Gold smuggling case: Swapna's 164 statement throws up a legal conundrum

Amidst the furore created by the Opposition in Kerala demanding the resignation of Chief Minister Pinarayi Vijayan, a fundamental legal question related to Swapna Suresh’s statement to the magistrate has thrown up a conundrum.

Swapna, an accused in the 2016 diplomatic gold smuggling case, who has accused the CM of being involved in the case, had recorded a statement in the magistrate court in Ernakulam under section 164 of CrPC.

Section 164 of CrPC allows a person to record his/her statement with a magistrate under secrecy. Such a statement will not be revealed to the public.

Later, Swapna along with her lawyer spoke to the media and raised allegations against the Chief Minister, his family members, former IAS officers such as Nalini Netto and Sivasankar and the former minister KT Jaleel.

However, those raising the demand for the CM’s resignation are supposed to have assumed that the statement made to the magistrate is the same as the allegations.

But are they one and the same? Since the statement made to the magistrate will not be disclosed, how can one assume what was said there?

The second question that arises is can any individual go to a magistrate court and record a statement under section 164 of CrPC?

164 CrPC

According to experts, a random person cannot go to a court and depose under section 164 CrPC. He should be a person of interest (either an accused or a victim) in a concerning case. If he or she is an accused, the person can only make a confession statement under the concerned provision of CrPC.

“A 164 statement is relevant only for the particular case to which it is related. The magistrate’s duty is to forward the same to the trial court where the trial happens. Even this statement would have evidence value only if the person of interest repeats the same in the trial court during the time of the trial,” says Advocate VR Pramod.

The Supreme Court has made clear the guidelines on the same in the case of Jogendra Nahak vs State Of Orissa.

Also read: HC rejects Swapna Suresh’s bail plea

Justice KT Thomas, who headed the three-judge bench had said: “There is no set or stage at which a magistrate can take note of a stranger individual approaching him directly with a prayer that his statement may be recorded in connection with some occurrence involving a criminal offence. If a magistrate is obliged to record the statements of all such persons who approach him, the situation would become anomalous and every magistrate court will be further crowded with a number of such intending witness brought up at the behest of accused persons.”

According to the Supreme Court, the magistrate should not be burdened with the additional task of recording the statements of all and sundry who may knock at the door of the court with a request to record their statements under Section 164 of the Code.

No clarity

Advocate Krishna Raj, who accompanied Swapna to the magistrate court, declined to explain to The Federal under what capacity Swapna deposed before the court. “I cannot disclose it to you.”

According to the anticipatory bail petition submitted by Swapna in the High Court, she made the 164 statement in the case under the Prevention of Money Laundering Act being investigated by the Enforcement Directorate.

However, the director of ED in Kerala who is in charge of the investigation told The Federal that they have no idea about the happenings. “I am not in the station now. I cannot tell you anything in detail now,” said Radhakrishna Pillai, the director of Enforcement Directorate in Kerala.

Audio clip of more allegations

Swapna made more allegations against Pinarayi Vijayan and Kodiyeri Balakrishnan in another press conference on Friday. She alleged that a man named Shaji Kiran who used to be a friend approached her for compromise on behalf of the Chief Minister.

She released the audio of a telephone conversation between Swapna and Shaji Kiran. In the audio, Shaji Kiran tells her that the ‘unaccounted’ funds of Kodiyeri Balakrishnan and Pinarayi Vijayan are routed to the United States through Believers’ Church, a Christian denomination. According to Swapna, Shaji Kiran claimed that he was the PRO of Believers’ Church and he was responsible for such transactions.

Kodiyeri Balakrishnan later in a press conference denied all allegations and blamed the opposition Congress for trying to unsettle the government.

“All these allegations related to gold smuggling are old. The Opposition is trying to bring it back only with an intention to create hurdle in the functioning of the government,” Kodiyeri said.