BREAKING: Kerala High Court quashes FIRs registered by Kerala Police against Enforcement Directorate officials in relation to Gold Smuggling case

The Kerala High Court on Friday quashed the First Information Reports (FIRs) lodged against unnamed Enforcement Directorate officials by the Kerala Police for allegedly coercing Swapna Suresh and Sandeep Nair, the accused in the gold smuggling case, to give statements implicating Chief Minister Pinarayi Vijayan in the case..The Court concluded that the offences in the two FIRs are such that the prohibition under Section 195 (1) of the Code of Criminal Procedure (CrPC) applies. The Court also observed that since there are non-cognisable offences alleged, the Crime Branch of the Kerala Police could not have taken up the matter in derogation of Section 155 (1), CrPC..Justice VG Arun, however, added that the Special Court hearing the gold smuggling case may examine the available material to discern whether an enquiry is required in this matter. ."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) [CrPC], so as to decide whether it is expedient to conduct an enquiry", the Court said..The Judge opined that if the allegations - that the accused were coerced to give false statements or that attempts were made to fabricate evidence - are true, and if such attempts had fructified, it would have definitely sullied the proceedings of the Court and impacted the administration of justice. In view of these concerns, the Court held:."Even though the other offences alleged are under Section 167 and 195A of IPC, they are undoubtedly interwoven and inseparable from the offence under Section 193 and therefore susceptible to the prohibition under Section 195 (1)(b)(i) of the CrPC. Adopting the same reasoning, it has to be held that the offence under Section 193 IPC being a non-cognisable offence, the Crime Branch could not have registered the crimes without following the procedure under Section 155 (1) CrPC, despite the deeming clause under Section 155 (4)." .The Court further opined that the remedy of any aggrieved person is before the Special Court. On being alerted by application or getting information regarding the commission of an offence under Section 195(1 (b), CrPC, the jurisdictional court can conduct a preliminary enquiry and form an opinion on whether or not it is expedient to conduct an enquiry..In this regard, the Court noted that a complaint moved by Sandeep Nair had already been taken up by the Special Court. Further, an application moved by the Crime Branch to question Nair in jail was also allowed. The High Court acknowledged the receipt of Nair's Section 161, CrPC statement in a sealed cover. .The High Court, therefore, directed the Kerala Police's investigating officer to submit all information gathered in the matter to the Special Court in a sealed cover. This information may be treated as information under Section 340 (1), CrPC so as to enable the Special Court to decide on whether an inquiry is needed, the High Court said. ."The FIR and further proceedings in Crime Nos. 94 of 2021 and 98 of 2021 of Crime Branch Police Station are quashed. 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 decided whether it is expedient to conduct an enquiry," the judgment said.The judgment was delivered on a plea by ED Deputy Director P Radhakrishnan who had approached the Court seeking the 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 Court had reserved judgment in the matter on April 9. Solicitor General Tushar Mehta and Additional Solicitors General SV Raju and KM Nataraj had argued for the ED and against the FIRs under challenge. Senior Advocate Harin Raval opposed the ED's plea on behalf of the State of Kerala..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 had submitted..[Kerala Gold smuggling] ED, State of Kerala war over jurisdiction, federalism before Kerala High Court.Mehta had 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 had asked..Mehta further 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 the 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 Vijaya’s name into the controversy.“The lady after August 14 says she has no complaint. She also says her only complaint was no lady police officers were there during questioning. Now Kerala Police is saying two lady officers were there,” Mehta said..Raval, on the other hand had questioned the maintainability of the petition on the ground of non-compliance with procedural requirements.He had 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 had submitted..Regarding the contention of the petitioner regarding the bar on a parallel investigation, Raval stated that the Kerala Police is not investigating any of the offences which are being probed by the ED.“Their contention is that our probe will affect PMLA case. With all due respect to my three senior colleagues, there is no such attempt. I am not concerned with any of those offences or accused in PMLA case,” he said.The case by the ED against those persons, he said, is for scheduled offences for gold smuggling. That, Raval maintained is not subject matter of investigation by Kerala Police.On the argument that the FIR did not reveal the offences registered, Raval had said that FIR is not an encyclopedia of the prosecution case and that the investigation is still at a nascent stage.