A court clerk and a lawyer were charged with swapping a drug convict's underwear. The Supreme Court just revived the case.

In 1990, an Australian man was caught with charas in his underwear. The underwear didn't fit him. A clerk and a lawyer were accused of swapping it. This week, the Supreme Court said — the case must go on.

Thirty-four years after a drug convict's underwear became the centre of a tampering scandal, the Supreme Court has revived criminal proceedings against a court clerk and a junior advocate. The Kerala High Court had shut the case down on a technicality. The Supreme Court just tore that technicality apart.

When the underwear didn't fit

In 1990, an Australian national named Andrew Salvatore landed at Thiruvananthapuram airport. Customs officers found charas — a form of cannabis — concealed in his underwear. He was arrested, tried, and convicted under Section 20(b)(ii) of the NDPS Act (the provision that punishes offences relating to cannabis plants and cannabis).

Salvatore appealed. And that's when things got strange.

The Kerala High Court, examining the evidence in Criminal Appeal No. 20/1991, noticed something odd. The underwear — marked as material exhibit Mo2 — did not fit the accused. The courtroom fell silent as the judges considered the implication: the key piece of evidence had been swapped while it was in judicial custody — in the safe keeping of the court itself. The file, thick with documents, felt heavy with suspicion.

The High Court acquitted Salvatore on February 5, 1991. Then it did something more: it directed an inquiry into who had tampered with the evidence.

The FIR that took twelve years

On October 5, 1994, based on the High Court's direction, the police registered an FIR (a written complaint that starts a police investigation) — numbered 215/94. The accused were a court clerk and a junior advocate named Antony Raju. The allegation: they had conspired to swap the underwear while it was in the court's custody (custodia legis), intending to help Salvatore escape conviction.

The chargesheet — the formal list of charges — was filed only on March 24, 2006, twelve years after the FIR. The offences included criminal conspiracy (Section 120B IPC), cheating (Section 420), causing disappearance of evidence (Section 201), giving false evidence (Section 193), and a police officer disobeying the law (Section 217), all read with Section 34 IPC (common intention).

In 2014, the Judicial First Class Magistrate in Nedumangad took cognizance — formally accepted the case for trial — and registered it as CC No. 811/2014. The magistrate's desk, cluttered with case files, now held this decades-old mystery.

Why the High Court shut it down

In 2022, both accused went to the Kerala High Court with a single argument: the magistrate could not take cognizance of this case because of a bar under Section 195(1)(b) of the Criminal Procedure Code (CrPC).

Section 195(1)(b) is a procedural gatekeeper. It says that for certain offences — including giving false evidence and causing disappearance of evidence — a court cannot take cognizance unless the court itself files a written complaint. The idea is to prevent private individuals from filing frivolous cases about what happened inside court proceedings. Only the court, which knows what really happened, should trigger such cases.

The accused argued: no court filed a complaint here. The police filed a chargesheet. So the magistrate had no jurisdiction.

The Kerala High Court agreed. On March 10, 2023, it quashed the entire proceedings — wiped the case clean. But it added a twist: it directed the trial court to start fresh proceedings, this time following the proper procedure under Section 195.

Both sides appealed to the Supreme Court. The accused — Antony Raju — said the direction for fresh proceedings was illegal. A public-spirited person — M.R. Ajayan — said the quashing itself was wrong.

What the Supreme Court saw differently

The Supreme Court bench — Justice Sanjay Karol and Justice C.T. Ravikumar — reversed the High Court on November 20, 2024. The courtroom in New Delhi, with its high ceilings and polished wood, heard arguments that stretched back to a small courtroom in Kerala three decades ago.

The key question was simple: does the bar under Section 195(1)(b) apply when the High Court itself directed the investigation?

