TaxTMI 
TaxTMI 
2025 (5) TMI 576
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....dv. Ms. Akshita Choubey, Adv. Mr. Anand Kirti, Adv. Ms. Bhawna Gandhi, Adv. Mr. Sidharth Kuhar, Adv. Ms. Anushka Gupta, Adv. Ms. Aakriti Mishra, Adv. Ms. Divya S. Rao, Adv. Mr. Shyam Bhageria, Adv. Mr. Prakhar Bharadwaj, Adv. Mrs. Sweety Chauhan, Adv. Mr. Gaurav Saini,Adv. Ms. Nidhi Singh, Adv JUDGMENT ABHAY S. OKA, J. FACTUAL ASPECTS CRIMINAL APPEAL NO.1622 OF 2022 1. Criminal Appeal no.1622 of 2022 takes an exception to the impugned judgment and order of the High Court of Delhi dated 22nd July, 2019, in a writ petition filed by the present appellants. In July 2017, the Central Bureau of Investigation (for short, 'the CBI') registered a First Information Report (for short, 'FIR') against the appellants for the offences punishable under Section 120-B read with Section 420 of the Indian Penal Code, 1860 (for short, 'the IPC') and Section 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, 'the PC Act'). Based on the said FIR, an Enforcement Case Information Report (for short, 'the ECIR') was registered by the Directorate of Enforcement (for short, 'the ED'). A complaint under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 (for short, 'the ....
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....defend their case before the Special Court. The Special Court rejected the said application by the order dated 22nd March 2022. Accordingly, the appellants filed a petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the CrPC') before the High Court of Punjab and Haryana at Chandigarh to challenge the said order. By the impugned judgment and order, the High Court dismissed the said writ petition. SUBMISSIONS APPELLANTS 5. Detailed submissions have been made in both appeals. In support of Criminal Appeal no.1622 of 2022, the learned senior counsel appearing for the appellants urged that the right under Section 207 of the CrPC is not restricted to the documents relied upon by the prosecution. The right under Section 207 to get documents includes all the documents collected during the investigation. He submitted that Sections 207 and 208 of the CrPC must be complied with before the trial commences. He submitted that the right to get all the documents collected during the investigation flows from the right to a free and fair trial, which is guaranteed under Article 21 of the Constitution of India. He referred to the provisions of the Code of Criminal ....
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....ed upon, at the stage of framing of charge. He submitted that in the offence that is the subject matter of Criminal Appeal no.730 of 2024, the ED is carrying out further investigation. Therefore, before completion of the investigation, the appellants are not entitled to seek copies of the documents not relied upon by the ED. He submitted that the law is very well settled and that at the time of framing of the charge, the Court can only look into the documents that are part of the chargesheet and no other document. The accused cannot rely upon something that is not a part of the chargesheet at the time of hearing on framing of charge. The accused cannot seek production of the documents that were not relied upon by the ED at the time of framing of the charge. The learned ASG also referred to Section 204 of the CrPC. He submitted that in view of the said provision, the accused is only entitled to get a copy of the complaint and documents filed along with the complaint. 9. Relying upon a decision of this Court in the case of Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re v. State of Andhra Pradesh & Ors (2021) 10 SCC 598 : 2021 SCC OnLine SC 329, he submit....
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.... was not a part of the complaint at the time of framing of the charge. Before the High Court, reliance was placed on the decision of this Court in the case of Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re^1. The High Court held that the documents relied upon were already supplied by the ED. However, the appellants were entitled to seek only a list of documents which were not relied upon by the ED. The High Court held that at the time of framing of charges, reliance can be placed only on the documents filed by the prosecution. Therefore, the appellants were not entitled to the copies of the documents which were not relied upon by the prosecution. However, the High Court observed that in case the appellants so require, they can always file an appropriate application before the learned Special Judge for a direction to the prosecution to supply the list of such documents. RIGHT TO GET COPIES OF THE RECORD/DOCUMENTS SEIZED AS PER SECTIONS 17 AND 18 OF THE PMLA 12. Under Section 17 of the PMLA, a power is vested in the Director or other authorised officers to conduct a search and seizure of record or property. Section 17 of the PMLA reads thus: ....
