Brief Facts
- Complaints under section 44(1)(b) of PMLA was filed by the ED before the Special Court in which the Appellants were arrayed as accused persons. The Special Judge took cognizance of the offence on 17th September 2018. The appellants were supplied copies of the complaint and some documents relied upon by the prosecution. An application was made by the appellants to the Special Court for the grant of copies of the following categories of documents: (a) documents relied upon in the complaint but not supplied; (b) documents supplied which were not legible; and (c) documents collected during the investigation which were suppressed. However, Special Court dismissed the application to hold that ED is not obligated to supply unrelied documents.
- Another application was filed by Appellant No. 2 seeking directions to supply the documents seized during the raids/searches conducted by it to enable the appellants to defend their case. This application was also rejected.
- The High Court upheld these orders of Special Court, resulting present petitions.
Issues
- Right of an accused to get copies of the documents relied upon in the complaint under section 44(1)(b) of the PMLA and the documents produced along with the complaint.
- Whether an accused is entitled to seek copies of the documents not relied upon by the prosecution at the stage of framing of charge?
- The right to seek production of documents for the purposes of bail applications governed by section 45(1)(ii) of PMLA.
Held
Appeals were allowed with the directions to ED to (i) supply to copies of the documents produced along with the complaint (ii) supply true copies of the documents seized from the premises of the accused. The findings of the court are as hereunder :
Summary of conclusions drawn by the Supreme Court
- When records, instruments or documents of title of the property are seized along with the property under Sections 17 and 18 of the PMLA, the accused from whom the same are seized is entitled to true copies thereof.
List of documents to be supplied to the accused
- Once cognizance is taken on the basis of a complaint under Section 44(1)(b) of the PMLA, the learned Special Judge must direct that along with the process, a copy of the complaint and the following documents be provided to the accused;
- Statements recorded by the learned Special Judge of the complainant and the witnesses, if any, before taking cognizance;
- The documents including the copies of the Statements under Section 50 of the PMLA produced before the Special Court, along with the complaint, and the documents produced subsequently by the ED till the date of taking cognizance; and
- Copies of the supplementary complaints and the documents, if any, produced with supplementary complaints.
- We hold that a copy of the list of statements, documents, material objects and exhibits that are not relied upon by the investigating officer must also be furnished to the accused. As held by this Court, the object is to ensure that the accused has knowledge of the documents, objects, etc. in the custody of the investigating officer which are not relied upon so that at the appropriate stage, the accused can apply by invoking the provisions of Section 91 of the CrPC (Section 94 of the BNSS) for providing copies of the documents which are not relied upon by the prosecution.
Material to be considered at the stage of framing of charge
- At the time of hearing for framing of charge, reliance can be placed only on the documents forming part of the chargesheet. In case of the PMLA, at the time of framing charge, reliance can be placed only on those documents which are produced along with the complaint or supplementary complaints. Though the accused will be entitled to a list of documents, objects, exhibits etc. that are not relied upon by the ED at the stage of framing of charge, in ordinary course, the accused is not entitled to seek copies of the said documents at the stage of framing of charge.
Accused can seek production of unrelied documents at appropriate stage
- At the stage of entering upon defence, an accused can apply for the issue of process for the production of any document or thing in accordance with Section 233(3) of the CrPC (Section 256(3) of the BNSS). At this stage, he can also apply for the production of a document or a thing that is in the custody of the prosecution but has not been produced. A fair trial is a part of the right guaranteed to an accused under Article 21 of the Constitution. The right to a fair trial of the accused includes the right to defend. The right to defend consists of the right to lead the defence evidence by examining the witnesses and producing the documents. Therefore, the accused is entitled to exercise his right at the stage of entering upon defence by compelling the prosecution or a third party to produce a document or a thing in their possession or custody. The Court can decline the request of the accused for issuing process for the production of documents only on the limited grounds set out in sub-section (3) of section 233 of the CrPC.
- When at the stage of defence evidence of the accused, documents are produced on the prayer of the accused and the accused desires to cross-examine any of the prosecution witnesses based on the said documents, it is always open for the accused to apply under Section 311 of the CrPC (Section 348 of the BNSS) to recall a prosecution witness already examined for further cross-examination. The reason is that the right to effectively cross-examine the prosecution witnesses is also a part of the right to have a fair trial. The accused can exercise this right even if evidence of both sides is closed.
- The valuable right of the accused under Section 233(3) of the CrPC needs to be protected.
Accused can apply for seeking unrelied documents at the stage of bail arguments
- At the time of hearing of an application for bail governed by Section 45(1)(ii) in connection with the offences under Section 3 of the PMLA, an accused is entitled to invoke Section 91 of the CrPC (Section 94 of the BNSS) seeking production of unrelied upon documents. If investigation or further investigation in progress, the ED is entitled to raise objection to production of documents sought by the accused on the ground that if the documents are disclosed at this stage to the accused, it may prejudice the investigation. Only if the Court after perusing the documents is satisfied that the disclosure of the documents at that stage may prejudice the ongoing investigation, it can deny the prayer for the production of such documents.
Relevant Para No.
- 55 and 56