Supreme Court Stays Kerala HC Order Allowing Trial Court Enquiry Against ED Officials Over Alleged Fabrication Of Evidence In Gold Smuggling Case

The Supreme Court on Thursday stayed the Kerala High Court order allowing the trial court to inquire if the ED investigating officers tried to fabricate evidence in the gold smuggling case.The bench of Justices A. M. Khanwilkar, Dinesh Maheshwari and C. T. Ravikumar was hearing ED's SLP against the April order of a Single Judge of the Kerala High Court where, while quashing the two FIRs registered by the Kerala Police Crime Branch against "unnamed officials" of the ED for allegedly coercing the accused in the gold smuggling case to give false incriminating statements to implicate CM Pinarayi Vijayan and other state functionaries, the High Court had directed that the proper remedy would have been for the police to approach the Special PMLA Court, which has taken cognisance of the ED's final report, with the complaint that the ED officials were fabricating evidence. Noting that while the bar under Section 195(1)(b) of the Cr. P. C. was attracted against the FIRs and hence, the police could not have registered the FIRs for Section 193, IPC (offence relating to false evidence), the High Court had said that the Special Court will be at liberty to look into the materials collected by the Crime Branch following the procedure under Section 340 Cr. P. C.It may be noted that the Kerala government had in July approached the High Court against its Single Bench order quashing the FIRs filed by the State Police against Enforcement Directorate officials.On Thursday, Senior Advocate Harin Raval, for the state of Kerala, made submissions on the maintainability of the proceedings. He submitted that the SLP by the Department was not maintainable and that they ought to approach the division bench of the High Court. His argument was that the single judge order was passed in a writ petition filed by the ED officer, and hence an intra-court appeal before the division bench was available.However, the Supreme Court bench observed that the though the order was passed in a writ petition, the power exercised was under Section 482 CrPC to quash the FIRs. Therefore, the bench asked whether intra-court appeal would be maintainable against the quashing order.Explaining his point, Mr. Raval submitted :- "Section 5(1) of the Kerala High Court Act says that an appeal shall lie to a bench of two judges from a judgment or order of a single judge in exercise of original jurisdiction. In one case, there was a proceeding before the Kerala High Court under section 340 of the Cr. P. C. There was an order passed by a single judge. That order was carried in appeal and the High Court held that the appeal is maintainable. It came before this Court. The Supreme Court did not interfere. In that case, the High Court ruled that it is one of the principles of interpretation that unless there is express exclusion of appeal from an order, ordinarily, appeal will lie from such orders, and that merely because Section 341 of the Cr. P. C. does not provide for appeals, it cannot be said that appeal does not lie under section 5 of the Kerala High Court Act"At this, the bench pointed out that in the judgment being relied upon by Mr. Raval, the Kerala High Court had noted that "Admittedly, the jurisdiction exercised here is the original jurisdiction and not criminal jurisdiction""The jurisdiction which has been exercised here in the present case (where the ED challenged the FIRs by the state of Kerala) by the Kerala High Court is section 482, Cr. P. C., it is quashing. If we accept your argument, it will lead to a problem- There are two courts dealing with civil jurisdiction and criminal jurisdiction in any High Court. Both jurisdictions are never given to one judge. Quashing is a criminal jurisdiction, we are saying it very emphatically. Giving a nomenclature of 'Article 226 (Civil)' does not make it original jurisdiction, let alone civil. We will say that it is nevertheless a 482 petition and the order passed is under 482. Show us which provision says that an appeal against criminal jurisdiction will lie? Section 5 of the Kerala High Court Act has to be read with section 4 (powers of a bench of 2 judges)", observed the bench."Is there any original criminal jurisdiction to the Kerala High Court? Show us the provision? That is the test. Only then you can take this point forward. Otherwise, we will reject it. We are saying it. Nothing more is required to be seen by us. We are rejecting your arguments straightaway", added the bench."Section 4 or section 5, as the case may be, deal with the original jurisdiction of the High Court. It necessarily means that it will be civil jurisdiction and not criminal jurisdiction, unless the Act specifies. And the Act does not make this distinction for criminal jurisdiction", noted the bench.Granting leave in the SLPs and listing them for hearing in January, 2022, the bench directed, "In the meantime, there shall be stay of operation of the impugned judgment and order to the extent assailed in these special leave petitions".Case...

Supreme Court Stays Kerala HC Order Allowing Trial Court Enquiry Against ED Officials Over Alleged Fabrication Of Evidence In Gold Smuggling Case

Mehal Jain

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