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....rded along with material in his possession, referred to in that sub- section, to the Adjudicating Authority in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such reasons and material for such period, as may be prescribed. (3) Where an authority, upon information obtained during survey under section 16, is satisfied that any evidence shall be or is likely to be concealed or tampered with, he may, for reasons to be recorded in writing, enter and search the building or place where such evidence is located and seize that evidence: Provided that no authorisation referred to in sub-section (1) shall be required for search under this sub- section. (4) The authority seizing any record or property under sub-section (1) or freezing any record or property under sub-section (1A) shall, within a period of thirty days from such seizure or freezing, as the case may be, file an application, requesting for retention of such record or property seized under sub-section (1) or for continuation of the order of freezing served under sub- section (1A), before the Adjudicating Authority." (emphasis added) 13. Section 18 deal....
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....arch, and the search shall be made in the presence of such persons. (7) The authority shall prepare a list of record or property seized in the course of the search and obtain the signatures of the witnesses on the list. (8) No female shall be searched by anyone except a female. (9) The authority shall record the statement of the person searched under sub-section (1) or sub-section (5) in respect of the records or proceeds of crime found or seized in the course of the search: (10) The authority, seizing any record or property under sub-section (1) shall, within a period of thirty days from such seizure, file an application requesting for retention of such record or property, before the Adjudicating Authority." (emphasis added) Thus, Section 17 confers a power to search a building, place, vessel, vehicle, etc. and to seize any record or property found during the search. Section 18 confers a power on the authority to search persons and seize record or property from them. 14. Section 2(w) of the PMLA defines 'records', which include records maintained in the form of books or stored in a computer or such other form as may be prescribed.....
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.... money-laundering and the property is required for the purposes of adjudication under section 8. (5) After passing the order of confiscation under sub-section (5) or sub-section (7) of section 8, Special Court, shall direct the release of all property other than the property involved in money-laundering to the person from whom such property was seized or the persons entitled to receive it. (6) Where an order releasing the property has been made by the Special Court under sub-section (6) of section 8 or by the Adjudicating Authority under section 58B or sub-section (2A) of section 60, the Director or any officer authorised by him in this behalf may withhold the release of any such property for a period of ninety days from the date of receipt of such order, if he is of the opinion that such property is relevant for the appeal proceedings under this Act. 21. Retention of records.-(1) Where any records have been seized, under section 17 or section 18 or frozen under sub-section (1A) of section 17 and the Investigating Officer or any other officer authorised by the Director in this behalf has reason to believe that any of such records are required to be retain....
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.... a copy of the list of the seized properties. 17. Under sub-section (2) of Section 21 of the PMLA, the person from whom the records are seized is entitled to a copy of the records, which include the record in the form of books or records stored in a computer. Therefore, the person from whom the record is seized is entitled to the copies thereof as a matter of right. 18. As stated earlier, the definition of 'property' under Section 2(b) includes deeds and instruments evidencing title or interest in such property or asset. The order of retention of the property under Section 20 does not amount to forfeiture of the property. The seized property does not vest in the ED. There is no prohibition on providing copies of the deeds or instruments evidencing title to the person from whom or from whose premises the deeds or instruments are seized. If the provision is interpreted to mean that the person from whom such deeds or instruments are seized is not entitled to receive even copies of the same, the provision will be rendered arbitrary and violative of Article 14 of the Constitution. Therefore, as far as the seized documents and records are concerned, the person from whom or from who....