The court said no. The purpose of Section 195 is to protect courts from frivolous complaints by private individuals. But here, the High Court — in its judicial capacity — had directed the inquiry. The High Court was the originating authority. It had already examined the evidence and concluded that tampering had occurred. The bar on cognizance was meant to protect the court, not to shield those who tamper with evidence in the court's own custody.

The Supreme Court held: "Where a High Court, in exercise of its judicial powers and constitutional authority of superintendence, directs investigation or registration of FIR regarding offences specified in Section 195(1)(b) CrPC, the bar on cognizance under that provision does not apply, as the purpose of the bar — to protect against frivolous private complaints — stands satisfied."

The court also rejected the argument that this only applied to "judicial orders" and not "administrative orders." It said the distinction was immaterial. When the High Court is the originating authority, the nature of its order does not matter. The court drew no distinction between a judicial order and an administrative order by a court for purposes of the bar on cognizance.

The test that decided the case

The Supreme Court relied on its own precedent in CBI v. M. Sivamani (2017), which held that the bar under Section 195 does not apply when the court itself initiates the process. The court also cited Iqbal Singh Marwah v. Meenakshi Marwah (2005), which clarified that the bar is meant to protect courts, not to create an escape route for those who commit offences against public justice. Eight precedents were cited in total, each reinforcing the principle that the administration of justice must be protected from internal corruption.

Among them: Perumal v. Janaki (2014), which dealt with the scope of Section 195; Sachida Nand Singh v. State of Bihar (1998), which held that the bar does not apply when the offence is committed before the proceeding begins; M.S. Ahlawat v. State of Haryana (2000), which clarified the distinction between offences committed in the course of a proceeding and those committed before; P.S.R. Sadhanantham v. Arunachalam (1980), which recognised the locus of a private individual in cases affecting public justice; Amanullah v. State of Bihar (2016), which reiterated the protective purpose of Section 195; and National Commission for Women v. State of Delhi (2010), which emphasised that courts must not allow procedural bars to become shields for wrongdoing.

The court found that the High Court's direction for fresh proceedings — while technically permissible — was unnecessary. The original proceedings were valid. They should never have been quashed.

Why a private person could appeal

One more issue arose: could M.R. Ajayan, a private individual, even file an appeal in the Supreme Court? The accused argued he had no locus standi — no legal standing to challenge the quashing.

The Supreme Court rejected this too. It held that a private individual with a bona fide connection to the case — particularly one involving allegations of interference with judicial processes — has the right to appeal under Article 136 of the Constitution (the Supreme Court's special leave jurisdiction). Tampering with evidence in judicial custody strikes at the foundation of the administration of justice. It is not a private dispute. The court cited P.S.R. Sadhanantham v. Arunachalam (1980) and Amanullah v. State of Bihar (2016) to support this view.

What happens now

The Supreme Court set aside the High Court's order. It restored the criminal proceedings — Crime No. 215/1994 and CC No. 811/2014 — to the files of the Judicial First Class Magistrate in Nedumangad. The trial must be completed within one year. The accused must appear in court on December 20, 2024.

The court's operative order was clear: "The impugned order is set aside. The order taking cognizance in Crime No. 215/1994 and all further proceedings (CC No. 811/2014) are restored on the files of Judicial First Class Magistrate-I, Nedumangad. Trial to be concluded within one year."

The Supreme Court allowed the appeal in SLP(Crl.) No. 4887/2024 (filed by M.R. Ajayan) and dismissed the appeal in SLP(Crl.) No. 7896/2023 (filed by Antony Raju). The citation is 2024 INSC 881.

THE PLAY: If a court directs an investigation into tampering with its own evidence, the bar under Section 195(1)(b) CrPC does not apply — the court's own order satisfies the requirement of a complaint.

The underwear that didn't fit an Australian drug convict in 1990 will now be examined in a trial court in Kerala, three decades later. The smell of old paper and the weight of a file that has travelled from Thiruvananthapuram to the Supreme Court and back will once again be opened in a magistrate's courtroom in Nedumangad.