Kerala HC quashes FIRs against ED officials in gold smuggling case

In a setback to the LDF government, the Kerala High Court on Friday quashed the two First Information Reports (FIRs) filed by the state police against some unnamed officials of the Enforcement Directorate (ED), in Kochi for allegedly forcing Swapna Suresh, and Sandeep Nair, both prime accused in the diplomatic gold smuggling and money laundering cases, to give false statements against Chief Minister Pinarayi Vijayan and other higher ups in the government.

Justice V.G. Arun held that the police could not have registered the FIRs for the offence under section 193 of the Indian Penal Code

IPC (fabrication of false evidence), against the ED officials in view of the bar under Section 195(1)(b) of Criminal Procedure Code (Cr.PC). As per Section 195(1)(b) CrPC, only the court before which the proceedings in a case were pending could take cognizance of an offence of fabrication of evidence.

The court further observed that that the proper remedy for the crime branch would have been to approach the Special Court under Prevention of Money Laundering Act (PMLA) Court with the complaint against the ED officials. It was for the Special Court to look into the statements of Nair and others and decide whether it was expedient to conduct a probe into the allegations regarding the fabrication of evidence by the ED.

The court passed the verdict while allowing petitions filed by P. Radhakrishnan, Deputy Director, ED against the registration of the two FIRs filed against the unnamed ED officials.

The Crime Branch have registered two FIRs. While the first one was based on Swapna Suresh’s audio clip and also on the complaint of the two civil police officers who had provided security to Swapna, another FIR was based on a complaint of Nair.

Tushar Mehta, Solicitor General of India, appearing for the petitioner had argued that If this kind of FIR was allowed to be filed, central agencies could not do a fair and fearless investigation.

He further contended that an investigating agency could not nullify an investigation being conducted by another agency before a competent court examined the matter. The concept of cooperative federalism was that State and central agencies should act in tandem against perpetrators of crime, and not nullify each other’s investigations. The FIR would destroy the investigation of the ED and the, therefore, the FIRs were illegal. In fact, Swapna Suresh had nowhere stated directly or indirectly that she had given any statement under pressure, though she had many opportunities to make such statements before the Special Court.

Mr. Mehta had submitted that only the Special Judge of the PMLA Court could only look at the evidence and issue directives for the prosecution of the ED officials and a second investigation agency could not look into the investigation of another agency.

Supreme Court lawyer Harin P. Raval appearing for the State government and the crime branch had argued that the investigation into a case under PMLA by the ED did not give the ED any license to fabricate evidence to bring in persons who had no connection with the case

He had also submitted that the FIR registered against the ED officials would not affect the investigation being conducted by the ED in the PMLA case. The filing of the petition swas an attempt to nip the investigation of the crime branch in the bud. He alleged that there was an attempt to tarnish the image of the State government.


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