KOCHI: The Kerala High Court on Wednesday directed the CBI to produce in a sealed cover before 3 pm on Thursday the materials relied on by it to arrest each of the three accused in the Sr Abhaya murder case.
On the basis of it, Justice R Basant will consider on Friday the criminal miscellaneous cases filed by the accused - Fr Thomas M Kottoor, Fr Jose Puthrukkayil and Sister Sephi - challenging the order passed by the Chief Judicial Magistrate, Ernakulam, remanding them in the CBI custody for 14 days and decide whether there were ample material before the CJM to send the accused for police custody for 14 days.
The sheet anchor of the arguments advanced by advocates B Raman Pillai, Udayabhanu and M K Damodaran, appearing for Fr Kottoor and Fr Puthrukkayil and Sr Sephi respectively, was that there was no material before the Magistrate to satisfy himself that the CBI’s demand for 14 days’ custody was justified. Neither the remand report nor the custody application gives the details of the role played by the accused in the murder of Sr Abhaya.
The reason for the arrest and remand should be placed before the Magistrate justifying the deprivation of the liberty of the accused.
A general statement that the accused are involved in the murder will not satisfy the statutory requirements under Rule 20 of the Criminal Rules of Practice. They also argued that monitoring of the investigation by the CJM and by the High Court would cause suspicion that the accused would be denied fair trial. The judge observed that such monitoring was legally permissible.
The counsel also argued that the investigating officer did not specify what compulsive material did they receive between November 1 and 19, 2008 (the date on which the new investigating officer took charge and the date of arrest) to make the arrest. The court observed that this was a layman’s question.
The materials collected during a particular period alone is not relevant. The investigating agency is well within its powers to make a reassessment of the entire materials in its possession and come to a new conclusion.
The counsel also argued that the 14-day detention without legal assistance was a violation of the fundamental rights under Articles 21 and 22 of the Constitution. The agency is trying to cook up evidence, keeping the accused in unknown destinations. Even if there is no physical torture, there is mental harassment.
The court observed that putting inconvenient questions during interrogation could be termed as harassment.
CBI counsel M V S Nampoothiri submitted that the CBI had submitted the entire case diary before the CJM and not just the extract. The defence counsel disputed it pointing out that even the order of the Magistrate did not mention that he had perused the case diary.
The Judge said the error on the part of the court cannot prejudice the investigation that was going on.
HC: Don’t cast aspersions on CBI
The Kerala High Court on Wednesday did not permit the counsel appearing for the accused in the Sr Abhaya murder case to cast aspersions on the CBI on the ground of the unnatural death of V V Augustine, the ASI who had prepared the inquest report of Sr Abhaya’s death and had left a note accusing the CBI for his death.
Advocate B Raman Pillai, the counsel for the first accused Fr Thomas Kottoor, alleged that he had been denied permission to meet his client who is in police custody and whose whereabouts are not known.
He pointed out that there would be mental torture, if not physical torture, of his client by the CBI and then referring to the suicide of Augustine said there was already one casualty.