In a major setback for LDF, the Kerala High Court dismissed the petition filed by KB Ganesh Kumar MLA on Friday, seeking to quash the case pending in First Class Judicial Magistrate, Kottarakkara concerning the alleged conspiracy to name the late Congress leader Oommen Chandy in Solar scam linked sexual assault case.
Justice PV Kunhikrishnan said that serious allegations are raised against the MLA in which conspiracy is also alleged stating that he hatched a conspiracy with the first accused to implicate the former Chief Minister of Kerala late Oommen Chandy.
"The former Chief Minister has passed away. Such an allegation should not be in the air because his soul will not forgive the same. The continuation of this case is necessary not only for the soul of the former Chief Minister and his bereaved family but also to prove the integrity of the petitioner too. Let the soul of our former Chief Minister rest in peace," said the court.
On the other hand, if such an allegation against the petitioner who is a Member of the Legislative Assembly is incorrect, the petitioner can take appropriate steps for malicious prosecution against the complainant. Therefore, "I am of the opinion that this case is to proceed and should arrive at a logical conclusion for the interest of the soul of the former Chief Minister and if the allegations are wrong, it will prove the integrity of the petitioner, a known politician," observed the court.
The complaint filed by Advocate Sudheer Jacob before the JFCM court alleged that the accused-- victim in the solar sexual assault case-- produced a letter before the Solar Enquiry Commission which was allegedly written on July 19, 2013. The letter produced before the Commission is fabricated at the instance of Ganesh Kumar MLA and it was after a criminal conspiracy against the then Chief Minister, other Ministers, and political leaders.
Based on the complaint, the Magistrate Court held that there is prima facie evidence to take cognizance against the victim and Ganesh Kumar under section 193 (Giving or fabricating false evidence), 182 (False information, with intent to cause public servant to use his lawful power to the injury of another person), 469 (Forgery), 471 (Using as genuine a forged document) and 120 B (Criminal Conspiracy).
The counsel for Ganesh Kumar submitted that the victim herself prepared the letter, signed and submitted it before the Commission. If it was written by somebody else, the allegation may be correct. Hence, no forgery happened. If the offence is not made out, there is nothing to proceed further.
The proceedings against the petitioner are an abuse of the process of the court. The Commission had not found that the letter was forged and the Magistrate cannot decide whether the letter is genuine or not as per law. The proceedings would amount to an appeal against the report submitted by the Solar Enquiry Commission which is not permitted as per law, he added.
The court said that the statement given by Phenny Balakrishnan and the then Pathanamthitta District Jail Superintendent would show that the first accused gave a 21-page letter to Advocate Phenny Balakrishnan from the jail.
The then Chief Minister Oommen Chandy clearly stated that there was displeasure from the side of the petitioner towards him because he was not included in the Council of Ministers. The statement of the then personal staff of the petitioner and the statement of the then personal staff, LD Clerk of the second accused are also important. They need not be disbelieved at this stage, because they are admittedly the personal staff members of the petitioner.
After going through these statements of the witnesses, the Magistrate has taken cognizance of the offence. That is more than enough at this stage to take cognizance of the offence, said the court.