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....available in the Court record and pages 1367 and 1368 have been numbered twice on different documents. It was also pointed out in paragraph 4 that certain pages mentioned in the application were legible in the Court file but illegible in the documents supplied to the appellant. By the order dated 30th March 2019, the said applications were dismissed. 21. The Special Court referred to a decision of the Delhi High Court in the case of Dharambir v. Central Bureau of Investigation 2008 SCC OnLine Del 336 : ILR (2008) 2 Delhi 842. The learned Special Judge held that: (a) The appellants have not stated that the prosecution was relying upon the documents, but the copies were not given to them; (b) It is not the case of the appellants that these documents which the prosecution has withheld, were of sterling quality, and if the same were produced, the appellants may be discharged; (c) In economic offences, the investigation is conducted at length and a large number of documents are collected, but not every document is relevant. The Investigating Officer files only those documents which are relevant for proving the case; and (d) In the relied upon docum....
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....ver, sub-section (1) of Section 46 starts with the words "save as otherwise provided in this Act". Considering the provisions of Section 46(1) PMLA, save as otherwise provided in PMLA, the provisions of the Code of Criminal Procedure, 1973 (for short "CrPC") shall apply to the proceedings before a Special Court. Therefore, once a complaint is filed before the Special Court, the provisions of Sections 200 to 204 CrPC will apply to the complaint. There is no provision in PMLA which overrides the provisions of Sections 200 to Sections 204 CrPC. Hence, the Special Court will have to apply its mind to the question of whether a prima facie case of a commission of an offence under Section 3 PMLA is made out in a complaint under Section 44(1)(b) PMLA. If the Special Court is of the view that no prima facie case of an offence under Section 3 PMLA is made out, it must exercise the power under Section 203 CrPC to dismiss the complaint. If a prima facie case is made out, the Special Court can take recourse to Section 204 CrPC." (emphasis added) Hence, the provisions of Sections 200 to 204 of the CrPC (Sections 223 to 227 of the BNSS) will apply to a complaint under Section 44(1)(b) of th....
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....clusion has been made by the police officer under sub- section (6) of section 173; (iv) the confessions and statements, if any, recorded under section 164; (v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173: Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused: Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. 208. Supply of copies of statements and documents to accused in other cases triable by Court of Session.- Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is tria....
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....ed to the accused. However, the learned Magistrate is not bound by the request made by the police officer. After considering the request, the learned Magistrate is empowered to reject the request of the police officer and supply the complete copies of such statements. It is pertinent to note that the Police have the power to apply for the exclusion of parts of only the statements. This power does not extend to the documents covered by clause (v) of Section 207. 28. Now, we come to Section 208 of the CrPC. When a case is instituted by way of a complaint under Section 200 of the CrPC, if it appears to the learned Magistrate issuing process that the offence is triable by a Court of Session, the learned Magistrate is duty bound to supply the copies of the statements recorded under Section 200 or Section 202 of all the persons examined by the learned Magistrate to the accused. He is also duty bound to supply to the accused the statements and confessions, if any, recorded under Section 161 or Section 164, and any document produced before the learned Magistrate on which the prosecution proposes to rely. Even Section 208 does not permit withholding of any documents from the accused. If ....
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....ocuments and statements which the prosecution relies on and are kept in the dark about other material, which the police or the prosecution may have in their possession, which may be exculpatory in nature, or absolve or help the accused. This Court is of the opinion that while furnishing the list of statements, documents and material objects under Sections 207/208 CrPC, the Magistrate should also ensure that a list of other materials, (such as statements, or objects/documents seized, but not relied on) should be furnished to the accused. This is to ensure that in case the accused is of the view that such materials are necessary to be produced for a proper and just trial, she or he may seek appropriate orders, under CrPC for their production during the trial, in the interests of justice. It is directed accordingly; the Draft Rules have been accordingly modified. [Rule 4(i)]" (emphasis added) Accordingly, Rule 4(i) of the Draft Criminal Rules of Practice, 2021 was formulated, which reads thus: "4. Supply of documents under Sections 173, 207 and 208 CrPC.- (i) Every accused shall be supplied with statements of witness recorded under Sections 161 and 164 CrPC and....
