THOMAS S/O. MATHEW Vs. NANDAKUMAR NAIR AND

JUDGEMENT

(1.) THE petitioner, who is the father of late Sister Abhaya has filed this Contempt Case (Civil), alleging that the respondents, who are Deputy Superintendent of Police, C.B.I., Kochi and former Assistant Director, Forensic Science Laboratory, Bangalore, respectively have wilfully disobeyed the directions of this Court in the Order dated 1.1.2009 in Bail Applications No. 7311 and connected applications in Crime No. RC8(S)/93/SPE/KER/CBI. In the said bail order, a copy of which is produced as Annexure A1, it was held by this Court as follows:

(2.) THE petitioner in his contempt application has pleaded as follows: In the light of the directions in Annexure A1, the petitioner filed Crl.M.P. No. 120/2009 in the aforementioned crime before the Chief Judicial Magistrate's Court, Ernakulam, praying to issue a search warrant in favour of the investigating officer of the C.B.I. to search and seize the original unedited video tape containing the Narco Analysis tests of all the three accused from the custody of the second respondent herein. When the above petition came up for consideration before the learned Chief Judicial Magistrate, it was submitted on behalf of the C.B.I., that they were taking all steps to retrieve the original unedited video tape. Taking note of the said submission, the petition was adjourned. Thereafter, the investigating officer visited Bangalore, contacted the second respondent for getting the original video tape. The second respondent handed over three video tapes to the investigating officer stating that they were the original unedited video tapes. Believing the statement of the second respondent regarding the tapes, the first respondent produced the same before the Chief Judicial Magistrate's Court, along with Annexure A2 report. On the request of the CBI, C -DAC, Thiruvananthapuram was asked by the C.J.M.'s Court to transfer the recording in the video tapes into compact discs in the presence of independent witnesses. Copy of the order is produced as Annexure A3, dated 10.2.2009. Since C -DAC informed that it does not have the facilities for transferring the contents of the video tapes to compact discs, the learned Chief Judicial Magistrate by order dated 20.4.2009 directed the Director, C -DIT, Thiruvananthapuram to carry out the process of transfer of contents of the video tapes into compact discs in the presence of three independent witnesses. A copy of that order is produced by the petitioner as Annexure A4. The Director of C -DIT filed a report before the Magistrate's Court, stating that the video tapes were neither original nor unedited. On knowing this, the petitioner again filed Crl.M.P. No. 6353/2009 in the above crime, to issue a search warrant in favour of the officers of the C.B.I., to search the premises of Forensic Science Laboratory, Bangalore and the house of Dr. Malini to retrieve the original video tapes of Narco Analysis Tests conducted on the three accused. Based on the report of C -DIT, the learned Chief Judicial Magistrate expressed the view that the original version should be produced before the Court. The C.B.I. was granted ten days' time to question the persons concerned and try to retrieve the original CDs and to produce them before the Court. Annexure A -5 is the order passed by the learned Magistrate on 25.6.2009, containing the above directions. But, the C.B.I. filed Annexure A6 report dated 23.7.2009 before the C.J.M's Court detailing the steps taken by them to retrieve the original CDs. It was stated that what is produced by them was the original and the views of the C -DIT, which are given from a videographer's point of view, are not correct. The absence of knowledge of the protocol for Narco Analysis was the reason for submitting such a report by C -DIT, it was pointed out by the C.B.I. The petitioner submits that the stand of the first respondent that the three video tapes handed over to him by the second respondent are original ones and unedited, is incorrect. His conduct of not retrieving the original video tapes of Narco Analysis and the refusal of the second respondent to handover them to the first respondent are contumacious conduct and wilful disobedience of the directions of this Court contained in Annexure A1 order. Therefore, according to the petitioner, the respondents have committed contempt and therefore, are liable to be punished under the provisions of the Contempt of Courts Act, 1971.

(3.) THE first respondent was directed by us to file an affidavit, dealing with the averments of the petitioner in the Contempt of Court Case. Thereupon, the first respondent filed an affidavit, denying the allegations against him. He has stated in the affidavit that all possible steps have been taken by him to retrieve the original video tapes and what have been received by him from the second respondent are the originals. The view of the C -DIT is a videographer's view. The said institution does not know the protocol of Narco Analysis and therefore, it happened to file a report that the video tapes were edited. In the said affidavit, the first respondent has stated as follows: