and said that the same was being dealt with by Shri Karunakaran, Minister for Home Affairs". There was also a written representation by Shri Warrier to the Home Minister, Government of India, on August 24, 1976, with copy to all Members of Parliament from Kerala. There was a reminder to him on October 22, 1976. Certain Members of Parliament also took the matter up with Shri Karunakaran in Nov., 1976. It is sufficient to state that Shri Warrier did not receive any answer to his piteous queries about the whereabouts of his son. This is how the matter had been dragging keeping the parents in great suspense, misery and distress which can only be imagined.

5. It so happened that the Lok Sabha was dissolved on January 18, 1977, and elections to Parliament and the Kerala State Assembly were to take place on March 19, 1977. Emergency was also necessarily relaxed. Finding all his efforts to trace whereabouts of his son unavailing, the appellant ultimately printed out a leaflet inviting attention of the general public in Kerala about his utter distress at the time when the people were about to go to the polls. In the leaflet Shri Warrier had detailed that his son was kept in illegal custody without even informing him and the members of his family his whereabouts. It was mentioned in his original habeas corpus application that during the election Shri Karunakaran, then Home Minister had addressed several public meetings in various constituencies of the State and that he had stated during his speeches that Rajan was involved as an accused in a murder case and that was why he was kept in detent

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