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TMI Blog2021 (4) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g flaws and excesses during their investigation, militates against the very concept of cooperative federalism enshrined in the Constitution. Further, such action, if permitted, will impair the conduct of free, fair and impartial investigation by the Central Agencies. It is contended that the Special Court having taken cognizance of the offences, based on the complaint filed by the ED, only the Special Court alone empowered to consider the complaint of the accused and that, parallel investigation by the Crime Branch would impinge the credibility of the investigation so far conducted by the ED and would result in an incredulous situation of a Magistrate deciding upon the authenticity and genuineness of the statements given by the accused, in a case under consideration before a Sessions Judge (Special Judge). It is contended that the allegations based on which the crime is registered, even if accepted in their entirety, do not make out any cognizable offence. That, in view of the bar under Section 195(1)(b)(i) of the Cr.P.C, the very registration of the crime is illegal. Attention is drawn to the decision in Patel Laljibhai Somabhai v. State of Gujarat, [(1971) 2 SCC 376], wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to Exhibits P15 and P16 remand orders dated 11.08.2020 and 14.08.2020, wherein the Special Judge, after interacting with accused Nos.1, 2 and 4, had observed that the accused appeared to be in sound health and mind and had no complaints. Particular emphasis is laid on paragraph 7 of Exhibit P17 order, wherein the learned counsel for Smt. Swapna Suresh had alleged that his client was tortured during questioning by the Enforcement Officials, without the presence of a woman officer. It is hence contended that the unbelievable narrative about the presence of women civil police officers while Smt. Swapna Suresh was questioned by ED officials, is nothing but a cooked up story. 6. Sri. K.M.Nataraj focused on the bar under Section 195(1)(b)(i) of the Cr.P.C and contended that the very purpose of that provision is to prevent instances like the one under consideration. That, the alleged act of coercing the third accused to name innocent persons as her accomplices being in relation to a proceeding pending before the Special Court, registration of the crime and investigation into such allegation is barred. The distinction between Sections 195(1)(b)(i) and 195(1)(b)(ii) is pointed out by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vy Council in King-Emperor v. Khwaja Nazir Ahmad [AIR 1945 PC 18] and of the Supreme Court in Abhinandan Jha and Others v. Dinesh Mishra [(1967) 3 SCR 668], State of Bihar and Another v. J.A.C.Saldanha and Others [(1980) 1 SCC 554] and the Constitutional Bench decision in Lalita Kumari v. Government of Uttar Pradesh and Others [(2014) 2 SCC 1]. It is contended that the bar under Section 195 of the Cr.P.C is only against taking cognizance and does not interdict investigation by the Police. Support for this argument is garnered from the decisions in State of Punjab v. Raj Singh and Another [(1998) 2 SCC 391], M.Narayandas v. State of Karnataka and Others [(2003) 11 SCC 251], Shafi @ Kozhi Shafi v. Abdul Salam and Others [2017 (4) KHC 929] and Nirmaljit Singh Hoon v. The State of West Bengal and Another [(1973) 3 SCC 753]. It is submitted that the attempt of the petitioner is to somehow thwart the investigation and prevent the truth from coming out, which is evident from the undue haste with which the writ petition has been filed. That, the petitioner and other officials of the ED had compelled and coerced the accused to give statements implicating highly placed personalities in the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulam alleging threat and coercion to give false evidence against the Chief Minister and that the entire matter require an in- depth investigation by registering an FIR. Countering the challenge, learned counsel for the respondent State highlighted the marked differences between the incidents and the allegations in the two crimes, which, according to the learned counsel, can, by any stretch of imagination, be treated to be the same or even similar. Elaborate legal contentions are put forth by both sides, relying on the decisions of the Apex Court in Ram Lal Narang v. State (Delhi Administration) [(1979) 2 SCC 322], State of West Bengal v. Swapan Kumar Guha and Others [(1982) 1 SCC 561], T.T.Antony v. State of Kerala and Others [(2001) 6 SCC 181], Upkar Singh v. Ved Prakash and Others [(2004) 13 SCC 292], etc. 9. The legal issues arising for consideration in both writ petitions, except the challenge on the ground that Exhibit P1 in W.P(C).8920 of 2021 is the second FIR, being common, both writ petitions are being considered together. 