Case BriefsHigh Courts

Kerala High Court: V. G. Arun, J., dismissed the instant petition filed by the petitioner, the Additional Private Secretary to the Chief Minister of Kerala, seeking to restrain the Enforcement Directorate (ED) from detaining the petitioner beyond reasonable time and to permit the presence of a legal practitioner during questioning.

The petitioner contended that are such that, repeated summons were issued to him in spite of his ailments and weak physical condition, which speaks volumes about the arbitrariness and mala fides behind the actions of ED. The petitioner apprehends that he will be detained for long hours and made to give statements against his will. It was submitted that having recently recovered from Covid-19 the continuous interrogation for long hours would have an adverse impact on the already weak health condition of the petitioner. The counsel for the petitioner further submitted that the petition is not against the power of ED to issue the summons, but against the injudicious manner in which the power is being exercised.

Additional Solicitor General, S.V. Raju, on behalf of respondent questioned the maintainability of the petition. It was contended that the writ petition is liable to be dismissed as premature since, the mere issuance of summons under Section 50 of the Prevention of Money Laundering Act, 2002 does not give rise to any cause of action. The respondent relied on Commissioner of Customs, Calcutta v. M.M.Exports, (2010) 15 SCC 647, wherein the Supreme Court had cautioned that, as far as possible, High Courts should not interfere at the stage when the Department has issued the summons.

The Court disposed of the petition, reiterating the Supreme Court’s decision in Kirit Shrimankar v. Union of India, 2014 SCC OnLine SC 1614, that no cause of action arises merely for the reason of a person being called upon to state the truth or to make statements and produce documents. The Court further relied on Dukhishyam Benupani, Assistant Director, Enforcement Directorate v. Arun Kumar Bajoria, (1998)1 SCC 52, where the Supreme Court held that it is not for this Court to monitor the investigation and to decide the venue, the timings, the questions and the manner of questioning. [C.M.Raveendran v. Union of India, WP(C) No. 28049 of 2020(E), decided on 17-02-020]

Case BriefsHigh Courts

Kerala High Court: In an appeal against the order delivered by JMFC, Mallapuram; P. Somarajan, J., allowed the same setting aside the impugned order. The petitioner has been charged for offences punishable under Sections 279 and 338 of the Penal Code, 1860 and Section 146 read with Section 196 of Motor Vehicles Act (MVA).

The factual matrix in the present matter is such that a crime was registered against the petitioner subsequent to which he was brought before the magistrate on 20-10-2017 even though no summon was served to him. He was made to plead guilty without affording an opportunity to avail legal assistance, probably based on the reason that he ended up injuring a police constable in the accident. Then the judicial magistrate obtained the petitioner’s signature on the examination allegedly done under Section 281 Criminal Procedure Code, 1973.

The Court observed that very little respect has been shown to the proceedings which is clear from the fact that the JMFC had recorded some things like “μ”, “à”, “2” in place of the answers given by the petitioner-accused to question nos. 1 to 3 respectively, in compliance of Section 281 CrPC. Section 281 clearly states that wherever the accused is examined by a metropolitan magistrate, the magistrate shall make a memorandum of the substance of the examination of the accused in the language of the court and the same shall be signed by the magistrate and form a part of the record.

Section 281 has not been complied with by the magistrate who put some marks in the place of actual answers as if those would constitute the gist of answers given by the accused. These marks do not convey any meaning and are impossible to decipher. Such deliberate laxity cannot be tolerated especially when it’s done by an officer of the court who has full knowledge of its repercussions.

The act is in complete disregard of the legal framework and has been done in bad taste. It appears that the present matter is a fit case of malicious prosecution.

In view of the above, the petition has been allowed by the Court granting relief to the petitioner. The Court has also issued instructions to the magistrate to take up the file, issue a notice to the petitioner-accuses and proceed with caution in accordance with law.[Muhammedali v. State of Kerala, 2020 SCC OnLine Ker 4877, decided on 07-10-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together