Abhaya Case – Justice Hema protecting whose interests?

published on January 3, 2009



Abhaya case: State divided over judge Hema’s observations





PNS | Kochi









Is it good of a judge to
look inside the whole matter and reach to the detailed analysis of pros
and cons of a case while considering just the bail application of the
accused? Can a judge discuss in detail in the open court and in front
of the accused and the defendant counsels the minutest factors found in
the investigators’ report while considering the bail application? What
is the implication of two judges differing on the same investigation
report and making detailed but contradicting comments even when the
trial in the case is not even scheduled?

These and many other
such questions about the credibility of the Judiciary are being raised
in Kerala in the wake of the comments made by Justice K Hema of the
Kerala High Court while granting bail to the three accused in the Sr
Abhaya murder. According to sources, the Central investigative agency
is determined to file a special leave petition in the Supreme Court
challenging the order of Justice Hema and the observations she made
while granting bail to the accused.

After a long judicial
exercise which was criticised in the media and by people for more than
three weeks over the issue of granting bail to the accused, Justice
Hema, who had surprised the entire State on December 19, the very day
the court was going for Christmas recess, by deferring the case to a
later date, granted bail to the accused in the Sr Abhaya murder case on
Thursday.

In her judgement document granting bail to Fr Thomas M
Kottoor, Fr Jose Puthrukayil and Sr Seffi of the Knanaya Catholic
Church, first second and third accused respectively, Justice Hema
unleashed scathing criticisms against the CBI for going the wrong way
in the investigation. Several lawyer said the judge had overstepped the
boundaries of the case before her because she was dealing only with the
bail applications and not the trial of the case.

Quoting Supreme
Court guidelines and sections of written laws of the land, lawyer Sivan
Madathil said that Justice Hema had gone into things those she could
have avoided while considering bail pleas. He said Justice Hema had
dealt with the case of bail applications as though she was dealing with
the actual trial in the case. At the same time, he said, she had also
found serious problems with the investigation method of the CBI while
senior judge Justice Basant had some weeks ago had praised the probe
agency for its efficiency and progress in the investigation of the Sr
Abhaya case.

Justice Hema pointed out one after one where the
CBI had gone wrong in finding fault with the CBI investigation. She had
even said that the CBI should not have subjected nun Sr Seffi to
virginity test. The judge also said the report of the narco-analysis
procedures on the accused had been tampered with at the Central
Forensic lab in Bangalore while another senior judge of the same High
Court had concluded that it was the CBI who had manipulated the report.

Layers like Sivan Madathil pointed out that the judge had
ridiculed the entire CBI by instructing that senior and efficient
officials should oversee the investigations into the Sr Abhaya case.
They pointed out that the case was presently being supervised by a
joint director and a DIG of the agency and expressed surprise as to who
the more efficient than people in such positions could be.

On
the second day of the examination of the accused person’s bail
applications when Justice Hema had discussed in the open court the
findings of the CBI in the case, the agency had appealed to the Chief
Justice of the High Court to transfer the case to a different judge.
She had rejected outright the CBI’s plea to suspend the examinations
till the Chief Justice took a decision on its petition.

The
probe into the 16-year-old Sr Abhaya case has got stalled for all
practical purposes because the CBI is unlikely to proceed with the
probe until the Supreme Court made an order on the special leave
petition that the agency is preparing to submit on Monday itself. Also,
the agency is unlikely to depute any senior and efficient official to
supervise the investigations until a decision comes from the Supreme
Court, lawyers say.




Doctor contradicts Justice Hema

PNS | Kochi

Within
24 hours of the observation made by Justice Hema of the Kerala High
Court on the cause of death of Sr Abhaya in the well of St Pious X
Convent on march 27, 1992, Dr C Radhakrishnan, who had carried out the
postmortem of the nun’s body contradicted the judge by deposing before
a court that he had never said the nun had committed suicide.

Granting
bail to the three accused persons in the Sr Abhaya murder case on
Thursday, Justice Hema had criticised the CBI investigators saying they
had not taken into account Dr Radhakrishnan’s statement that Sr Abhaya
had died of drowning. However, Dr Radhakrishnan told the Judicial First
Class Magistrate, Kolenchery on Friday that he had never said so, but
stated that Sr Abhaya had died of asphyxiation in water amidst the
attempt to murder her.