10. The challenge against maintainability of the writ petition on the premise that the petitioner has filed the case in his individual capacity cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court 115[or by such officer of the Court as that Court may authorise in writing in this behalf], or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by Section 190 CrPC, of the aggrieved parties directly initiating the criminal proceedings. The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in Section 196(1)(c) only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party." The reason behind bringing certain specified offences under the purview of Section 195 of the Cr.P.C is because the commission of tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statutory power of the police to investigate into an FIR which discloses a cognizable offence, even if the offence is alleged to have been committed in, or in relation to, any proceeding in court. The Apex Court further held that the statutory power of the police to investigate under the Code is in no way controlled or circumscribed by Section 195 of the Cr.PC. That, upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) of the Cr.PC, but nothing therein deters the court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 of the Cr.PC. 16. The distinction between Sections 195(1)(b)(i) and 195(1(b)(ii) has been succinctly laid down in Narendra Kumar Srivastava v. State of Bihar, [(2019) 3 SCC 318] in the following words; "13. It is clear from sub-section (1)(b) of Section 195 CrPC that the section deals with two separate set of offences: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances of the case, we deem it proper to set aside the costs imposed by the High Court." 17. The Honourable Supreme Court had occasion to consider this question in Bandekar Brothers Pvt. Ltd and Anr v Prasad Vasudev Keni etc. [2020 SCC OnLine SC 707], the relevant portion of which is extracted hereunder; "19. At this stage, it is important to understand the difference between the offences mentioned in Section 195(1) (b)(i) and Section 195(1)(b)(ii) of the CrPC. Where the facts mentioned in a complaint attracts the provisions of Section 191 to 193 of the IPC, Section 195(1)(b)(i) of the CrPC applies. What is important is that once these sections of the IPC are attracted, the offence should be alleged to have been committed in, or in relation to, any proceeding in any Court. Thus, what is clear is that the offence punishable under these sections does not have to be committed only in any proceeding in any Court but can also be an offence alleged to have been committed in relation to any proceeding in any Court. xx xx xx 22. Contrasted with Section 195(1)(b)(i), Section 195(1) (b)(ii) of the CrPC speaks of offences described in Section 463, and punishable under Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant cases are concerned, the Special Court has taken cognizance of the offences under the PMLA on 12.10.2020. As such, recording of the accused's statements would undoubtedly fall within the import of the words "in relation to any proceeding in any court" mentioned in Section 195(1)(b) (i). 20. The next question to be considered is whether the prohibition under Section 195(1)(b)(i) could be made applicable to all the offences or should be confined to the offences enumerated therein. The purpose behind the enactment of Section 195 being to ensure that the proceedings of the court are not sullied, nor the administration of justice not meddled with, if the other offences are interwoven and inseparable from the offences within ambit of Section 195(1)(b)(i), necessarily, the prohibition will have to be extended to the other offences also. This question was considered in Bandekar Brothers' case (supra) and answered at paragraph 44 of the judgment, as under: "44. Equally important to remember is that if in the course of the same transaction two separate offences are made out, for one of which Section 195 of the CrPC is not attracted, and it is not possible to split them up, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibition under Section 195(1)(b)(i) of Cr.PC. Adopting the same reasoning, it has to be held that the offence under Section 193 IPC being a non-cognisable offence, the Crime Branch could not have registered the crimes without following the procedure under Section 155(1) Cr.P.C, despite the deeming clause under Section 155(4). Hence, the remedy of the aggrieved persons was to approach the Special Court. Having held so, it will be apposite to have a look at Section 340 of Cr.PC. "340. Procedure in cases mentioned in Section 195.--(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-- (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 23. As far as the instant cases are concerned, the 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. The 161 statement of Sri.Sandeep Nair recorded thereafter was made available to me in a sealed cover. In my considered opinion, 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. In the result, the FIR and further proceedings in Crime Nos. 94 of 2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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