A court clerk and a lawyer swapped evidence. The High Court said the case can't proceed. The Supreme Court said —

The underwear didn't fit the convict. So the High Court ordered an inquiry. But when the clerk and lawyer were charged, the High Court said the case can't proceed. The Supreme Court just said — yes it can.

In 1990, an Australian national named Andrew Salvatore was caught at Thiruvananthapuram airport carrying charas (a cannabis derivative). He was convicted under the NDPS Act (the law that governs narcotic drugs and psychotropic substances) and sentenced to ten years of rigorous imprisonment plus a fine of one lakh rupees. But the key exhibit — his underwear, seized as evidence — didn't fit him. Not even close. The Kerala High Court, hearing his appeal, noticed the discrepancy and acquitted him. Then it ordered an inquiry into how the evidence had been swapped.

When the underwear didn't fit

The trial court had convicted Salvatore under Section 20(b)(ii) of the NDPS Act. But on appeal, the High Court found that the underwear produced as evidence — marked as material object Mo2 — was physically incompatible with the accused. The discrepancy was so stark that the court concluded the evidence had been planted. Someone had deliberately tampered with the evidence while it was in the custody of the court — what the law calls custodia legis (the legal custody of a court, where evidence is supposed to be safe from interference).

The High Court acquitted Salvatore and directed an inquiry. That direction eventually led to an FIR (a written complaint that starts a police investigation) being registered in 1994 against two people: a court clerk (Accused No.1) and a junior advocate named Antony Raju (Accused No.2). The allegation was that they had conspired to swap the underwear so that it would not match the accused, thereby securing his acquittal.

The long road to charges

The investigation took over a decade. A chargesheet was finally filed in 2006, alleging offences under several sections of the Indian Penal Code: Section 120B (criminal conspiracy), Section 420 (cheating), Section 201 (causing disappearance of evidence), Section 193 (giving false evidence), Section 217 (a public servant disobeying a direction of law), and Section 34 (common intention). The Judicial First Class Magistrate Court at Nedumangad took cognizance of the case in 2014, meaning it formally accepted the chargesheet and agreed to hear the matter.

But then, in 2022, both accused approached the Kerala High Court with a petition under Section 482 of the CrPC (the High Court's inherent power to shut down a case that should never have been filed). Their argument was simple: the magistrate could not have taken cognizance of these offences because of a procedural bar under Section 195(1)(b) of the CrPC.

The procedural wall: Section 195(1)(b)

Section 195(1)(b) of the CrPC is a provision that creates a bar on taking cognizance of certain offences — specifically, offences against public justice and offences relating to documents produced in court — unless the court itself files a written complaint. The idea behind this provision is to prevent frivolous or malicious prosecutions arising from court proceedings. If someone lies in court or tampers with evidence, it is the court that should decide whether to prosecute, not a private individual or the police.

The accused argued that the offences they were charged with — particularly Sections 193, 201, and 217 — fell squarely within the list of offences covered by Section 195(1)(b). Since no written complaint had been filed by the court, the magistrate's order taking cognizance was invalid. The Kerala High Court agreed. In March 2023, it quashed the entire proceedings, including the order of cognizance. But it did not let the matter die entirely — it directed that fresh action be taken under Section 195(1)(b), meaning the court could still file a written complaint if it chose to.

The Supreme Court's intervention

The State of Kerala appealed to the Supreme Court. So did a third party — M.R. Ajayan — who claimed a bona fide interest in the matter. The Supreme Court, comprising Justice Sanjay Karol and Justice C.T. Ravikumar, heard both appeals together in November 2024.

The question before the court was deceptively narrow: Did the bar under Section 195(1)(b) apply to these proceedings, given that they originated from a direction of the High Court itself?

The State argued that the proceedings did not arise from a private complaint or a police investigation in the ordinary sense. They arose from a judicial order of the Kerala High Court — the very order that had acquitted Salvatore and directed an inquiry. The High Court's administrative directive to register an FIR was merely the implementation of that judicial order. Therefore, the protective purpose of Section 195(1)(b) — preventing frivolous prosecutions — was already satisfied by the High Court's own involvement.

The accused countered that the High Court's order was an administrative direction, not a judicial order. The distinction mattered, they argued, because Section 195(1)(b) requires a written complaint from the court, not a general direction to investigate.

Why the distinction didn't matter

The Supreme Court rejected the distinction. Relying on two key precedents — CBI v. M. Sivamani (2017) and Perumal v. Janaki (2014) — the court held that for the purposes of Section 195(1)(b), there is no meaningful difference between a judicial order and an administrative order issued by a court to which the subordinate court is subordinate. Both serve the same protective function.

The court observed that the proceedings originated from a judicial order of the Kerala High Court in Criminal Appeal No.20/1991, followed by the High Court's administrative directive to register an FIR. Since the High Court itself had set the process in motion, the bar under Section 195(1)(b) did not apply. The magistrate was perfectly entitled to take cognizance based on the chargesheet filed by the police.

The Supreme Court also addressed the question of whether a third party — M.R. Ajayan — had the right to appeal under Article 136 of the Constitution (the Supreme Court's power to grant special leave to appeal). The court held that where allegations involve serious interference with judicial processes — conduct that strikes at the foundation of the administration of justice — a third party with a bona fide interest has the standing to challenge the quashing of proceedings.

The order: proceedings restored

The Supreme Court set aside the High Court's order. It restored the order of cognizance and all further proceedings in C.C. No.811/2014 before the Judicial First Class Magistrate-I at Nedumangad. The trial must be concluded within one year. The accused are directed to appear before the trial court on 20th December 2024.

The appeal filed by M.R. Ajayan was allowed. The appeal filed by Antony Raju — the junior advocate who was one of the accused — was dismissed.

THE PLAY: If a High Court directs an inquiry into evidence tampering and an FIR follows, the Section 195 bar does not apply — the court's own direction serves as the equivalent of a written complaint, and the magistrate can proceed with the chargesheet.

The underwear never fit the convict. But the law, this time, fit the crime.