Point of Law: Maxim "actus non facit reum, nisi mens sit rea" - A mere commission of a criminal act is not enough to constitute a crime, and this is more important in case of more serious crimes.

ORDER :

The petitioners are accused in Crime No.RC7(S)/2021-SC-II/CBI/New Delhi. The petitioners in B.A.No.5109 of 2021 are accused Nos.1 and 2 in the crime. Accused No.4 is the petitioner in Crl.M.C.No.4424 of 2021. The petitioner in B.A.No.5809 of 2021 is accused No.7. Accused No.11 in the crime is the petitioner in B.A.No.5010 of 2021. The petitioner in B.A.No.6502 of 2021 is accused No.17.

2. The petitioners are alleged to have committed offences punishable under Sections 120-B read with Sections 167, 195, 218, 323, 330, 348, 365, 477-A, and 506 of the Indian Penal Code.

Background

3. Sri.S.Nambi Narayanan, a renowned scientist of the Indian Space Research Organization (ISRO), was arrested in a prosecution initiated by the State Police, which was found to be false and baseless. The prosecution resulted in harassment and immeasurable torture of Sri.Nambi Narayanan. The criminal law was set in motion without any foundation by which the liberty and dignity of Sri.Nambi Narayanan and some others, including Ms.Mariyam Rasheeda and Ms.Fauzia Hassan, were put in danger. The State Police failed to take the required care and caution while dealing with an extremely sensitive case.

3.1. The facts leading to the initiation of prosecution, as referred to above, are as follows:-

3.2. On 20.10.1994, Vanchiyoor Police registered Crime No.225 of 1994 against one Ms.Mariyam Rasheeda, a Maldivian National, under Section 14 of the Foreigners Act, 1946 and Para 7 of the Foreigners Order, 1948. The said crime was registered based on a report by Sri.S.Vijayan (accused No.1), the then Inspector, Special Branch, Kerala Police, Thiruvananthapuram. The crime was initially investigated by Sri.Thampi S.Durgadutt (accused No.2), who was the then SHO of Vanchiyoor Police Station. Ms.Mariyam Rasheeda was arrested and sent to judicial custody on 21.10.1994. Her custody was obtained by the Police on 3.11.1994. She was interrogated by the Kerala Police and the Intelligence Bureau Officials. The officials who interrogated Ms.Mariyam Rasheeda allegedly obtained certain “confessions” which led to the registration of Crime No.246 of 1994 of Vanchiyoor Police Station on 13.11.1994 under Sections 3 and 4 of the Official Secrets Act, 1923, based on the allegation that certain official secrets or documents of ISRO had been leaked out by the scientists of ISRO.

3.3. In Crime No.246 of 1994, Ms.Mariyam Rasheeda and Ms.Fauzia Hassan, another Maldivian National, were arrested. On 15.11.1994, the State Police Chief constituted a Special Investigation Team (SIT) headed by Sri.Siby Mathews (accused No.4), who was the then DIG, Crime Branch of Kerala Police. On 21.11.1994, Sri.D.Sasikumaran, a scientist of ISRO, was arrested. Sri.S.Nambi Narayanan was also arrested on 30.11.1994.

3.4. On 3.12.1994, consequent to the request of the Government of Kerala and the decision of the Government of India, the investigation was transferred to the CBI. After investigation, the CBI submitted a report before the Chief Judicial Magistrate, Ernakulam, under Section 173(2) of the Code of Criminal Procedure in Crime No.246 of 1994, stating that the evidence collected indicated that the allegations of espionage against the scientists of ISRO, including Sri.Nambi Narayanan, were not proved and found to be false. The Chief Judicial Magistrate, in its order dated 2.5.1996, accepted the report submitted by the CBI. In Crime No.225 of 1994, the CBI submitted final report before the Chief Judicial Magistrate alleging offence under Section 14 of the Foreigners Act, 1946. In Crime No.225/1994, Ms.Mariyam Rasheeda was acquitted after trial.

3.5. In the report of closure on the allegation of espionage, the CBI requested the Government of India and the Government of Kerala to take departmental action against the erring officials. The jurisdictional Magistrate accepted the report submitted by the CBI on 2.5.1996.

3.6. The Government of Kerala decided not to take any disciplinary action against the State Governmen