[Kerala Gold smuggling] ED, State of Kerala war over jurisdiction, federalism before Kerala High Court

The Kerala High Court on Wednesday declined to stay the probe initiated by the Kerala Police against unnamed officials of the Enforcement Directorate (ED) for allegedly coercing Swapna Suresh, the prime accused in the Gold smuggling case, to give statements implicating Chief Minister Pinarayi Vijayan in the case..Single-judge Justice VG Arun, however, ordered that the State cannot take coercive actions against any of the ED officials or call any official witnesses as part of the investigation till the next date of hearing which is April 8..The Court was hearing a plea by ED Deputy Director P Radhakrishnan who had approached the Court seeking quashing of the FIR registered by the State Police or in the alternative, to have a probe by the Central Bureau of Investigation (CBI)..The day long hearing before the Court on Wednesday saw crucial arguments by both sides..Petitioner was represented by Solicitor General Tushar Mehta and Additional Solicitor Generals SV Raju and KM Nataraj.Senior Counsel Harin Raval appeared for State of Kerala. .Below is a summary of the submissions. .SG Tushar Mehta, ASGs SV Raju and KM Nataraj.One of the foremost arguments advanced by Mehta was that the probe by State Police goes against co-operative federalism.“If this is permitted, there will be complete absence of rule of law. Can local police go behind NIA officials and arrest them. If that is so, fair and impartial investigation will not be possible,” he submitted..Mehta’s another argument was that the persons in whose name the investigation was initiated on the ground that they were pressurised to make statements against CM, have not filed any complaint themselves.“Police has taken it upon themselves to register FIR,” Mehta said..Mehta also contended that the Code of Criminal Procedure (CrPC) does not envisage a situation wherein one investigation agency is conducting inquiry, and another agency also gets involved and investigates it.“This is absurd. What if I were to now register an FIR saying local police is tampering with evidence collected by me,” he asked..Mehta also alleged that there are discrepancies between the FIR and earlier statements of the accused, Swapna Suresh.It was his argument that Suresh in her statement to court in August 2020 said that she had no complaint against ED investigation. She had also said that her only complaint was that there were no female officers present while she was questioned by ED. .However, as per the Kerala Police version, it was two lady constables who were present while Suresh was being interrogated, who claimed that Suresh was pressurised to drag CM Vijayan’s name into the controversy.“The lady after Aug 14 says she has no complaint. She also says her only complaint was no lady police officers where there during questioning. Now Kerala Police is saying two lady officers were there,” Mehta said..Mehta pointed out that Suresh had ample opportunities to speak up about such alleged pressure by ED when her bail plea had come up for hearing before special court and High Court.“She (Swapna Suresh) is not an illiterate lady without legal assistance. She has not given any statement that she was pressurised. She had opportunities to speak about alleged coercion before court. She did not have to wait for audio recording. She had defended herself on merits during bail plea,” Mehta contended.“On August 17, court specifically asked whether she had any complaint and she said she did not. Two invisible lady constables have now said 'in our presence she was pressurised,” Mehta added..Another important leg of Mehta’s submissions was that a competent court having already taken cognizance of the material placed by ED in the gold smuggling case, that court should be allowed to decide the matter.“A second investigating agency is looking at veracity of evidence even before the court of law takes a look at it. It is antithetical to the Constitution and against rule of law. It is only competent court which should be allowed to decide because the court has taken cognizance,” Mehta said..The Kerala Police had no authority to register the FIR since a court is seized of the matter, he added. He also alleged that by conducting parallel investigation, Kerala Police is trying to destroy the evidence collected by ED and Customs department.“If this kind of FIR is allowed, it is end of rule of law whereby one agency would nullify evidence collected by another agency before court examines it. If this is allowed, central agencies cannot fearlessly investigate matters in State,” Mehta submitted..After Mehta, ASG SV Raju and KM Nataraj also made arguments.Raju’s submissions were centred around how the various offences invoked by the Kerala Police would not survive since the necessary ingredients for the offences are not made out. In this regard, he sought to dissect, Sections 116, 192, 193, 195 and 195A of the Indian Penal Code and contended that the FIR did not reveal the ingredients of offences laid down in the above IPC provisions..Harin Raval for State of Kerala.Raval at the outset questioned the maintainability of the petition on the ground of non-compliance with procedural requirements.He pointed out that the petition has been filed by Deputy Director of ED, P Radhakrishnan. However, petition nowhere states is it being filed (by Radhakrishnan) in official capacity except in cause title, Raval said.“If the petition is filed to protect the government department, then procedure requires sanction be taken from the dept and should be clearly mentioned. The petition filed is not in the manner prescribed,” he submitted. .The petition in this case does not mention sanction from ED and does not say it has been filed in official capacity, he added.Regarding the contention of the petitioner regarding bar on parallel investigation, Raval stated that the Kerala Police is not investigating any of the offences which are being probe by ED.“Their contention is that our probe will affect PMLA case. With all due respect to my three senior colleague, there is no such attempt. I am not concerned with any of those offences or accused in PMLA case,” he said..The case by ED against those persons, he said, are for scheduled offences for gold smuggling. That, Raval maintained is not subject matter of investigation by Kerala Police.“Statements of Swapna Suresh or other accused is not subject matter of probe. Our case is that in questioning those accused, there was attempt to create false evidence against some other highly placed dignitaries. Hence, it is wrong to say State has no jurisdiction,” he contended..On the argument that the FIR did not reveal the offences registered, Raval said that FIR is not an encyclopedia of prosecution case and the investigation is still at a nascent stage.“How did the audio recording clip come into existence. Whose voice did it carry? What is the authenticity of the voice? These aspects are scope of preliminary enquiry. Not on veracity of contents of the clip,” he said..In a federal setup, Raval said, the central agency officers must respect the honesty and integrity of State police.The petition, he claimed, is pre-mature and intended to nip an investigation which is still at its nascent stage.