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IN THE HIGH COURT OF KERALA AT ERNAKULAM
V.G. Arun, J.
P.Radhakrishnan- Petitioner
Versus
State Of Kerala Rep.By The Principal Secretary Department Of Home And Ors. – Respondents
WP(C).No.7641 & 8920 Of 2021(E)
Decided On : 16-04-2021
Indian Penal Code, 1860 – Sections 116, 120B, 167, 192, 193 and 195A – Unlawful Activities (Prevention) Act, 1967 – Sections 17 and 18 – Prevention of Money Laundering Act, 2002 – Sections 4, 50 – Seizure of Gold – Smuggling – Quashment of FIR – Instant writ petition is filed by the Deputy Director, Enforcement Directorate, Kochi Zonal Office, aggrieved by the registration of Exhibit P1 FIR by the Crime Branch wing of the State Police – Challenge against registration of FIR and legality of Crime Branch investigation is led by Sri.Tushar Mehta, Solicitor General of India, supported by Sri. S.V.Raju and Sri.K.M.Nataraj, Additional Solicitors General appearing for Enforcement Directorate and Central Bureau of Investigation –
Finding of the Court:
It is evident that any aggrieved person can alert the court about commission of a crime committed with intent to mislead the court or to scuttle the proceedings pending before it and that, even in the absence of any complaint, the court is at liberty to take action, on receiving information regarding commission of offences enumerated under Section 195(1)(b). – Point that emerges is that, either on being alerted through an application or on getting information regarding the commission of the offence under Section 195(1)(b), the jurisdictional court can conduct a preliminary enquiry and form the opinion whether it is expedient to conduct an enquiry. – Further, if convinced about the need for an enquiry, the court can record its finding to that effect and make a complaint in writing and send it to the magistrate of first class having jurisdiction – Special Court has already received a complaint from Sri.Sandeep Nair and has allowed the application submitted by the Crime Branch to question him in jail. – 161 statement of Sri.Sandeep Nair recorded thereafter was made available to me in a sealed cover. – 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), so as to decide whether it is expedient to conduct an enquiry. – FIR and further proceedings in Crime of Crime Branch Police Station are quashed–
Result: Writ Petitions Disposed Of
JUDGMENT :
The instant writ petition is filed by the Deputy Director, Enforcement Directorate, Kochi Zonal Office, aggrieved by the registration of Exhibit P1 FIR by the Crime Branch wing of the State Police. The essential facts leading to the writ petition, are as under:
On 06.07.2020, O.R.No.7 of 2020 was registered at the Customs Commissionerate (Preventive), Kochi, consequent to seizure of 30 Kgs of gold worth Rs.14.82 Crores at the Thiruvananthapuram International Airport. The seizure was effected while the gold was being smuggled, camouflaging it as diplomatic baggage to the UAE Consulate. During the course of investigation it was revealed that the accused had committed offences under the Unlawful Activities (Prevention) Act, 1967 (UAPA) also. This resulted in the National Investigation Agency (NIA) registering a case against the very same accused, alleging commission of offences under Sections 17 and 18 of the UAPA. As the investigation progressed further, commission of the offence punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (PMLA) also came to light. Thereupon, ECIR/KCZO0/31/2020 was registered by the Enforcement Directorate (ED) on 13.07.2020 arraigning three persons as accused, one Smt. Swapna Suresh being the second accused and Sri. Sandeep Nair, the fourth accused. After registration of the case, the ED filed Exhibit P5 complaint before the Special Court for PMLA cases (Principal Sessions Court, Ernakulam. Later, two more persons were arraigned as accused, the fifth accused being the then Principal Secretary to the Chief Minister of Kerala. On the request of the Investigating Officer, custody of the second accused was given to the ED for seven days from 05.08.2020. The custody period was extended up to 14.08.2020 and thereafter, till 17.08.2020. During this period the accused were questioned and their statements under Section 50 of the PMLA recorded.
2. On 18.11.2020, an audio clip, purported to be that of Smt. Swapna Suresh, was aired by an online media channel, wherein she alleged that the ED officials had made her sign the Section 50 statements without allowing her to read its contents and that, she had been compelled by the officials to implicate the Chief Minister of the State. On 20.11.2020, the Deputy Director of ED sent the Exhibit R1(a) letter to the Director General of Prisons and Correctional Services, requesting for a detailed enquiry about the circumstances under which the alleged audio recording took place and to take appropriate action against the culprits. The Director General of Prisons forwarded the letter to the State Police Chief, who in turn directed a special investigation team to be constituted for conducting preliminary enquiry. During the course of such enquiry, two Women Police Constables, who had been assigned protection duty of Smt. Swapna Suresh, while she was questioned by the ED officials, stated that, on 12.8.2020 and 13.8.2020, they had overheard the ED officials coercing and cajoling the accused to give statements implicating the Chief Minister and others. The allegation being serious, legal opinion was obtained and Exhibit P1 FIR registered against the ED officials for offences under Sections 116, 120B, 167, 192, 193 and 195A of IPC.
3. The challenge against registration of the FIR and legality of the Crime Branch investigation is led by Sri.Tushar Mehta, learned Solicitor General of India, supported by Sri. S.V.Raju and Sri.K.M.Nataraj, learned Additional Solicitors General appearing for the Enforcement Directorate and Central Bureau of Investigation. Sri. Harin P. Raval, learned Senior Counsel appearing for the State of Kerala countered their contentions and justified the action of the Crime Branch.
4. According to the learned Solicitor General, registration of the crime by the Crime Branch wing of the State Police, against the officers of a Central Agency alleging flaws and excesses during their investigation, militates against the very concept of coop
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