Tendering Pardon After Committal Is Sessions Court's Prerogative Under S.307 CrPC; Magistrate's Pardon Under S.306 Is A Fatal Illegality: Kerala High Court - 2025-08-28

Udayakumar Custodial Death: Kerala High Court Overturns Death Sentence, Acquits All Accused Citing ‘Flawed and Tainted’ CBI Probe

Ernakulam: In a landmark judgment, the Kerala High Court has acquitted all convicted police officers, including two constables sentenced to death, in the sensational 2005 Udayakumar custodial death case. The Division Bench, comprising Justice Raja Vijayaraghavan V and Justice K. V. Jayakumar , overturned the 2018 verdict of a Special CBI Court, citing fatal procedural illegalities, a "flawed and tainted investigation" by the Central Bureau of Investigation (CBI), and wholly unreliable evidence from approvers.

The High Court ruled that the entire trial was vitiated by fundamental errors, including the CBI's decision to file a fresh charge sheet before a magistrate's court when the original trial was already pending before a Sessions Court, and the illegal tendering of pardon to key witnesses by a court that lacked jurisdiction.

Case Background

The case dates back to September 27, 2005, when Udayakumar, a 28-year-old man, was taken into custody by police constables Jitha Kumar and Sreekumar from a park in Thiruvananthapuram. He was subjected to brutal torture at the Fort Police Station, leading to his death from severe crush injuries to his thighs.

An initial investigation by the Crime Branch-CID (CBCID) led to a trial against three constables. However, the trial faltered as key witnesses, mostly police personnel, turned hostile. Following a plea by Udayakumar’s mother, the Kerala High Court in 2008 ordered the CBI to conduct a "further investigation," staying the ongoing sessions trial.

The CBI, after taking over, arrested several police officers who were witnesses in the first trial, turned them into approvers, and filed a supplementary charge sheet before the Chief Judicial Magistrate (CJM), Ernakulam. This led to a new trial before the Special CBI Court, Thiruvananthapuram, which in 2018 convicted constables Jitha Kumar and Sreekumar of murder, sentencing them to death. Three senior officers—T. Ajith Kumar, E.K. Sabu, and T.K. Haridas—were convicted for conspiracy and destruction of evidence and sentenced to three years' imprisonment.

Arguments Before the High Court

The convicted officers appealed the verdict, challenging the very foundation of the CBI's investigation and the subsequent trial. Their primary arguments were:

* Illegal Investigation: The CBI conducted a "re-investigation" instead of the court-mandated "further investigation." The supplementary report should have been filed before the original Sessions Court where the first trial was stayed.

* Jurisdictional Error in Tendering Pardon: The CBI wrongly approached the CJM, Ernakulam, to tender pardon to witnesses under Section 306 of the Cr.P.C. The appellants argued that once a case is committed to a Sessions Court, only that court has the power to tender pardon under Section 307. This error, they contended, was a fatal and incurable illegality.

* Unreliable Approver Evidence: The testimony of the approvers, who had given contradictory statements in the first trial, was unreliable. They argued that these witnesses changed their stance under duress and coercion from the CBI after being arrested and threatened with prosecution.

The CBI defended its procedure, stating it followed its standard administrative practice of re-registering the FIR and filing the report before its designated court in Ernakulam.

High Court’s Pivotal Findings: A ‘Tainted’ Investigation

The High Court accepted the appellants' arguments, delivering a scathing critique of the CBI's handling of the case. The bench concluded that the investigation and trial suffered from multiple incurable defects.

On Procedural Lapses and Jurisdiction

The Court held that the CBI's actions amounted to a grave miscarriage of justice. It noted that once the original case was committed to the Sessions Court, all subsequent reports and applications, including those for tendering pardon, must be filed before that same court.

"The procedure adopted by the CBI in seeking the tender of pardon, in a case which had already been committed and trial was pending, by filing an application before the Chief Judicial Magistrate, is ex facie illegal, being in violation of the mandatory provisions of Sections 306 and 307 of the Cr.P.C... The evidence of PW1, 5,15, 16, 17 and 18 cannot therefore be relied upon to aid the case of the prosecution."

The judgment emphasized that the CBI's actions led to an improper second committal of a case that was already under the jurisdiction of a Sessions Court, terming it a "fatal irregularity" that caused "serious prejudice to the accused and consequently amounts to a failure of justice."

On the Unreliability of Approver Evidence

The bench found the evidence of the police witnesses, who turned approvers, to be completely unreliable. It pointed out that their testimony shifted dramatically only after they were arrested by the CBI and offered pardon. The Court highlighted that their earlier statements in the first trial were not considered by the CBI court, despite a clear directive from the High Court to do so.

"The high-handed and wholly illegal procedure adopted by the CBI... of indiscriminately arraying all witnesses and coercing them at gunpoint into becoming approvers; of extracting their assent on the condition that they parrot the CBI’s version of events... amounts to nothing short of a tainted and vitiated investigation."

Final Verdict and Implications

Concluding that the prosecution failed to prove the charges beyond a reasonable doubt due to the "flawed and tainted investigation," the High Court set aside the convictions and sentences of all appellants.

"We are compelled to hold that a flawed and tainted investigation has eventually led to the failure of the prosecution case involving the gruesome death of Udayakumar. The evidence adduced before the Court, if shorn of its taint and illegalities, is not sufficient to hold the accused guilty of the offence."

The Court allowed the criminal appeals, rejected the confirmation of the death sentence, and ordered the release of the accused. The judgment serves as a powerful reminder of the importance of procedural fairness and the rigorous standards required to prove guilt, especially in cases prosecuted by premier agencies.