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....ocuments, material objects and exhibits seized during investigation and relied upon by the investigating officer (IO) in accordance with Sections 207 and 208CrPC. Explanation : The list of statements, documents, material objects and exhibits shall specify statements, documents, material objects and exhibits that are not relied upon by the investigating officer." This extract is taken from Manoj v. State of M.P., (2023) 2 SCC 353 : 2022 SCC OnLine SC 677 at page 452 209. In view of the above discussion, this Court holds that the prosecution, in the interests of fairness, should as a matter of rule, in all criminal trials, comply with the above rule, and furnish the list of statements, documents, material objects and exhibits which are not relied upon by the investigating officer. The presiding officers of courts in criminal trials shall ensure compliance with such rules." (emphasis applied) Therefore, what can be deduced from the above decisions is that the accused has the right to ask for the supply of documents not relied upon by the prosecution by making an application to the Court. The question is at what stage the accused can demand copies of the d....
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....r the Code". The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the court for summoning and production of a document as may be necessary at any of the stages mentioned in the section. Insofar as the accused is concerned, his entitlement to seek order under Section 91 would ordinarily not come till the stage of defence. When the section talks of the document being necessary and desirable, it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. If under Section 227, what is necessary and relevant i....
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....ements and confessions, if any, recorded under Section 164, Criminal Procedure Code and the statements recorded under Section 161, Criminal Procedure Code of all the persons whom the prosecution proposes to examine as its witnesses. 12. On a plain reading of Section 173, Criminal Procedure Code, it is clear that the same is wholly inapplicable to the facts of the present case. In the instant case no report had been sent under Section 173, Criminal Procedure Code. Therefore that provision is not attracted. That provision is attracted only in a case investigated by a police officer under Chapter XIV of the Criminal Procedure Code, followed up by a final report under Section 173, Criminal Procedure Code. It may be remembered that sub-section (4) of Section 173, was incorporated into the Criminal Procedure Code for the first time by Central Act 26 of 1955, presumably because of the changes effected in the mode of trials in cases instituted on police reports. Before the Criminal Procedure Code was amended by Act 26 of 1955, there was no difference in the procedure to be adopted in the cases instituted on police reports and in other cases. Till then in all cases irrespective of ....
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....ng to show that the legislature has applied its mind to the question of the amendment of the procedure so far as the investigation of an offence under the Sea Customs Act is concerned at the time when it was considering amendments to the Criminal Procedure Code" is without any basis. In the first place, it is not proper to assume except on very good grounds that there is any lacuna in any statute or that the legislature has not done its duty properly. Secondly from the history of the legislation to which reference has been made earlier, the reason for introducing Section 173(4) is clear. The learned judges of the High Court were constrained to hold that Section 173(4), Criminal Procedure Code in terms does not apply to the present case. But strangely enough that even after coming to the conclusion that provision is inapplicable to the facts of the present case, they have directed the learned Magistrate to require the prosecution to make available to the accused, the copies of the statements recorded from the prosecution witnesses during the enquiry under the Customs Act. They have purported to make that order under Section 94(1), Criminal Procedure Code which to the extent material....
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....ts in question, if not produced in court are likely to be destroyed or tampered with or the same are not likely to be made available when required. It has proceeded on the erroneous basis that the accused will not have a fair trial unless they are supplied with the copies of those statements even before the enquiry commences. Except for very good reasons, the High Court should not interfere with the discretion conferred on the trial courts in the matter of summoning documents. Such interferences would unnecessarily impede the progress of cases and result in waste of public money and time as has happened in this case." 35. This Court was considering the issue whether the benefit of Section 173(4) of the 1898 CrPC was available in cases instituted otherwise than on a police report. Section 173(4) of the 1898 CrPC required the officer in charge of a police station to forward documents mentioned therein along with the report. It is in that context that this Court observed that the requirement of Section 173(4) cannot be read into Section 94 of the 1898 CrPC (equivalent to Section 91 of the CrPC). This Court has not considered what is provided under Sections 207 and 208 of the CrPC. ....
