Thread by @barandbench

Kerala Police v Enforcement Directorate:

Kerala High Court will continue hearing petition filed by ED Deputy Director, P Radhakrishnan challenging FIR registered by Kerala Police against unnamed ED officials in connection with questioning of Gold smuggling accused Swapna Suresh

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 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

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

Bench asks whether lady meant no lady officer from ED was there during questioning and not that no lady constable was there.

She meant as a woman she was alone: Mehta.

If she was pressurised to give statement, it is part of evidence before competent court and has to be decided by competent court: Tushar 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

There are other circumstances too which will show that this (FIR) is malicious and an abuse of process of law: 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

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.

#KeralaHighCourt #Keralapolice #keralagoldsmuggling #ED

She had opportunity but she nowhere saod she was pressurised. She has defended herself on merits during bail plea: Mehta

#keralagoldsmuggling #KeralaPolice #KeralaPolicevsED #KeralaHighCourt

On August 17, court specifically asked whether she had any complaint and she said she did not: Mehta

#KeralaHighCourt #KeralaPolice #keralagoldsmuggling

Two invisible lady constables have now said 'in our presence she was pressurised': Mehta

#keralagoldsmuggling #keralahighcourt #enforcementdirectorate #KeralaPolicevsED

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.

#keralagoldsmuggling #keralahighcourr #KeralPolicevsED

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

#keralagoldsmuggling #keralahighcourt #KeralaPolicevsED
#ED

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

#keralagoldsmuggling #keralahighcourr #keralapolice #ED

Bench rises for lunch; hearing to resume at 2 pm.

#keralagoldsmuggling #KeralaPolicevsED

Bench assembles, hearing resumes.

#keralagoldsmuggling #KeralaPolice #ED #KeralaHighCourt

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

#keralagoldsmuggling #KeralaPolicevsED #KeralaHighCourt

There is nothing in her statement of Aug 13 implicating anybody: Raju.

#keralagoldsmuggling #KeralaPolice

She has voluntarily said all her statements are true. There is not whisper that any of her statements is false: Raju

#keralagoldsmuggling #keralahighcourt

In the entire FIR, no statement made that any false record was created. Section 192 not attracted: 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.

So both first and second part of section 193 will not apply: Raju

Will section 116 come into play: Bench

I will answer that after taking court through all the other offences: Raju

Section 195A: It says there should be threat to person, injury or property.

No such threat is given as per FIR: Raju.

#keralagoldsmuggling #KeralaPolicevsED #keralahighcourt

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

#keralagoldsmuggling

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

There is no instigation also mentioned in FIR. Threat and instigation cannot go together: 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

#keralagoldsmuggling #keralahighcourt

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

Four, statements of ED officials not reported.

Five, no explanation for delay;

Six, preliminary enquiry shows bias: Raju

#keralagoldsmuggling #KeralaPolicevsED

Today a situation has arisen where two woman constables have made false statements contrary to court records: Raju

#KeralaPolice #ED

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

#ED #KeralaPolice

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

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

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

Nataraj refers to Section 195 IPC on fabricating false evidence with intent to procure conviction.

#keralagoldsmuggling

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

#keralagoldsmuggling #keralahighcourt

There is a statutory bar to register FIR under Section 195: 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 complete legal bar. And on that ground alone, the entire proceedings are liable to be quashed: Nataraj

Investigation should not only be fair but also fearless. In this case if you analyse material, it is nothing but starting parallel investigation: Nataraj

#keralagoldsmuggling #keralapolixe #ed

KM Nataraj concludes.

Harin Raval begins on behalf of State of Kerala

#keralagoldsmuggling #keralahighcourt

Raval says he will deal with maintainability.

Raval says FIR is against unnamed officials. One Radhakrishnan who is EF officer has challenged it: Raval

#keralagoldsmuggling

ED*

I am not concerned with any of those offences or accused in PMLA case: Raval

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

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

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

#keralagoldsmuggling #kerakapolice #kerakahighcourt

They have tried to create a huge smokescreen. I won't ask Your Lordships to deal with anything under PMLA: Raval

I am urging Your Lordships to lift the smokescreen and see the entire might of Central govt used in the matter: Raval

FIR is not an encyclopedia of prosecution case: Raval citing precedents.

So this argument of theirs does not stand. The investigation is still at nascent stage: Raval.

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

#keralagoldsmuggling

The petition nowhere states is it being filed (by Radhakrishnan) in official capacity except in cause title: 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 filed is not in the manner prescribed. The affidavit also has no proper attestation or explanation: Raval

The petition in this case does not mention sanction from ED and does not say it has been filed in official capacity: Raval

The petition is pre-mature and intended to nip an investigation which is still at its nascent stage: Raval

In a federal structure, the central agency officers must respect the honesty and integrity of State police: Harin Raval

#keralagoldsmuggling #KeralaHighCourt #KeralaPolice

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.

#kerakagoldsmuggling #keralahighcourt #keralapolice #ED

It is not the duty of investigating officer to commit an offence in colour of discharge of office: Raval

#keralagoldsmuggling #keralahighcourt

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.

#keralagoldsmuggling #keralahighcourt

Investigation ongoing every day dilutes case of ED, NIA and Customs: Mehta

#keralahighcourt #keralagoldsmuggling #KeralaPolicevsED

Mr. Raval why don't you desist from proceeding further till next date? Bench asks Kerala govt

#keralagoldsmuggling #keralapolice

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

#keralagoldsmuggling

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.

#keralagokdsmuggling #keralahighcourr

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