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Law never contemplated situation where one agency probes correctness of another: SG Tushar Mehta to Kerala HC

ANI | Updated: Mar 31, 2021 21:41 IST


Kochi (Kerala) [India], March 31 (ANI): Opposing the FIR registered by the Kerala Police against the Enforcement Directorate officials, Solicitor General (SG) Tushar Mehta on Wednesday submitted before the Kerala High Court that "law never contemplated a situation where one investigation agency is investigating the correctness of another investigating agency."
He further said, "This is an absurd situation and what the local police is now doing is tampering with evidence, which is now before the Court."
The Solicitor General stated before the bench of Justice VG Arun that, "at the outset, this is a question of wider implication, not just a question of quashing FIR, as it raises the question of cooperative federalism. A Central Agency is investigating offenses under PMLA (Prevention of Money Laundering Act, 2002), along with Customs and NIA.
He further stated, "ED has collected evidence and presented a report before the court, and the local police have also started investigating whether ED's investigation is correct or not. The first question that arises is that of cooperative federalism and what will the repercussion be if this permitted."
"The central agency is investigating a case in a state. A potential accused, who is powerful, whether a politician or a bureaucrat, is influencing local police to register a case against the central agency. If that is the law, no free and fair investigation will be possible," said the SG.
Presenting certain shocking facts stating that they will shake the conscience of the court, the SG said that the Kerala Police investigation is a complete abuse of the process of law, which is a ground for the High Court to interfere under section 482, ading that the law, the CrPC (Code of Criminal Procedure), never contemplated a situation where one investigation agency is investigating the correctness of another investigating agency.
Terming this as an absurd situation, he stated that the local police is now tampering with evidence, which is now before the Court which has taken cognisance.
"If a counter-FIR can be registered against Kerala Police for fabricating evidence. If their FIR is correct, my FIR will also be correct. Abuse of process of law is so flagrant and so manifest that your lordship's power under Article 226 read with Section 482 CrPC has to be invoked," he said.
He further said, "The lady, Swapna Suresh, who was in the custody of ED from August 5 to August 17, 2020, has never complained of coercion. The allegation in the impugned FIR is that on 13th August, two lady officers saw that in their presence, she was pressurised to give the statement. From the recording of a judicial order, I can show that the FIR is fabricated."

"The FIR says evidence has been fabricated. That is with respect to my evidence on which the Court has taken cognisance. Now another agency will examine if my evidence is correct. Swapna Suresh had said on August 14 that she had no complaints and her only complaint was that no lady officers were present. However, Kerala police FIR says women officers were there, who saw her being pressurised. Truth has a strange way of coming out. The draftsman of the FIR forgot Swapna Suresh told the Court next day that no lady officers were there, and FIR is now registered on the basis of statements of two lady officers," said the Solicitor General.
According to the SG, the woman made no complaint that she was pressurised, she (Swapna) meant that as a woman she was alone, and no lady officer, whether from ED or local police was there.
He said, "The correct legal opinion should have been, since the allegation is relating to evidence which is before a court, it is only that court which can take cognizance of pressurising. Only the Special Judge, PMLA Court can look at the evidence and direct prosecution of the ED officials. But before the any action has been taken by the Court, the local police is now saying that ED's evidence is fabricated. This is nothing but a malicious case."
"My respectful submission is that this can be done only by the Special Judge at the end of the trial. You cannot have a second agency take a second guess at the investigation of another agency, which is placed before a competent court," remarked the Solicitor General.
Stating that in every investigation, there will be an allegation in a trial that the evidence is fabricated, he said, "Will it be rule of law if another agency examines that before the court has had a look at it? It is antithetical to rule of law and constitution."
The Solicitor General further told the court that the woman had several opportunities before a neutral forum and did not have to wait for a woman officer to come with an audio recording to say this.
"Nowhere, whether directly or indirectly, she has given any statement that she was pressurized. She is not an illiterate lady without any legal assistance. Her counsel never argued that she was pressurized to give statements. Two invisible lady constables have given the statement. This is the minimum you'll check in a genuine preliminary inquiry," said SG Mehta.
He further said that even in the statement of Swapna recorded by the Customs before the Magistrate under Section 164, she has not raised any complaint of coercion.
The Solicitor General stated, "Please see the path which Kerala Police has taken. Not only they will destroy my evidence (ED), but also the Customs case and NIA case. Your lordships have several contemporaneous records, judicial proceedings, which are now sought to be overturned, on a farcical preliminary enquiry, based on statements of invisible lady officers."
Stating that the correct legal opinion should have been to approach the Special Court which has taken cognisance of the matter, he said, "If this sort of FIR is allowed, a central agency will not be able to do fair and fearless investigation in a State. This is the wider question. This is barred by law. One investigating agency cannot nullify the investigation by another agency. The concept of cooperative federalism is that state and central agencies act in tandem against perpetrators of crime, and not nullify each other."
"This is a situation where an investigation agency is saying that the investigation is destroyed and the FIR is illegal and violates even Article 21," he added. (ANI)

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