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....essary to proceed to the next stage of framing the charges and making the accused to stand trial for the same. This Court has already cautioned against undertaking a roving inquiry into the pros and cons of the case by weighing the evidence or collecting materials, as if during the course or after trial vide Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609] . Ultimately, this would always depend upon the facts of each case and it would be difficult to lay down a rule of universal application and for all times. The fact that in one case the court thought fit to exercise such powers is no compelling circumstance to do so in all and every case before it, as a matter of course and for the mere asking. The court concerned must be allowed a large latitude in the matter of exercise of discretion and unless in a given case the court was found to have conducted itself in so demonstrably an unreasonable manner unbecoming of a judicial authority, the court superior to that court cannot intervene very lightly or in a routine fashion to interpose or impose itself even at that stage. The reason being, at that stage, the question is one of mere proprieties involved in t....
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....text of the prosecution producing new documents after the commencement of the trial. 39. Now, we come to the decision of this Court in the case of Abhishek Banerjee & Anr. v. Directorate of Enforcement 2024 INSC 668 : 2024 SCC OnLine SC 2454. The issue before this Court was whether the provisions of the CrPC and especially the safeguards under Sections 160 and 161 are applicable while summoning a person under the provisions of the PMLA. This Court considered the issue of the power of the ED to issue summons for the production of documents and not the power of the Court. This decision has no relevance to the issue of the right of the accused to apply for the production of documents that are not relied upon during the trial. 40. This Court in the case of V.K. Sasikala v. State (2012) 9 SCC 771 : 2012 SCC OnLine SC 799 considered the right of the accused to seek copies of certain unmarked and unexhibited documents at a belated stage after cross-examination of the prosecution witnesses had progressed. In this case, this Court relied upon its earlier decision in the case of Sidharth Vashisht alias Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1. In paragraphs 18 to 21 of the de....
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....e the documents/statements submitted before the court is absolute and it must be adhered to by the prosecution and the court must ensure supply of documents/statements to the accused in accordance with law. Under the proviso to Section 162(1) the accused has a statutory right of confronting the witnesses with the statements recorded under Section 161 of the Code thus indivisible. 217. Further, Section 91 empowers the court to summon production of any document or thing which the court considers necessary or desirable for the purposes of any investigation, inquiry, trial or another proceeding under the provisions of the Code. Where Section 91 read with Section 243 says that if the accused is called upon to enter his defence and produce his evidence there he has also been given the right to apply to the court for issuance of process for compelling the attendance of any witness for the purpose of examination, cross- examination or the production of any document or other thing for which the court has to pass a reasoned order. 218. The liberty of an accused cannot be interfered with except under due process of law. The expression 'due process of law' shall deem to inclu....
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.... the Code will have to be given a liberal and relevant meaning so as to achieve its object. Not only this, the documents submitted to the Magistrate along with the report under Section 173(5) would deem to include the documents which have to be sent to the Magistrate during the course of investigation as per the requirement of Section 170(2) of the Code. 220. The right of the accused with regard to disclosure of documents is a limited right but is codified and is the very foundation of a fair investigation and trial. On such matters, the accused cannot claim an indefeasible legal right to claim every document of the police file or even the portions which are permitted to be excluded from the documents annexed to the report under Section 173(2) as per orders of the court. But certain rights of the accused flow both from the codified law as well as from equitable concepts of the constitutional jurisdiction, as substantial variation to such procedure would frustrate the very basis of a fair trial. To claim documents within the purview of scope of Sections 207, 243 read with the provisions of Section 173 in its entirety and power of the court under Section 91 of the Code to su....
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.... other documents which are in the court's custody, an opportunity must be given to the accused to satisfy herself in this regard. It is not for the prosecution or for the court to comprehend the prejudice that is likely to be caused to the accused. The perception of prejudice is for the accused to develop and if the same is founded on a reasonable basis it is the duty of the court as well as the prosecution to ensure that the accused should not be made to labour under any such perception and the same must be put to rest at the earliest. Such a view, according to us, is an inalienable attribute of the process of a fair trial that Article 21 guarantees to every accused. 21. The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The question arising would no longer be one of compliance or non-compliance with the provisions of Section 207 CrPC and would travel beyond the confines of the strict language of the provisions of CrPC and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Ar....
