ED Officer's Writ Filed With Ulterior Motives, Hidden Agenda: Kerala Govt Tells High Court

The Kerala Government has filed its counter affidavit against the writ petition filed by P Radhakrishnan, Deputy Director of the Enforcement Directorate (ED) challenging the investigation instituted by the Kerala Crime Branch into allegations of Swapna Suresh being forced into implicating the Chief Minister and others in the smuggling case.

In its counter, the Kerala Government charges the ED that it had ulterior motives in filing the writ petition and publishing statements made by the various accused during the course of its investigation into the gold smuggling scam and its various manifestations.

In this respect, it is averred,

It is amply clear that the writ petition has been instituted with an ulterior motive, with some hidden agenda, apart from mere challenging of the FIR and the investigation which is being undertaken by the State Police. Barring few averments in the writ petition, seemingly the attempt of the petitioner, in filing the writ petition, is to put up various allegations, speculations and rumours, that have been tossed up in the air in relation to the recent investigations in the State by the Central Agencies, to the public arena, through production of some legally unsustainable documents, so as to malign and to make imputations against even some highly reputed persons in the political arena of the State, who are not parties to the proceedings.

Also, it is stated,

"Production of documents…is with ulterior motives and malafide interests, which is particularly discernible from the manner in which these documents have been leaked to the media"

The submissions in the rather extensive counter affidavit may broadly be categorised as

• Submissions on procedure and propriety
• Submissions on facts
• Submissions on law

Submissions on procedure and propriety

Firstly, the affidavit asserts that the writ petition is not maintainable on law or facts

The Crime Branch raises concerns about the legality of the petitioner filed the writ petition in his personal capacity through a private lawyer, when 'he is not figured as an accused in the said FIR and no report has been filed against him in jurisdictional court'.

The counter also raises the question of whether it is proper for the petitioner to have produced statements which came into his possession in his official capacity for making use of it for his personal purposes.

It is stated,

" It is not expected of an officer of the Government to make use of the documents which he has access by reason of his official capacity, for redressal of his personal grievance.

It is also said,

"It seems that the case file of investigation was made available to private persons who are not involved in the investigative process, for the personal gain of the petitioner to file this Writ Petition."

Again asserting that the petitioner is attempting to make use of the process of the court for reasons best known to him alone, it is urged that the documents produced (WhatsApp conversations between accused M Sivasankar and Swapna Suresh) "have no bearing on the facts and circumstances and the subject matter of this Writ Petition and FIR".

They have "been only made to divert the attention of this Court and gain media attention", it is submitted.

Questioning the manner in which the documents have been marked, the counter states that the procedure of producing documents is contrary to Rule 147(2) of High Court Rules, 1971,

It is also asserted that the statements produced are not statements under Section 50 of the Prevention of Money-Laundering Act (PMLA) because the provision requires the any person with information to be summoned and statements given voluntarily, whereas Swapna Suresh and others whose statements were recorded were in custody. These statements had previously been produced in Court in a sealed cover but now has been made public by unauthroisedly producing oit along with the writ petition.

Therefore, when arguing that the production of documents has no role in determining whether the bar of Section 195 is to apply, the counter also states,

"Court may be pleased to consider as to whether the petitioner has any illegal intention in revealing the materials which he came into possession by reason of his official capacity to the public (by producing the same before the court through a private lawyer) since as aforementioned – documents have no bearing on issues in writ…Petitioner is liable to be dealt according to law for having produced what he ought not to have produced."

Submissions on facts

The Crime Branch argues that the Audio clip wherein Swapna Suresh raised allegations of being coerced into implicating the Chief Minister was authentic. The ED made request to DGP for inquiry relating to leak of alleged clip, it is revealed. Swapna on two occasions one to the police and once during a preliminary inquiry admitted to the voice in the recording being hers.

Additionally, to the second averment that the women officers who backed up Swapna's claims were not present or stationed on duty, it is countered that a Special Investigating Team investigated claims of women officers who were on escort duty and witnesses. They corroborated the contents of the audio clip, it is stated. When suresh was interrogated without women officers of ED, WCPOs who were on protection duty entered the interrogation room,/ Prima Facie offences are disclosed and police duty bound to register an FIR and investigate, it is said.

To the statement that Swapna Suresh did not make these claims of coercion earlier, the Crime Branch states that Swapna Suresh was in the custody of central agencies and being produced in the courts from their custody.

"In such circumstances, the fact that Swapna Prabha Suresh did not make any complaint before the Sessions Court when she was produced before that court could not be taken as a ground for quashing the FIR and the reasons for non making statement and whether there was any coercion from the central investigating agencies on her, can also be a part of investigation."

The ED's averment that Sivasankar used state agencies to influence is denied outright in the counter.

Additionally, the counter states that the manner in which the women constables' statements got leaked to media also justifies investigation.

Submissions on legality

It is averred that the statements produced by the ED under the PMLA are not proceedings concerned with courts since the authority specified in Section 48 of PMLA is not court. Even though it has authority to summon, administer oath or record statement, this is only for limited purpose of investigation, it is stated. The counter additionally argues that the PMLA does not declare authority as a 'court'.

On applicability of Section 195(1)(b)(1), it is asserted that no amendment makes section 195A IPC part of barred offences under Section 195 CrPC. It is stated that a 2006 Act makes amendment to Schedule 1 CrPC incorporating Section 195A making it cognizable, therefore police can investigate by registering FIR.

On the mechanism of how procedure under Section 195A CrPC on offences of Section 195A IPC is instituted it is stated that witness or any other person can file complaint in relation to offence under Section 195A. Therefore, the affidavit argues that contentions on section 195 untenable

Stating that contention of the petitioner based on Section 197 CrPC too premature, because bar under Section 197 CrPC is only against taking cognizance and not investigating cognizable offences.

Averring that the investigation was at a nascent stage and hazy, it is asserted that the writ petition filed by ED is highly premature petition and tended to directly interfere with how the investigation has been conducted.

Where any material is gathered in the course of investigation be it in the statements of the co-accused or otherwise, discloses the commission of a cognizable offence, police can investigate, it is vehemently submitted.

The ED's prayer seeking a transfer of investigation to CBI, is termed contrary to the prayer to quash the FIR. Accused has no right to dictate the manner in which the investigation is to be conducted, cannot choose an investigating agency of his own choice nor can impeach the credibility of the present investigating agency, it is averred.

 The report has been filed through Senior Government Pleader Suman Chakravarthy

ED's petition is expected to be taken up on Tuesday.

Read a report on the ED's petition here.

Read an account of the previous hearing here.