Kerala High Court: In a petition for transfer of investigation of a case to Central Bureau of Investigation (‘CBI’), alleging the operation of a transnational gang involved in forced hormone therapy, Bechu Kurian Thomas, J., dismissed the petition while observing that the involvement of CBI should be exercised sparingly and only in exceptional circumstances, and that the present case was devoid of any evidence to warrant involvement of the CBI.
Background
The petitioner is the complainant in the matter related to offences punishable under Sections 420, 468, and 471 of the Penal Code, 1860 (‘IPC’) (‘corresponding Sections 318, 336 and 340(2) of Nyaya Sanhita, 2023 respectively), apart from Sections 66(c) and 66(d) of the Information Technology Act, 2000 (‘IT Act’).
It has been alleged by the petitioner that he and his wife became privy to the information that their minor son’s photograph was being used by the accused for crowdfunding on the crowdfunding platform ‘Milaap’, misrepresenting themselves as parents of the minor, for a hormone replacement therapy for the minor boy. The petitioner immediately intimated Milaap about the illegal acts of the accused and requested that his son’s profile be taken down. Based on this information, an FIR was registered alleging that the accused created a profile in the name of ‘support-rosetta’ and started collecting funds for the alleged treatment of the petitioner’s minor son and cheated the public and others.
It was submitted by the petitioner that even after filing of the FIR, the investigating officer had not carried out proper investigation, and it was further alleged that, despite the State having filed an affidavit before the Supreme Court, stating that a ‘transnational forced gender change gang whose whereabouts are required to be ascertained’, was in existence, no effective investigation had been carried out.
It was contended by the petitioner that a scientific and specialized investigation was required in the matter to determine all aspects, including the illegally gained money by the accused, and further alleged that the present investigation officer was not equipped to carry out such an investigation.
The State contended that the investigation was being carried earnestly, and stated that the son of the petitioner, who attained majority before filing of the FIR by the petitioner, had attained majority and made a statement under Section 164 of the Criminal Procedure Code, 1973 (‘CrPC’) (corresponding Section 183 of Nagarik Suraksha Sanhita, 2023), that he was transgender female, who wanted to take female hormones before he turned 25 and since he had no money, at his request, a fundraiser ‘support-rosetta‘ was started on Milaap, by an online friend to help him.
The State further pointed out that although the petitioner’s son had approached the accused for crowdfunding for hormone therapy, he ratified these acts upon attaining majority.
It was stated by respondent 5 that she neither had any criminal antecedents, nor was she a part if any gang and had no knowledge of any international racket of carrying out forced hormone therapy. She further submitted that she had helped the petitioner’s son without bearing in mind the consequences and had done so, innocently.
It was submitted by the CBI that there was no material to indicate the existence of any transnational gang or racket, hence, interference by the CBI was no warranted.
Decision and Analysis
Upon hearing the parties, the Court noted that at the initial stage, the State had said that respondent 5 was involved with a transnational gang indulging in forced hormone therapy, whose whereabouts was to be ascertained, and that respondent 5 organized the fundraiser for petitioner’s minor son, without disclosing any information to the petitioner or any other legally competent entity. However, during investigation, the petitioner’s son, who had attained majority, gave his statement under Section 164 of the CrPC blaming his parents, which presented a different picture. The Court said even though in a trial a statement under Section 164 of the CrPC could only be used to corroborate or contradict the witness and was not substantive evidence, but for the purpose of investigation, the statement could act as a guide for the investigating officer to a certain extent, as such statement became a part of the case record. The statement by the petitioner’s son also indicated that even though the money was collected, the same was refunded after his parents filed the complaint.
The Court referred to the statements made by the petitioner’s son and observed that the allegations of the existence of a transnational racket were merely bald and unfounded statements and there was no material put forth to substantiate the same.
The Court referred to the decision in State of W.B. v. Committee for Protection of Democratic Rights, West Bengal, (2010) 3 SCC 571 wherein it was held that the extraordinary power to order an investigation by CBI must be exercised sparingly, cautiously and in exceptional circumstances, where it becomes necessary to provide credibility and instil confidence in investigations, and should only be exercised when an incident may have national and international ramifications.
The Court stated that although it had been portrayed, based on the affidavit of the State, that the incident led to the registration of a crime that had transnational ramifications, but based on the evidence available, the circumstances did not warrant an investigation by the CBI.The Court, therefore, dismissed the petition.
[X v. State of Kerala, 2024 SCC OnLine Ker 3626, decided on 08-07-2024]
Advocates who appeared in this case :
Advocates for the petitioner: G. Keerthivas Giri, Anil Kaushik (Sr.), Lakshmi Das, Advocates
Advocates for the State: M.C. Ashi, Public Prosecutor, Dr. Farrukh Khan, Sohail Mohammed Ansary, Ameena. R, Poornima S. Nair, Sreelal Warrier, Advocates
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