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....ue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice." (emphasis added) 43. There is a similar provision in Chapter XIX of the CrPC, which deals with the trial of warrant cases by Magistrates. Section 243 (Section 266 of BNSS) is the provision which reads thus: "243. Evidence for defence. (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose....
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....the accused leading defence evidence. Therefore, it is provided that if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the court must issue such process. The prayer for issue of such process cannot be denied unless the court, for reasons to be recorded, holds that the application is made for the purposes of vexation or delay or for defeating the ends of justice. Therefore, the prayer for issuing process for production of documents can be denied by the court only on the limited grounds specified in sub- section (3) of Section 233 and sub-section (2) of Section 243. This right conferred on the accused is on a much higher pedestal than what is provided in Section 91 of the CrPC. Therefore, in case of a trial or trial by Court of Session, the accused under the PMLA can invoke Section 233 of CrPC (Section 256 of BNSS). 45. Therefore, at the stage of entering upon defence, an accused can apply for the issue of process for the production of any document or thing. 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....
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.... "22. As far as the applicability of Section 197CrPC to PMLA is concerned, there are two relevant provisions in the form of Sections 65 and 71 PMLA which read thus: "65. Code of Criminal Procedure, 1973 to apply.-The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act. *** 71. Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." 23. Section 65 makes the provisions of CrPC applicable to all proceedings under PMLA, provided the same are not inconsistent with the provisions contained in PMLA. The words "all other proceedings" include a complaint under Section 44(1)(b) PMLA. We have carefully perused the provisions of PMLA. We do not find that there is any provision therein which is inconsistent with the provisions of Section 197(1)CrPC. Considering the object of Section 197(1)CrPC, its applicability ca....
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....of an offence under the PMLA, due to the fact that Chapter XVIII of the CrPC is made applicable to such trial in view of clause (d) of Section 44(1) of the PMLA. We find that there is no provision under the PMLA which is inconsistent with Section 233 of the CrPC. 50. Section 24 of the PMLA is material. It reads thus: "24. Burden of Proof.-In any proceeding relating to proceeds of crime under this Act,- (a) in the case of a person charged with the offence of money-laundering under Section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money- laundering; and (b) in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money- laundering." This drastic provision was incorporated w.e.f. 15th February, 2013. In the case of Vijay Madanlal Choudhary & Ors. v. Union of India & Ors. 2022 INSC 757; (2023) 12 SCC 1, this Court upheld the constitutional validity of this provision, which puts a negative burden on the accused. 51. Thus, as compared to traditional penal statutes, at the time of trial of the offence under the PMLA, there is ....
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....twithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed. (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." (emphasis added) The accused can be released on bail only when the Special Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Therefore, at the time of hearing of a bail application, there is a burden on the accused to satisfy the Special Court that there are reasonable grounds for believing that he may not be guilty of the offence under Section 3 of the PMLA. This is an extraordinary and standalone provision which puts the burden on the accused at the stage of seeking bail. Therefore, the question is....
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....hat the principle of transforming constitutionalism also places upon the judicial arm a duty to ensure that a sense of transformation is ushered consistently in the society by interpreting and enforcing the constitutional as well as other provisions of law. Constitutional law has developed a great deal during the last few decades. The interpretation of various provisions of the Constitution made by this Court decades back has undergone a drastic change. For example, the narrow interpretation given to Article 21 in the "A.K. Gopalan" era is no longer valid. The concept of freedom has undergone changes. In the 21st Century, society looks completely different from what it looked in the last century. We see a change in the socio-cultural ethos of society. Thus, the interpretation of law must keep pace with changing needs of society." 54. We have seen a major shift in the interpretation of rights conferred by Article 21 of the Constitution after A.K.Gopalan' s case. When the Legislature has felt a need to bring out a legislation like the PMLA, it is the duty of the Court to interpret Article 21 in such a way that the right of a fair trial available to the accused is not affected. The....
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.... 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. (e) 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 a....