The doctor, who was the senior police
surgeon at the Medical College Hospital, Kottayam, at the time of Sr
Abhaya’s death, also told the court that the nun had been struck in the
head by some blunt object before she died of asphyxiation in water. He
said that he had never told anyone that the cause of Sr Abhaya’s death
was drowning or that it was a case of suicide.

Dr Radhkrishnan
told the Kolenchery Court that he had tried to examine the well after
the post-mortem to make his report as comprehensive as possible but the
local police who first probed the death and the Crime Branch which took
over the case later had not given him any assistance for this.

The
doctor had given this information to the CBI during his deposition to
the investigators but the officials on Friday produced him before the
court and allowed him to depose before it in a deliberate move to
disprove Justice Hema’s observation in the bail order on Thursday.

Justice
Hema criticised the CBI investigators saying they had not examined in
the required manner Dr Radhakrishnan’s report which suggested Sr Abhaya
had died of drowning. But the deposition in the court by the doctor
would enable the CBI to establish that the judge had made her
observation without studying the documents properly, legal experts
said.

In the case of Dr Radhakrishnan, it would be impossible
for him to turn hostile as he had willingly deposed before the court,
they said.

The CBI had thus far recorded statements of six
witnesses in the court, and this would strengthen its case against the
three Knanaya Catholic Church personalities, Fr Thomas M Kottoor, Fr
Jose Puthrukayil and Sr Seffi. According to the CBI, the three had
thrown Sr Abhaya in the well in the convent after striking her in the
head with the back of an axe.



Trust the Lord, not the narco test
By Manoj k Das @ newindpress.com

‘PRAISE my Lord!’ As
the words rang out, many in Mumbai’s Arthur Road Jail must have been
surprised to hear Abu Salem uttering a Christian prayer before they
realised that he was actually referring to the Kerala High Court.

For the HC, while granting bail to the accused priests and nun in the
Sr Abhaya murder case, had made some stinging remarks and questioned
the integrity of the experts at the Forensic Science Laboratory,
Bangalore, where Abu Salem too had undergone a narco analysis.

The thrill must have echoed in the minds of the accused in the Arushi
murder and in several blasts cases and of several terrorists who were
all subjected to the tests by the same team which examined the accused
in the case. According to informed sources, about 800 people have been
administered the truth serum under FSL chief Dr Malini’s supervision.

They can all now claim that the CDs provided to the respective
investigating teams were doctored or manipulated. But obtaining bail
may not be as easy as it has been for the Abhaya accused  another
judgment by Justice Ramkumar raising the FSL team and its integrity is
sure to be cited by the respective prosecutions to oppose any effort to
use Justice Hema’s posers on the credibility of the FSL.

 One can continue to hypothesise, given the behaviour pattern of our
lawyers. Perhaps some of them – like those appearing for the accused in
the Rajiv Gandhi assassinationor for Lalu Prasad in fodder scam – will
take a cue from Justice Hema’s views on the CBI team headed by DySP
Nandakumaran Nair to argue that the investigation into the cases
involving their clients by the same officer was also (mis)guided by the
media.

Again, the prosecution will counter such pleas with the words of praise
showered by Justice Hema’s brother judge Justice Basant who literally
saluted the tea munder DySP Nandakumaran Nair who had won the
President’s medal. In fact, Justice Basant withdrew certain initial
doubts he had raised about the team by going on record a day later with
“yesterday I made certain remarks that were unwarranted and uncalled
for”.

But the Hema vs Basant observations would definitely make interesting
court room drama whenever and wherever lawyers level them against each
other in pursuit of justice. The HC’s grit in unmasking the real cause
of death – with Justice Hema’s demand for a senior CBI officer to
supervise the seventh CBI team probing the case – deserves praise.

But we can only hope that the outcome of the investigation will not
blame a localised tornado for lifting Sr Abhaya off her cot and pushing
her into the well; if a tornado can form over Lake Sastham kottato
derail a train, there is always room for a wilder imagination.




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