Kerala Police v Enforcement Directorate: In federal structure, Central agency must respect integrity of State Police: State to Kerala High Court

The Kerala High Court is hearing the petition filed by Deputy Director of the Enforcement Directorate (ED) P Radhakrishnan challenging FIR registered by Kerala Police against unnamed ED officials in connection with questioning of Gold smuggling accused Swapna Suresh..Live updates of the hearing feature here..Hearing commences. Solicitor General Tushar Mehta starts his arguments.This is not a matter where we can argue on elementary principles that cognizable offence is made out, so fir can be registered. That is second year LLb argument. This is a case where a central investigating agency is sought to be investigated: Tushar Mehta.The State Police has started process of investigating as to whether my (ED) investigation is right or wrong: Tushar Mehta.Thus, the first question which arises is cooperative federalism. If this is permitted, there will be complete absence of rule of law: Tushar Mehta.Can local police go behind NIA officials and arrest them. If that is so, fair and impartial investigation will not be possible: Mehta.My second submission is there are certain shocking facts which will shake the judicial conscience of this court: Mehta.The persons in whose name this investigation has been initiated has said they are under pressure from high and mighty of State. They have not filed any complaint. Police has taken it upon themselves to register FIR: Mehta.Third, CrPC does not envisage a situation where one investigation agency is conducting inquiry, and another agency also comes and investigates it. It is absurd: Mehta.What if I were to now register an FIR saying local police is tampering with evidence collected by me, asks Mehta..Mehta is taking the court through the contents of the FIR registered by Kerala Police..Mehta refers to letter sent by ED Director to DG of Prisons of Kerala. .Harin Raval for Kerala objects to the statement that State has suppressed it. Raval says he has also sent it to Mehta on WhatsApp..Mehta now reading out from letter..The letter refers to audio recording involving accused woman by local police and how such recording could be taken of the woman in custody. The letter asks for registration of case against local police officers involved in the same to scuttle ED probe..Mehta now taking the court through the factual matrix of the case. .It will show the absurdity and falsity of the case (against ED): Mehta..Mehta says the accused submitted that they have no complaint while in custody..The allegation is that on Aug 13 she was pressurised to give statement against high ranking persons. But this allegation is fabricated: Mehta..This evidence whether false or not is part of my evidence the veracity of which a competent court is already examining: Mehta.She meant as a woman she was alone: Mehta..Bench asks whether lady meant no lady officer from ED was there during questioning and not that no lady constable was there..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.There cannot be a second investigating agency having a second look at material which is before competent court when the court has taken cognizance of it: Mehta.There are other circumstances too which will show that this (FIR) is malicious and an abuse of process of law: Mehta.It will have to be tested when that lady is in the witness box - whether she was coerced to smoke statement, or whether she said it without coercion: Mehta.If she was pressurised to give statement, it is part of evidence before competent court and has to be decided by the competent court: Tushar Mehta.Currently, 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: Mehta.It is only competent court which should be allowed to decide because the court has taken cognizance: SG Mehta..She ( Swapna Suresh) is not an illiterate lady without legal assistance. She has not given any statement she was pressurised to give statement: Tushar Mehta.She had opportunities to speak about alleged coercion before court. She did not have to wait for audio recording: Mehta..Mehta referring to court orders in Swapna Suresh's bail application..She had opportunity but she nowhere saod she was pressurised. She has defended herself on merits during bail plea: Mehta.On August 17, court specifically asked whether she had any complaint and she said she did not: Mehta .Two invisible lady constables have now said 'in our presence she was pressurised': Mehta .I am convinced that neither the lady or the other accused made any complaint of harassment or coercion either before special court or High Court when they had opportunity: Bench remarks.It is only natural that this court could have some suspicion. But her statement before Magistrate under Section 164 was recorded by Customs. Even that does not have allegation of pressure or torture: Mehta.Not only has Kerala police tried to destroy my (ED) evidence but also tried to destroy customs evidence: Mehta .Today they have called customs officials is what I am told: ASG KM Nataraj weighs in..Somebody has given wrong legal opinion to record FIR. They could not have registered FIR since court is seized of matter. 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: Mehta.If this is allowed, central agencies cannot fearlessly investigate matters in State: Mehta..These are cases for which Section 482 exists because there is no other effective remedy: Mehta .This FIR is also violative of Article 21: Mehta concludes..Additional Solicitor General SV Raju begins arguments. .My argument is this case falls within parameters of 102 of Bhajan Lal's case. .My first argument is that no offence as alleged is made out: ASG Raju.Section 116 IPC can be invoked only if offence not committed: Raju.There is no whisper in FIR that any document has been incorrectly framed or translated: Raju.Section 192 IPC on fabricating false evidence also not attracted. If you look at FIR, none of the requirements under 192 is specified: Raju.FIR is vague, does not have head or tail. Section 192 ingredients not mentioned: Raju.ASG SV Raju continuing with his arguments. .They are relying on statement of Aug 13. Every page is signed by her. So their argument that to was not shown to her etc is not correct: Raju.There is nothing in her statement of August 13 implicating anybody: Raju. She has voluntarily said all her statements are true. There is not whisper that any of her statements is false: Raju.Raju now examining Section 193 of IPC on offence of giving false evidence. As per the same, false statement should be made in judicial proceeding. Raju says they are not proceeding on basis of Section 50 of