Sabarimala gold theft: Kerala High Court sets aside trial court order denying FIR, FIS copies to ED

The Kerala High Court on Wednesday set aside a trial court's order which had refused to provide the Enforcement Directorate (ED) with certified copies of the First Information Report (FIR) and First Information Statement (FIS) in the Sabarimala gold misappropriation case. [Directorate of Enforcement v State of Kerala]..The Division Bench of Justices Raja Vijayaraghavan V and KV Jayakumar, which has been monitoring the probe into the alleged theft of gold from the Sabarimala temple, held that the trial court's order was legally unsustainable. The Bench also made it clear that it had never passed any directions barring the trial court from considering such applications in the case. "Having gone through the order passed by the learned Magistrate, we are of the view that the same cannot be sustained. We have not, at any point, imposed any embargo on the Magistrate considering an application in accordance with the provisions of the PMLA or Rule 226 of the Criminal Rules of Practice," the Court added..However, the Court noted that the ED's application before the magistrate lacked assertions regarding the existence of 'proceeds of crime' which is an essential requirement to invoke the Prevention of Money Laundering Act, 2002 (PMLA).It, therefore, allowed the ED to file a fresh application before the trial court along with materials indicating the existence of such proceeds of crime."Jurisdiction under the PMLA commences only when the predicate offence has resulted in "proceeds of crime". The Enforcement Directorate must have credible material to believe that such proceeds exist. We are of the view that in the absence of such foundational averments, the application was deficient and incapable of consideration in its present form. In view of the discussion above, we set aside the order passed by the learned Magistrate. It would be open to the Enforcement Directorate to file a fresh application before the learned Magistrate setting forth the exact purpose for which the copy is required," the Court ordered..The gold theft case concerns allegations that several kilograms of gold went missing from plates covering Dwarapalaka idols and door frames that lead to the Sreekovil at the Sabarimala temple. Those had been sent for repair work by a man named Unnikrishnan Potti, who had undertaken to sponsor the repair work, which was entrusted to a Chennai firm.However, controversy arose after gold from these items was found to be missing when the plates were measured after the repair work. Some of the gold was even allegedly recovered by authorities from Potti's sister's house.The Thiruvananthapuram Crime Branch subsequently registered a crime alleging serious offences under the Indian Penal Code and the Prevention of Corruption Act, 1988 both of which are scheduled offences under PMLA. The High Court also constituted a Special Investigation Team (SIT) to probe the crime. The ED then approached the trial court, i.e., the judicial magistrate first class at Ranni, seeking copies of the FIR to initiate proceedings under the PMLA. However, the trial court dismissed the request citing the sensitivity of the investigation and the ongoing monitoring by the High Court through the suo motu proceedings.Thus, the ED moved the High Court, contending that the trial court had misinterpreted the High Court's interim direction, which only barred media trials and parallel investigations by the press.It added that as per Rule 226 of the Criminal Rules of Practice of Kerala, only a verified petition explaining the purpose for which the copy of FIR was sought is required to be filed. The magistrate cannot refuse such an application merely on the ground that the case was sensitive, the ED stated. It further submitted that the accused had forged documents and diverted valuable gold items from the Sabarimala temple, prima facie warranting a probe by the ED into the possibility of money laundering..The Division Bench deemed it fit to set aside the trial court's order and directed ED to file a fresh application to get access to the FIR and FIS..The ED was represented by standing counsel Jaishankar V Nair.Director General of Prosecution and Senior Advocate TA Shaji along with special government pleader P Narayanan and Senior government pleader S Rajamohan appeared for the state..[Read Order].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.