Kerala High Court Refuses To Stay Police Investigation Against ED; Restrains Coercive Action Against Officials
The Kerala High Court on Wednesday refused to stay the investigation in the FIR registered by the Kerala Police crime branch against "unnamed officials" of the Enforcement Directorate(ED) for allegedly coercing gold smuggling accused Swapna Suresh to make false statements against the Chief Minister and other State Ministers.The Court however directed that no coercive steps should be taken by...
The Court however directed that no coercive steps should be taken by the police in the case till the next date of hearing, April 8. The Court also recorded the undertaking by the Public Prosecutor that no official witnesses have been called and will not be called till the next hearing date in connection with the case.
Solicitor General Tushar Mehta vehemently pressed for an interim stay on the investigation before a bench of Justice VG Arun. The top law officer of the Union Government submitted that each day's investigation was weakening the evidence of the ED in the gold smuggling case. Not only the ED case was being affected, but also the cases of Customs and NIA were also getting affected, the SG submitted.
After a day long session, when Justice Arun said that he will not be able to complete the hearing today, the Solicitor General made a fervent plea for stay :
"The investigation which is going on everyday weakens not only the ED case, but also the Customs case, NIA case. It is irreversible damage. Comparative hardship may be seen. The incident is of August. The FIR is of March. The police is the complainant. I am pressing for the interim order. No prejudice will be caused if they halt the investigation for ten days. They waited for seven months for FIR", the SG said.
However, Justice Arun said that it will be known only after the hearing how far the police case is affecting the ED case.
"We have to see the outcome of the hearing, to ascertain how far it is affecting the ED case", the judge said.
The order passed by the bench after the hearing recorded as follows :
"As the matter is being adjourned due to the paucity of time, I deem it appropriate that the investigating agency does not proceed with coercive steps in respect of the proceedings pending before this court. Post on April 8".
After the order was dictated, Senior Advocate Harin P Raval, who argued for the State Government today, said that the police will continue with the investigation.
"That is adding insult to injury", retorted the Solicitor General.
At this point, Central Government Counsel Suvin Menon told the bench that a Customs official named Aishwarya Dhongre was called by the police today morning.
This submission was refuted by Senior Public Prosecutor Suman Chakravarthy. He said that no official witnesses have been called.
The Solicitor General urged the bench to direct that no official witnesses will be called till the next date.
The bench then recorded in the order an undertaking made by the Prosecutor that official witnesses will not be called till the next date.
The hearing started at 11 AM today, with Solicitor General Tushar Mehta opening the arguments. He submitted that the issue of "cooperative federalism" was involved in the case and law never contemplated one investigating agency examining the correctness of evidence collected by another agency. If the FIR is permitted, it will mean that no central agency can investigate in a state fearlessly and independently(Detailed account of SG's arguments may be read here).
ASG's submissions
At the afternoon session, Additional Solicitor General SV Raju continued the arguments.
He submitted before the Court that by invoking Section 116 IPC, the FIR itself admits that no offence is made out as 116 can be invoked only if the offence is not committed. Therefore, there is an admission that offence has not been committed. There is not a whisper in the FIR that an incorrect document has been framed. The ingredients of Section 167 IPC are also not made out.
"FIR is vague. It has nothing. Neither head or tail. It makes out no offence." ASG remarked
In the entire FIR, not a statement is made that any false entry has been made, any document containing false statement has been made.
ASG added that Section 192 IPC is not made out. In any case, it is a definition section and not a punishing section. Next offence is Section 193 IPC for which the first requirement is that someone should give a false statement in a judicial proceeding.
"What is 'false evidence'? That is defined in Section 191 IPC. That is not made out. They are not proceeding on the basis of statement under 50(Sec 50 PMLA). One can understand if it was based on 50. They have not acted on the basis that it is a Section 50 statement." ASG Raju stated.
He continued with his submissions stating that promising someone to be made an approver is not a threat and if there is no threat, Section 195A IPC is lodged out. As there is no threat to any person, or to reputation or property with the intent to coerce to give false evidence, prima facie 195A IPC is not made out.
ASG Raju added that Section 195A is added in the IPC to deal with hostile witness and is applicable only to a witness. Unless a person enters the witness box, he won't be a witness and therefore 195A is not applicable
Section 195A is not applicable to alleged coercion of accused Swapna Suresh as it applies only to a witness giving evidence in court.
"Where is criminal conspiracy? How can you have a case of criminal conspiracy without naming the accused? I'm shocked. There has to be more than one person for conspiracy. Where is the unlawful agreement?" ASG remarked
"How can you have a case of abetment without naming the accused? This is a bogus FIR. The preliminary enquiry is a sham, a farce." ASG further said.