PMLA..In the entire FIR, no statement made that any false record was created. Section 192 not attracted: Raju.Section 195A: It says there should be threat to person, injury or property. No such threat is given as per FIR: Raju..Will section 116 come into play: Bench I will answer that after taking court through all the other offences: Raju.So both first and second part of section 193 will not apply: Raju.As per them, ED promised to make her approver. Promising someone to be made an approved is not a threat. Therefore, prima face Section 195A is not made out: Raju.Section 195A is intended to deal with hostile witnesses. It can't be that anybody can file a complaint. It is to deal with witnesses giving statements in court: Raju.Can you have a conspiracy without identifying the accused. How can you have these offences without naming the accused. This is a sham enquiry and bogus FIR: ASG Raju.There is no instigation also mentioned in FIR. Threat and instigation cannot go together: Raju.Why do I call this preliminary enquiry a bogus enquiry? One, no accused is identified; Two, no ingredients of offences are made out in the FIR. Thirdly, the court records have not been examined: Raju.If this is allowed, it will be a never ending exercise. Today State Police has filed against ED, tmrw ED could file against local Police and this will go on: Raju.Today a situation has arisen where two woman constables have made false statements contrary to court records: Raju.Four, statements of ED officials not reported. Five, no explanation for delay; Six, preliminary enquiry shows bias: Raju .There was a letter to Advocate General seeking permission to initiate contempt against customs official. That could be the origin of this news ( of customs official being summoned): Raval.Harin Raval for State of Kerala intervenes. Says ASG KM Nataraj's statement earlier today that customs officials were summoned today by Kerala Police, is wrong. "I have checked up and there is no such summons made to customs officials," Raval.Next to argue will be ASG KM Nataraj. Kerala High Court is one of the best High Courts across the country where we (lawyers) get best experience: Nataraj.I would only deal with two issues. One, if one investigating agency is probing a matter, can another agency statutorily be allowed to investigate the same? Nataraj asks.If magistrate records any finding on tampering, then what will be the fate of investigation under PMLA. What remains for special court to decide: Nataraj.Nataraj refers to Section 195 IPC on fabricating false evidence with intent to procure conviction..KM Nataraj concludes..Investigation should not only be fair but also fearless. In this case if you analyse material, it is nothing but starting parallel investigation: Nataraj.There is a complete legal bar. And on that ground alone, the entire proceedings are liable to be quashed: Nataraj.On Section 195A, the rigorous there should be a complaint. Here there is no such complaint. How can there be an FIR then: Nataraj.There is a statutory bar to register FIR under Section 195: Nataraj.Raval says FIR is against unnamed officials. One Radhakrishnan who is ED officer has challenged it: Raval.Raval says he will deal with maintainability..Harin Raval begins on behalf of State of Kerala..Their contention is that our probe will affect PMLA case. With all due respect to my three senior colleague, there is no such attempt: Raval.I am not concerned with any of those offences or accused in PMLA case: Raval.I am urging Your Lordships to lift the smokescreen and see the entire might of Central govt used in the matter: Raval.They have tried to create a huge smokescreen. I won't ask Your Lordships to deal with anything under PMLA: Raval.Our case is 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: Harin Raval.The case against those persons are for scheduled offences for gold smuggling. That is not subject matter of our investigation. Statements of Swapna Suresh or other accused is not subject matter of probe: Raval.So this argument of theirs does not stand. The investigation is still at nascent stage: Raval..FIR is not an encyclopedia of prosecution case: Raval citing precedents..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: Raval.The petition filed is not in the manner prescribed. The affidavit also has no proper attestation or explanation: Raval.If the petition is filed to protect the govt department, then procedure requires sanction be taken from the dept and should be clearly mentioned: Raval.The petition nowhere states is it being filed (by Radhakrishnan) in official capacity except in cause title: Raval.In a federal structure, the central agency officers must respect the honesty and integrity of State police: Harin Raval.The petition is pre-mature and intended to nip an investigation which is still at its nascent stage: Raval.The petition in this case does not mention sanction from ED and does not say it has been filed in official capacity: Raval.Raval dealing with registration of FIR and cases laws on the same..Raval says one of the case laws relied by Petitioner was before the Lalita Kumari judgment and is not good law..It is not the duty of investigating officer to commit an offence in colour of discharge of office: Raval .Solicitor General is pressing for interim relief. Evidence is being diluted with every passing day. .Raval says interim order of March 24 on protection against coercive action can continue..Investigation ongoing every day dilutes case of ED, NIA and Customs: Mehta.Mr. Raval why don't you desist from proceeding further till next date? Bench asks Kerala govt.Bench says let current interim arrangement continue. .Mehta insists for stay on probe. .Bench says it can complete hearing today after finishing regular board.Others are also waiting. I have to hear them because from tomorrow it is holiday for Kerala HC. They all need interim relief: Justice VG Arun.Mehta insists on stay of probe. .Court dictating order: Matter could not be finished though heard in detail. Solicitor General prays for stay on probe..Senior counsel opposes the same and says stay on coercive steps will suffice. As matter is being adjourned due to paucity of time, I deem it appropriate that investigating agency do not proceed with any coercive steps. Post on April 8..Counsel says Aishwarya Dhongre called an officer of Customs today for probe. Aishwarya Dhongre not part of this probe at all, says State counsel..Court directs no official witness shall be called for investigation. Hearing ends.

Kerala Police v Enforcement Directorate: In federal structure, Central agency must respect integrity of State Police: State to Kerala High Court

Related Stories