The Hindu : Kerala News : Copy of AG's legal opinion released

Online edition of India's National Newspaper
Tuesday, Apr 27, 2004

Kerala

Kerala

Copy of AG's legal opinion released

By Our Special Correspondent

THIRUVANANTHAPURAM, APRIL 26. The Chief Minister, A. K. Antony, today joined issue with the CPI (M) leader, Kodiyeri Balakrishnan, to prove the veracity of his statement regarding tabling in the Assembly the Advocate General's opinion on ordering a CBI inquiry into the Marad case.

Mr. Antony hit back in good measure given the sensitivity of the Marad issue and the demand for a CBI inquiry at a press conference in Thrissur today and minutes later, his office released the copy of the AG's legal opinion along with the written reply he had given to the starred question in the Assembly on January 1, 2004.

The Chief Minister lost no time in preventing the CPI (M) leaders from taking political capital out of the sensitive issue, especially to the aspect relating to the ordering of a CBI inquiry into the Marad issue. The question of ordering a CBI inquiry had been left to the Cabinet to decide after examining the legal issue involved. This had been one of the terms of the agreement arrived at between the various organisations that participated in the conciliatory dialogues. Mr. Balakrishnan had threatened to slap a breach of privilege on the Chief Minister for allegedly "misleading" the public by claiming that the AG's report had been tabled in the Assembly. The CPI (M) leader had claimed that the report was not tabled and the Government had only referred to the terms of agreement in its reply in the Assembly.

The AG, in his report released by the Chief Minister's office today, referred to several Supreme Court verdicts and pointed out that once the court has taken cognizance of a case, the request for further collection of evidence could be made only by the investigating agency and when the Magistrate permits the investigating agency to conduct further investigation, it can be done only by the same agency and not by a different one. The AG had also expressed fears that the entire case may end in acquittal, in case a different agency were to take up inquiry and arrive at a different conclusion. The AG was asked to give his opinion on two issues: whether the Government could collect further evidence if any regarding the conspiracy aspect which led to the commission of the offence (the Marad murders), and whether the Government could under law entrust such an investigation to a different agency such as CBI.

In the Marad case, he noted, the prosecution had already charge-sheeted the 142 accused under various penal provisions before the Kozhikode Judicial Magistrate's court. As per the charge-sheet pending in the court, the prosecution's case is that the accused entered into a criminal conspiracy and agreed to do an illegal act. He pointed out that the prosecution had committed itself not only to the motive, but also to the conspiracy by giving the exact date, time and place of meeting and other details regarding the hatching of conspiracy for the commission of offence. But if further investigations were to reveal that the conspiracy to commit murder is elsewhere and the conspirators were different persons and the date of conspiracy was different, it would be detrimental to the entire prosecution case and may lead to the real culprits being discharged.

In his opinion, legally and factually, it was not possible and would not be conducive in the interest of the case to hand over the prosecution to any other agency.

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