Journalist Has Right to Challenge Court Order in Case Involving Tampering of Evidence, Rules Kerala High Court

Ernakulam: In a significant ruling on the scope of public participation in criminal justice, the Kerala High Court has held that a journalist, though a stranger to the proceedings, has the locus standi to challenge a trial court's refusal to add charges in a case concerning the administration of justice. Justice Dr. Kauser Edappagath set aside a Magistrate's order, paving the way for the addition of a charge under Section 409 of the IPC (criminal breach of trust by a public servant) against a court clerk and an advocate accused of tampering with a case property.

The High Court exercised its supervisory jurisdiction under Article 227 of the Constitution, emphasizing that in cases where "allegations are of such nature in gravity that may interfere with judicial functions and thereby polluting the mechanism of administrative justice," a third party can bring an illegal order to the court's notice, especially when the prosecution fails to act.

Background of the Case: An Allegation of Tampering

The matter originates from a criminal case (C.C.No. 811 of 2014) where a former property section clerk of a Magistrate court and an advocate are accused of a conspiracy dating back to 1990. The prosecution alleges that the clerk (accused 1) dishonestly handed over a crucial piece of evidence—an underwear from a sessions case—to the advocate (accused 2). The advocate allegedly took the evidence, tampered with it, and returned it after three months to help secure an acquittal in the original case. The accused were being tried for offences including criminal conspiracy (S. 120B IPC) and cheating (S. 420 IPC).

As the trial concluded and the case was posted for final arguments, the Assistant Public Prosecutor filed a petition under Section 216 of the Cr.P.C. to add the charge of criminal breach of trust by a public servant (Section 409 IPC). The trial court dismissed this petition, stating that the ingredients for Section 409 were not met and that, based on recent Supreme Court judgments, charges for cheating (S. 420) and criminal breach of trust (S. 409) could not co-exist.

When the State did not challenge this dismissal, journalist Anil K Emmanuel, who had previously intervened in the matter at the Supreme Court level, filed a petition before the High Court.

Key Arguments Before the High Court

• Petitioner's Counsel (Sri. Ajit.G. Anjarlekar): Argued that the petitioner had the right to challenge the illegal order due to the case's serious implications for the justice system. He contended that the facts clearly made out a prima facie case for Section 409 IPC, as the court clerk was entrusted with case property by virtue of his office and committed a breach of that trust.

• Accused's Counsel (Sri. B.Ajithkumar): Vehemently opposed the petition, arguing that a stranger has no locus standi in criminal proceedings. He also submitted that the trial court was correct in finding that the offence under Section 409 was not made out.

• State's Counsel (Sri. C.K.Suresh, Senior Public Prosecutor): Supported the petitioner's plea, stating that the evidence on record prima facie attracted Section 409 IPC and the trial court ought to have allowed the petition.

High Court's Rationale and Legal Principles

Justice Kauser Edappagath systematically addressed the two core issues: the journalist's locus standi and the merits of adding the charge.

1. On Locus Standi of a Stranger: The Court affirmed the petitioner's right to file the petition, drawing a parallel with the established principle that any member of society can oppose the withdrawal of a prosecution for an offence against society. The judgment cited the Supreme Court's Constitution Bench ruling in Sheonandan Paswan v. State of Bihar to hold:

"If the offence for which a prosecution is being launched is an offence against society and not merely an individual wrong, any member of society must have locus to initiate a prosecution, as also to resist withdrawal of such prosecution, if initiated."

The Court noted the petitioner's consistent engagement in the case, including his intervention before the Supreme Court, which had previously acknowledged the gravity of the allegations concerning tampering with court processes. It concluded that the High Court can exercise its supervisory power under Article 227 to correct an illegality brought to its notice, "even by a stranger."

2. On Prima Facie Case for Section 409 IPC: The High Court disagreed with the trial court's finding that the ingredients of Section 409 were not met. Justice Edappagath reasoned:

"It is not in dispute that the 1st accused was a property clerk at the relevant time. The property clerk, by virtue of his office, is the custodian of all the properties... When the property involved in the case is kept in the property room/thondi room, there need not be a separate order of entrustment entrusting the property to the property clerk."

The Court held that the evidence, including the Thondi Register entries showing the handover and return of the tampered item, was sufficient to form a "presumptive opinion" and "strong suspicion" required for framing a charge.

3. On Co-existence of Charges (S. 409 & S. 420 IPC): The High Court distinguished the Supreme Court precedents relied upon by the trial court. It pointed to Section 221 of the Cr.P.C., which explicitly allows for framing charges in the alternative when it is doubtful which of several offences has been committed. The illustration to the section itself mentions charging an accused with theft, receiving stolen property, criminal breach of trust, and cheating simultaneously. The Court clarified that whether both charges can be sustained at the final verdict is a matter for trial, but there is no bar to framing them together.

Final Decision and Its Implications

The Kerala High Court allowed the journalist's petition, setting aside the trial court's order (Ext.P17) and allowing the prosecutor's application to add the charge under Section 409 of the IPC. The trial court has been directed to proceed with the altered charge, ensuring no prejudice is caused to the accused.

This judgment reinforces the principle that the doors of justice are open to vigilant members of the public, including journalists, in cases that strike at the integrity of the judicial system. It underscores the broad and flexible power of courts to alter charges at any stage before judgment to ensure a just and fair trial.