ASG stated that this preliminary enquiry is a sham, an eyewash for the following reasons:
- No accused has been identified
- No offences have been made out.
- No court records are examined. If court records are examined it will be known that women officials were not present.
- Fourthly no statements of ED officials are examined.
- A situation has arisen where the women officials have given statement contrary to court records.
- There is no explanation for the delay. Supreme Court has acquitted persons on the ground of delay.
ASG referring to Solicitor General's submission stated that if this is allowed, this will be a never an ending exercise. ED can file an FIR against Kerala Police and this can go on.
ASG Raju concluded his arguments stating that the preliminary enquiry shows bias, mala fides, therefore this is a fit case for the Court to quash the FIR and protect the ED officials.
He made an additional submission stating that the FIR is stated to have been registered on the basis of legal opinion of the Director General of Prosecution, and having been registered at the instance of the prosecution, it is impermissible.
Senior Adv Harin P Raval appearing for Kerala Govt took objection to the statement made by ASG Natarajan that Customs officials have been summoned by the Kerala police.
"This is a false submission. No Customs officer has been summoned by Kerala police", Raval stated.
Senior Adv Raval submitted that a notice has been issued to the Customs Officer by the Advocate General on a petition seeking sanction for contempt, and police has not summoned anyone.
ASG Natarajan began his arguments stating that it is a matter in which only the trial court can initiate proceedings, and that is the mandate of Section 195 CrPC. He stated that the complaint can only be filed by the court concerned. Therefore, there is a statutory bar to register FIR as per Section 195 CrPC.
He stated that all these offences are non-cognizable and there is a total legal bar for FIR. Assuming that some offences are made out, there is a statutory bar for FIR. On this ground alone, the entire investigation is liable to be quashed.
He concluded saying that there are cases when victims approach court seeking fair investigation, and there are also cases where accused approach court for proper investigation. This is an unprecedented situation where an investigation agency has to approach the Court.
Arguments of the State Government
Sr Adv Harin P Raval appearing for the Kerala Government pointed out the following the broad grounds of his reply:
- The conduct of the petitioner: Conduct of petitioner is relevant for equitable jurisdiction.
- Maintainability of the petition: The FIR is against unnamed officers. One P Radhakrishnan, stating to be an ED official has filed the petition.
- Entertain-ability of the petition and alternative remedies under Section 439: The whole facade created about one agency investigating another agency: Their contention is that the FIR will affect their investigation under PMLA. This is a complete facade. There is no such attempt and no such intent and there will never be.
"My case is that while investigating against those accused, there was an attempt to create false evidence against some high placed innocent persons. Therefore, they are not right to contend that State has no jurisdiction." Raval submitted.
He said that the FIR is not affecting PMLA case. An FIR is not meant to be an encyclopaedia of the entire prosecution case and this is a settled law.
Raval submitted that on 20th November 2020, the Joint Director of ED had written to the Kerala Police, and rightly so, about an audio clip being circulated purportedly of an accused in the gold smuggling case. The petitioner, being Dy Director, should have been aware of this.
He added that based on that, straightaway an FIR could have been registered. The State Police Chief ordered a preliminary enquiry into the alleged audio clip.
"When cognizable offences are disclosed during the preliminary enquiry, is it not necessary to register FIR? A limited legal opinion was sought from none other than the Director General of Prosecution regarding the issue." Raval stated.
Senior Counsel Raval submitted that the petition does not disclose it is filed in official capacity and it is nowhere disclosed that it has been authorized by the Enforcement Directorate. Shockingly, the case documents of the investigation are sought to be used for a private purpose in the petition filed in personal capacity.
Raval argued that the petitioner's affidavit was in public domain before it reached court. The intention is clear, to tarnish the state than to pursue a legal remedy. This is on the point of conduct of petitioner.
"On 17th of March the FIR was filed. Within 6 days they have rushed to this Court. From the armour of the Central Government, an litigation has been launched against an FIR which is at a very very nascent stage." Raval submitted.
Raval submitted even before accused is nominated and informed to the jurisdictional magistrate, they have rushed to the court, with all disputed questions of facts.
"The petition is premature and is an attempt to nip the investigation which is at a very nascent stage." Raval said.
Senior Counsel Raval further remarked "In a federal structure, the central agency officers must respect the honesty and integrity of State police."
He stated that Constitutional courts will not interfere with the investigation at a nascent stage and stifle the prosecution. Investigation is underway, facts are hazy and roles are being investigated.
"Accused has no right to say he has to be questioned before FIR. There is no principle of natural justice at that stage." Raval said.