Kerala Police To Not Investigate Second FIR Against ED Till High Court Hears Case Tomorrow

The Kerala Police on Wednesday undertook before the Kerala High Court that no further steps will be taken with respect to the investigation in the second FIR registered by it against unnamed officials of the Enforcement Directorate alleging coercion of an accused in the gold smuggling case to make implicating statements against the Chief Minister Pinarayi Vijayan.

This development took place in a fresh writ petition filed by Deputy Director of ED Kochi Zone, P Radhakrishnan, challenging the FIR registered by Kerala Police Crime Branch on March 27 based on an alleged audio clip of Sandeep Nair, an accused in the gold smuggling case.

The High Court is scheduled to hear tomorrow an earlier writ petition field by the ED Deputy Director challenging a previous FIR registered on the basis of alleged coercion of another accused in the gold smuggling case, Swapna Suresh.

Today, Solicitor General of India Tushar Mehta appeared before a bench of Justice VG Arun via video conferencing seeking stay of investigation in the second FIR, which he said was based on the same allegations as in the first FIR.

Public Prosecutor Suman Chakravarthy sought for an adjournment till tomorrow saying that Senior Advocate Harin P Raval, who is appearing for the State Government, was engaged in another Court.

While the bench agreed to post the matter tomorrow, it said that investigation in the second FIR has to be deferred.

"Till then don't proceed with the matter. There has to be some deference to the court. We were in the midst of hearing the other case", Justice Arun told the Prosecutor.

The Prosecutor replied that the both the FIRs were different. "This case is entirely different,  based on a clip of Sandeep Nair. The other case is based on a clip of Swapna Suresh", he submitted.

"But the legal issue in both the cases is the same", Justice Arun responded.

"These two FIRs are not connected with each other, they are related to different persons. At least till tomorrow, adjourn the matter. Until then no arrest is going to be made, no seizure is going to be made. If any order is passed without hearing the senior counsel, it will be damaging. Kindly give time till tomorrow", the Prosecutor pleaded.

"Defer the investigation till tomorrow", the bench said again.

 "If nothing will happen till tomorrow, what is the need for interim order?", the Prosecutor replied.

"If nothing was going to happen, what was the hurry in registering the FIR?", the Solicitor General interjected.

After this brief exchange, the bench passed the following order, based on an undertaking by the Prosecutor :

"The learned Solicitor General appearing for the petitioner submitted that considering that his court is considering the legality of the FIR registered by the State Police against another investigation agency, the further proceedings based on the second FIR based on the same allegations be stayed.

The learned Public Prosecutor submits the FIRs are based on different set of facts. He also submits that in deference to this court, no further steps with regard to investigation of the crime in the instant writ petition will be taken till the matter is taken tomorrow.

It is clarified that the matter will be considered on merits along with the connected petition"

In its fresh FIR, officials of the ED have been booked for abetment, framing incorrect documents with intent to cause injury, fabrication of false evidence and threatening accused Sandeep Nair to give false evidence (sections 116, 167, 192, 195A of the Indian Penal Code).

Among reliefs sought, the petition calls for the records of all those who have visited the various accused in the gold smuggling case lodged in prisons across the State.

Radhakrishnan had previously challenged the initial FIR filed against ED Officials in a writ petition filed before the High Court. The fresh petition prays that the contents of the previous petition be deemed as incorporated in the fresh one moved today.

In the first FIR, the Crime Branch had accused unnamed officials of the ED of coercing accused in the gold smuggling case Swapna Suresh into implicating the Chief Minister and other 'influential' government officials in the gold smuggling case and connected cases.

Describing the second FIR as a part of a conspiracy to derail the investigation, it is additionally argued that the same is an abuse of process of law and a clear attempt to overreach the pending proceedings before the Court and orders passed therein.

"It smacks of mala fides and demonstrates clear abuse of process of law warranting quashing of both the FIRs.

The petition also assails the correctness of the filing of the second FIR, averring that the second FIR also related to the same offence/occurrence alleged in the first FIR. The law was settled that there can be no second FIR and consequently no fresh investigation of every subsequent information, it is contended, based on TT Antony v. State of Kerala and Amitbhai Anilchandra Shah v. CBI.

The Deputy Director also questions an Order dated March 31, 2021 of the Additional Sessions Court, Ernakulam allowing the State Police to question and record Nair's statement at the Central Prison Trivandrum, contending that the order is wholly illegal.

Therefore, the petition prays for:

- Quashing of the second FIR filed by the Crime Branch, Alappuzha

- Quashing of the Order of the Additional Sessions Judge, Ernakulam

- Records of all visitors who called on various accused in the gold smuggling cases

- Alternatively, a transfer of the investigation of offences alleged in the FIR to the Central Bureau of Investigation.

The High Court is presently seized of Radhakrishnan's petition in relation to the first FIR, in which the Court has directed that no coercive steps should be taken by the police in the case till the next date of hearing. The investigation, however, has been permitted to continue.

Solicitor General Tushar Mehta and Additional Solicitor General SV Raju appeared for Rahdakrishnan in the hearing of the first writ petition while Senior Advocate Harin Raval represented the State of Kerala.