ED v Kerala Police : High Court Restrains Coercive Action Against ED Official; Allows Investigation To Continue

During submissions for the Enforcement Directorate (ED), Additional Solicitor General (ASG)SV Raju argued that the FIR was frivolous, vexatious, and baseless.

In its FIR, the Crime Branch accused officials of the Enforcement Directorate (ED) of coercing gold smuggling accused Swapna Suresh into implicating the Chief Minister and other 'influential' government officials in the gold smuggling case and connected cases.

Solicitor General Tushar Mehta asserted that the belated allegations by the Crime Branch raised an inference that the FIR is wrong.

He pointed out that Swapna was in ED custody over two days, on August 12 and August 13, 2020 and was presented before a Court on August 14,  and she did not raise any allegation of being coerced or forced into naming officials.

"An accused who is stated to have been pressurized would have informed the learned Judge on the the first and the only logical opportunity", the Solicitor General submitted.

At that stage, the only allegations raised were that the ED questioned her for hours on end, without breaks, in the absence of female officers. Hastening to add that those allegations had been objected to, the Solicitor General stated,

"The fact of the matter is, before the learned judge, the lady never said that I was coerced, forced or pressurised to name any individuals"

Following this, Swapna herself approached a Magistrate and made allegations implicating the Chief Minister and others, the Solicitor General added.

The statements referred to in the affidavit were made before a Magistrate, and not before officials of the ED, he pointed out.

At this juncture, the Judge posed a query as to the legal validity of the petition filed before the Court on behalf of the ED. Querying why the petition had been filed through a private person and extracted mirror images of material collected by other investigating agencies in the petition, the Court asked the Solicitor General for a clarification.

The Solicitor General responded that the writ petition was filed on behalf of the ED in the petitioner's official capacity. Additional Solicitor General (ASG) SV Raju intervened adding that Section 54 of the Prevention of Money-Laundering Act required officers of Customs, Police, and other Central and State Government Agencies to assist officers of the ED.

After introducing the ED's core legal submission that the Kerala Police's FIR against the ED was contrary to Section 195A of the Code of Criminal Procedure and that any cognizance of the same would be barred under Section 195(1)(b)(i), the Solicitor General informed the Court that he had to leave the hearing for a meeting.

Resuming submissions on behalf of the ED, ASG SV Raju submitted to Court that the two female police officers who asserted that Swapna was being coerced by ED Officials were later discovered as not being present in the vicinity of the interrogation.

He continued, saying,

"Later, Swapna herself approached the Court seeking protection in prison. In fact, the submission that the constables were not present was made by Swapna's counsel, (this is) as good as a statement from the lady."

ASG SV Raju then proceeded to refer audio recordings where Swapna is alleged to have stated that she was coerced into implicating 'influential' persons. Asserting that she never admitted to the statements in the recording, though she identified her voice in the same, ASG emphatically stated that the FIR and the allegations therein were baseless.

Cognizance of FIR barred by Section 195(1)(b)(i) of the Code of Criminal Procedure

After this, ASG Raju continued on the legal submissions introduced by the Solicitor-General. For this, he referred Section 195-A of the Indian Penal Code which penalises threatening a person to give false evidence.

He submitted that Section 195(1)(b)(i) of the Code of Criminal Procedure barred taking cognizance of offences connected with and in relation to court proceedings except on a complaint made on behalf of the concerned court.

"Therefore, we argue that cognizance could not have been taken on this FIR as the matter relates to an offence connected to and in relation to a court proceeding, he submitted.

 

On this count, ASG Raju pointed out that Section 195A of the Code of Criminal Procedure used the term complaint as opposed to FIR when prescribing a procedure to institute proceedings for Section 195A IPC offences.

When the Court indicated that hearing could resume after a break, Senior Public Prosecutor Suman Chakravarthy sought time to get instructions and present submissions.

At this, the Court asked why he had not raised this submission earlier, before the Solicitor General and the ASG made submissions.

"The Senior Counsel were arguing, I did not want to interrupt. The petitioner has no apprehension of arrest", he responded.

After recording that since the State had sought more time, there could be no apprehension of coercive action being taken pursuant to the FIR, the matter was adjourned to Tuesday.

ASG Raju is expected to continue his submissions at the next hearing.