Kerala High Court Refuses To Stay Police Investigation Against ED; Restrains Coercive Action Against Officials

The Kerala High Court on Wednesday refused to stay the investigation in the FIR registered by the Kerala Police crime branch against "unnamed officials" of the Enforcement Directorate(ED) for allegedly coercing gold smuggling accused Swapna Suresh to make false statements against the Chief Minister and other State Ministers.The Court however directed that no coercive steps should be taken by the police in the case till the next date of hearing, April 8. The Court also recorded the undertaking by the Public Prosecutor that no official witnesses have been called and will not be called till the next hearing date in connection with the case.Solicitor General Tushar Mehta vehemently pressed for an interim stay on the investigation before a bench of Justice VG Arun. The top law officer of the Union Government submitted that each day's investigation was weakening the evidence of the ED in the gold smuggling case. Not only the ED case was being affected, but also the cases of Customs and NIA were also getting affected, the SG submitted.After a day long session, when Justice Arun said that he will not be able to complete the hearing today, the Solicitor General made a fervent plea for stay :"The investigation which is going on everyday weakens not only the ED case, but also the Customs case, NIA case. It is irreversible damage. Comparative hardship may be seen. The incident is of August. The FIR is of March. The police is the complainant. I am pressing for the interim order. No prejudice will be caused if they halt the investigation for ten days. They waited for seven months for FIR", the SG said.However, Justice Arun said that it will be known only after the hearing how far the police case is affecting the ED case."We have to see the outcome of the hearing, to ascertain how far it is affecting the ED case", the judge said.The order passed by the bench after the hearing recorded as follows :"As the matter is being adjourned due to the paucity of time, I deem it appropriate that the investigating agency does not proceed with coercive steps in respect of the proceedings pending before this court. Post on April 8".Justice Arun dictates the order : As the matter is being adjourned due to the paucity of time, I deem it appropriate that the investigating agency does not proceed with coercive steps in respect of the proceedings pending before this court. Post on April 8.— Live Law (@LiveLawIndia) March 31, 2021 After the order was dictated, Senior Advocate Harin P Raval, who argued for the State Government today, said that the police will continue with the investigation."That is adding insult to injury", retorted the Solicitor General.At this point, Central Government Counsel Suvin Menon told the bench that a Customs official named Aishwarya Dhongre was called by the police today morning.This submission was refuted by Senior Public Prosecutor Suman Chakravarthy. He said that no official witnesses have been called.The Solicitor General urged the bench to direct that no official witnesses will be called till the next date.The bench then recorded in the order an undertaking made by the Prosecutor that official witnesses will not be called till the next date.The hearing started at 11 AM today, with Solicitor General Tushar Mehta opening the arguments. He submitted that the issue of "cooperative federalism" was involved in the case and law never contemplated one investigating agency examining the correctness of evidence collected by another agency. If the FIR is permitted, it will mean that no central agency can investigate in a state fearlessly and independently(Detailed account of SG's arguments may be read here).'Question Of Cooperative Federalism; Kerala Police Can't Examine Correctness Of ED Investigation' : Solicitor General Tells High CourtASG's submissionsAt the afternoon session, Additional Solicitor General SV Raju continued the arguments. He submitted before the Court that by invoking Section 116 IPC, the FIR itself admits that no offence is made out as 116 can be invoked only if the offence is not committed. Therefore, there is an admission that offence has not been committed. There is not a whisper in the FIR that an incorrect document has been framed. The ingredients of Section 167 IPC are also not made out. "FIR is vague. It has nothing. Neither head or tail. It makes out no offence." ASG remarked In the entire FIR, not a statement is made that any false entry has been made, any document containing false statement has been made.ASG added that Section 192 IPC is not made out. In any case, it is a definition section and not a punishing section. Next offence is Section 193 IPC for which the first requirement is that someone should give a false statement in a judicial proceeding. "What is 'false evidence'? That is defined in Section 191 IPC. That is not made out. They are not proceeding on the basis of statement under 50(Sec 50 PMLA). One can understand if it was based on 50. They have...

Kerala High Court Refuses To Stay Police Investigation Against ED; Restrains Coercive Action Against Officials

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