Kerala Police Vs ED: Kerala High Court Directs Police To Submit Case Diary To Special Judge To Decide On Section 340 Inquiry Against ED

"..the remedy of the aggrieved persons was to approach the Special Court..", Justice VG Arun ruled.

Since the offence of creation of false evidence was related to a "proceeding in a court"(as the Special Court had taken cognizance of ED's final report), the police could not have registered FIR due to the bar under Section 195(1)(b)(i) of the Code of Criminal Procedure. Only the Court which is seized of the matter can act with respect to such allegations, as per the procedure under Section 340 CrPC.

Although the FIRs have been quashed, the Court has directed the materials collected by the Crime Branch to be placed before the Special Court in a sealed cover. The Special Court can decide on the further course of action to be take with respect to such materials.

"The Investigating Officers shall forthwith submit all records pertaining to the crimes before the Special Court in a sealed cover. The learned Special Judge can look into those records and other materials, if any available, while deciding whether it is expedient to conduct an enquiry", the Court ruled.

The Court's Reasoning

The offences alleged in the FIR and the bar under Section 195(1)(b)(i) CrPC

In the first FIR, unnamed officials of the ED have been booked for abetment, conspiracy, framing incorrect documents with intent to cause injury, fabrication of false evidence and threatening accused Swapna Suresh to give false evidence (sections 116, 120B, 167, 192, 193, 195A of the Indian Penal Code). The second FIR offences omits the offences of conspiracy and the punishment for fabrication of false evidence (sections 120B and 193 of the IPC).

The Court held that the FIR could not have been registered for the offence under Section 193 IPC. Although other offences were congiznable, the Court said that theywere undoubtedly interwoven with and inseparable from the offence under Section 193 of the IPC. This was so since the allegations were that attempts were made to fabricate false evidence and to coerce and threaten the accused to give false statements.

It may be pertinent to note that, if such attempts had fructified, it would have definitely sullied the proceedings of the court and impacted administration of justice, the Court held relying on Basir-ul-Huq v. State of W.B.

Therefore, a court would not be able to take cognizance of the offences save upon a complaint made by the court or a court subordinate to it.

"The purpose behind the enactment of Section 195 being to ensure that the proceedings of the court are not sullied, nor the administration of justice not meddled with, if the other offences are interwoven and inseparable from the offences within ambit of Section 195(1)(b)(i), necessarily, the prohibition will have to be extended to the other offences also".

What happens when offences are barred under Section 195(1)(b)(i) of CrPC

However, the High Court pointed out that the remedy under Section 340 CrPC was available in case the Crime Branch had a case that evidence was being fabricated or that the accused were coerced.

Referring to the provision, Justice Arun underscored,

"it is evident that any aggrieved person can alert the court about commission of a crime committed with intent to mislead the court or to scuttle the proceedings pending before it and that, even in the absence of any complaint, the court is at liberty to take action, on receiving information regarding commission of offences enumerated under Section 195(1)(b)".

In ruling this way, the Court relied on N. Natarajan v. B.K. Subba Rao where the Supreme Court made some pertinent observations on the right of any aggrieved citizen to approach the jurisdictional court under Section 340. In the case, the Supreme Court had held that Section 340 CrPC is invoked to get over the bar imposed under Section 195 CrPC.

The Supreme Court had in the case also stated,

"we fail to see how any citizen of this country cannot approach even under Section 340 CrPC. For that matter, the wording of Section 340 CrPC is significant. The court will have to act in the interest of justice on a complaint or otherwise."

Against this backdrop, Justice Arun reasoned that the jurisdictional court (in this case the Special Court), when being faced with an application or otherwise alleging offences affecting justice, could conduct a preliminary inquiry and form an opinion about whether it was required.

"Further, if convinced about the need for an enquiry, the court can record its finding to that effect and make a complaint in writing and send it to the magistrate of first class having jurisdiction", the Court held.

Therefore, the Court ultimately said,

In my considered opinion, while interdicting the Police from continuing the investigation, interest of justice requires that the Special Judge be permitted to look into the materials collected by the Crime Branch, treating it as the information mentioned in Section 340(1), so as to decide whether it is expedient to conduct an enquiry.

The Investigating Officers of the Crime Branch were thus directed to forthwith submit all records pertaining to the crimes before the Special Court in a sealed cover for the Special Court's consideration.

"Though the petitioner's action is liable to be deprecated, that does not warrant dismissal of the writ petition"

The State had opposed the manner in which documents pertaining to the ED case was produced in the ED's writ and that persons who were not parties were named in the writ petition. During the proceedings, the ED had explained that the documents formed part of the complaint in the gold smuggling investigation.

Remarking that the action is liable to be deprecated, the Court posited that the entire set of documents appended to the complaint ought to have been produced, rather than just documents of his choice.

However, this did not warrant dismissal of the writ petition, the Court stated at the outset of its judgment.

"...petitioner ought to have produced the entire set of documents appended to Exhibit P5 complaint, rather than producing the documents of his choice. Even though the petitioner's action is liable to be deprecated, that does not warrant dismissal of the writ petition".

An additional contention that the petition was filed by the Deputy Director of the ED Kochi Zone in his individual capacity was also not accepted by the Court.

"The fact that the writ petition is filed with official sanction is evident from the appearance of the learned Solicitor General", the court said.

On these terms, the petitions were disposed.