How Can A Statement Recorded U/S 164 CrPC Be Defamatory? Kerala High Court Reserves Order In Saritha's Plea

The Kerala High Court on Monday reserved its verdict on the plea moved by Saritha S. Nair, the prime accused in the infamous solar panel scam seeking a direction to provide her with copies of the Section 164 statement given by Swapna Suresh, an accused in the diplomatic gold smuggling case.

Justice Kauser Edappagath, while hearing the submissions made by the petitioner's counsel that defamatory statements about the petitioner have been made in the S.164 Statement, raised the question as to how the petitioner would know imputations against her had been made in the S.164 statement without reading it. 

"I accept the contention that it is a public document. But you are a stranger to the case. How are you entitled to a copy of the statement? And how do you know there are imputations against you in the same without reading it? Isn't it merely a presumption?"

When the petitioner alleged that there were allegations against her in the statement and that this amounts to defamation, the Court questioned the legality of such argument.  

"How can a statement recorded under Section 164 be defamatory? It is not in the public domain." 

When the petition came up for hearing, Advocate B.A. Aloor appearing for the petitioner submitted that the statement given by Swapna was a public document and, therefore, the petitioner was entitled to get a copy. It was further submitted that imputations against the petitioner have been made in the S.164 statement, and therefore the petitioner is entitled to get a copy. 

Nair approached the Court, apprehending that certain allegations may have been brought on record against her in the statement given by Suresh. As such, Nair has prayed that the court allow her plea, directing the production of certified copies of the said document to her, failing which she would sustain an irreparable injury, hardship, as well as physical and mental agony.

Today, the counsel argued that the petitioner has compelling reasons to believe that Swapna Suresh has alleged her of having conspired with the Chief Minister and others to trap Suresh after her remarks against the Government. 

At this juncture, Justice Edappagath raised a question as to how the petitioner can be sure that imputations against her have been made in the statement even without seeing it. However, the Court observed that if the petitioner was certain of such imputations being made, then she has a right to the same. 

Advocate K.K. Dheerendrakrishnan was earlier appointed as the amicus curiae in the case to decide the legal question of whether a statement recorded under Section 164 of the CrPC is a public document.

The amicus curiae had submitted on the previous hearing that S.164 Statement only becomes a public document only after cognizance is taken by the court. He further added that the copy of S.164 Statement cannot be handed over to anyone, including the accused, before the filing of the charge sheet. 

The petitioner also contended even though further investigation is ongoing charge sheet was already filed, and a case has been registered in the case, thereby the petitioner is entitled to get a copy.

The Court has directed the ED to inform the progress of the case and information regarding when the statement was given.

Saritha Nair is accused of having duped several influential people to the tune of 70 lakhs, by offering to make them business partners or by offering to install solar power units for them, and receiving advance payments for the same. Swapna Suresh is accused of smuggling 30 kilograms of gold through diplomatic cargo dispatched to UAE Consulate at Thiruvananthapuram.

She had initially moved to the Principal District and Sessions Court of Ernakulam with the same request, but this was denied. Thereby, counsel appearing for the petitioner prayed for the setting aside of the Principal District and Sessions Court order. 

Case Title: Saritha S. Nair v. Union of India & Anr.