ED v Kerala Police : High Court Reserves Judgment In Pleas Against Crime Branch FIRs

The Kerala High Court today closed hearings of the writ petitions moved by the Enforcement Directorate challenging FIRs lodged against its officials by the Kerala Police.

Expressing that the hearing had been a pleasure, Justice VG Arun informed the counsel that he would try to pronounce judgment by April 16, if possible, inspite of the Court being on vacation.

In the meanwhile, the interim order issued on the first petition and the state's undertaking in the second writ petition will continue, the Court said.  

The petitions filed by P Radhakrishnan, Deputy Director of ED (Kochi Zone) challenge FIRs lodged against officials of the ED for allegedly coercing gold smuggling accused Swapna Suresh and Sandeep Nair to make false statements against the Chief Minister and other State Ministers.

The last leg of the hearing on Friday, saw Senior Advocate Harin Raval for the Kerala Police conclude his submissions on the question of whether the two FIRs filed were related to each other.

Following Senior Advocate Raval's concluding submissions, Solicitor General Tushar Mehta, Additional Solicitors General SV Raju and KM Nataraj presented their arguments in rebuttal and additional submissions in respect of the second FIR.

Continuing his arguments from yesterday, Senior Advocate Raval averred that the FIRs in the two cases were distinct and that there are two separate FIRs, "they are not the same incident, there is no sameness and that the two FIRs are not connected"

The Senior Advocate further contended that the writ petitions were filed mala fide after the Additional Sessions Judge allowed the Crime Branch's application for a recording of Sandeep Nair's statement under Section 164 of the Code of Criminal Procedure.

In their rebuttal submissions, both the Solicitor General (SG) and ASG Raju raised the contention that neither Swapna Suresh or Sandeep Nair had alleged that they were coerced when they were presented before the jurisdictional court.

Averring that the two were not coerced, SG Mehta said "There is a judicial finding (that they were not coerced)". In this respect, he posed the question of whether the Kerala Police could investigate the correctness of Swapna's statement made before the judicial officer or statements allegedly recorded by "two invisible lady officers".

SG Mehta proceeded to address Senior Advocate Raval's submission that the two FIRs were not identical or from the same set of facts.

Reading from the Kerala Police's documents, he noted that Swapna's FIR was lodged by police, and that the FIR states 'from media reports it is learned that Sandeep Nair has written to Additional Sessions Judge Ernakulam alleging a similar offence, the entire matter has to be investigated'.

Laying emphasis on the words 'entire matter', the SG stated that the words connoted that the whole issue was a single matter, "Therefore question of whether it is same or identical does not arise!", he said.

On this note, ASG Raju took over arguments from SG Mehta and rebutted the judgments that had been relied upon by Senior Advocate Harin Raval.

Raising doubts about the credibility of the two FIRs, the ASG stated, "Neither Swapna or Sandeep made such a complaint (of coercion) before a Magistrate, this strikes at credibility of complaint".

On the question of whether two FIRs were permissible, ASG Raju referred judgments TT Antony v. State of Kerala and Ram Narain. In this respect, he argued that two FIRs were permissible only in a counter-case, and not where the FIRs were the same.

"Sandeep was already there, so no discovery, no different version, it's the same thing, same wine in different bottle..I can understand if Sandeep was not in the first picture .. If test of sameness is applied, second FIR has to go. The first FIR has Swapna and Sandeep, you cannot pick out Sandeep from the first FIR and say the two FIRs are different," ASG Raju argued

Referring to Amitbhai Anilchandra Shah vs CBI (Sohrabuddeen Case), he emphasized the principle iterated in that case - "Once you have treated it as one conspiracy, you cannot have it as two conspiracies".

He additionally argued that the FIR had to disclose cognizable offences.

"You cannot say FIR can be a blank piece of paper…A FIR must disclose prima facie that a cognizable offence is committed", he said, in addition to his other submissions.

ASG KM Nataraj restricted his arguments to whether the Court could take cognizance of non-cognizable offence Sections 192 punishable under Section 193 of the Indian Penal Code. After referring judgments, he asserted that the Section 195(1)(b)(i) of the Code of Criminal Procedure would operate as a bar against taking cognizance of the non-cognizable offence punishable under Section 193 of the Indian Penal Code.

The complaint under Section 195A of the Indian Penal Code could only be presented by a witness under Section 195A of the Code of Criminal Porcedure, he stated.

Shortly before the Court closed arguments, Senior Advocate Raval made short rebuttals on the arguments made by the three-senior counsel for the ED.

He stated that he never stated that the FIRs in question did not disclose cognizable offences. To ASG Nataraj's submission that Section 192 and Section 193 of the Indian Penal Code were not cognizable, he pointed out that Section 154 of the Code of Criminal Procedure allowed a police to treat as cognizable offences when one or more cognizable offences were disclosed.

He additionally argued that the question of credibility of witnesses (in reference to the women constables who averred Swapna was coerced) cannot be examined under Article 226 of the constitution.

With reference to Section 195(1)(b)(i) of the Code of Criminal procedure, the Senior Advocate contended that the bar operates only at the stage of cognizance not at the stage on investigation.

After these submissions were presented, the hearing was closed.