TaxTMI 
TaxTMI 
2025 (6) TMI 1896
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Code of Criminal Procedure preferred by the accused persons and directing the petitioner to produce and handover documents mentioned in the said petition to the accused persons. 2. Vide the order dated 09.02.2023, the Judge, 5th Special Court, Kolkata allowed the application under Section 91 Cr.P.C. filed by the accused persons. 3. The relevant part of the said order is reproduced here:- "Order No. 57 dated 09.02.2023 ..........Upon going through the list of documents are mentioned in paragraph '3' of the petitioner under consideration I find that these documents are all supposed to be in the custody of SEBI itself since it is their own documents. There is no concrete explanation of SEBI as to why these documents have not been handed over to the accused petitioners. It is the fact that the instant case has been filed by SEBI on the basis of WTM Order and other documents. However the petitioners have every right to demand the official documents of SEBI to dispose of the discharge petition since such official documents are in the custody of SEBI and by refusing to hand over the same to the petitioners, right of the petitioners to perha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....named would be frustrated. 2. At all material times, the dispute between the parties emanate from the interpretation and applicability of provisions of SEBI Act, 1992 vide Section 32 read with Section 30, and, inspite thereof SEBI insisting condition(d) of Regulation 71(1) of SEBI (Collective Investment Scheme) Regulation and 1999 with full knowledge of embargo in Section 14Y of W.B Land Reform Act, 1955 and also the interpretation of the documents exchanged and/or transpired by and between the accused and/of MPS GDL with the appropriate authorities of SEBI, being the Manager, at Eastern Regional office at L & T Chambers, 3rd floor at 16, Camac Street, Kolkata and/or whole time Member of Chairman at SEBI Bhawan, Bandra Kurla Complex, Mumbai-400051 in connection therewith and instituting diligently W.P. No. 27927(W) of 2012 (MPS GDL - Vs SEBI & Ors.) challenging the refusal of SEBI to grant final registration under SEBI (CIS) Regulation, 1999 to protect the land", acquired and improved upon, from the fund raised from bond holders. In this connection, copy of W.P. No. 27927(W) of 2012 (MPS GDL -Vs-SEBI & Ors.) are annexed hereto as part hereof and marked "J" and filed separa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t/trustees and segregation of CIS related activities from other business is under legal examination & SEBI shall revert back in due course (copy whereof is annexed and marked P-50 page 603 of W.P. No. 27927 (W) of 2012); (6) Letter dated 08.11.2010 by SEBI to MPS referring to letters dt 10.05.2010, 09/07/10 & 8/9/10, respectively for grant of final regn. Under SEBI (CLS) Regin. 1999 and referring to Sec. 16(2) of SEBI (CIS) Regn. 1999 and which states that CIMC (Collective Investment Management Company) shall appoint a Trustee who shall held the assets of the scheme for benefit of the unit holders" MPS thereby, are required to transfer all the assets properties of the Co. in the name of the Trustee who will held the properties in trust for benefit of the unit holders. The Deed of Conveyance would be required to be executed in favour of the Trustee (copy whereof annexed and marked P-53 at page 615 of W.P. No. 27927(W) at 2012); (7) Letter dated 24.11.2010 by MPS to L.R. Department of W.B. (14Y) referring to the exemption u/s 14Ydt. 05/05/2005 for 421 acres of land out of the project of 1200 acres at West Midnapore and also referring to the guideline SEBI(CIS) Regn.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....quo;mens rea‟ is fully absent by any stretch of imagination. [copy whereof is annexed and marked "F" hereto us part hereof]; (13) Letter dated 19/05/14 by MPS Greenery Developers Ltd. through accused no.1 to SEBI agreeing to the impounding by the authorities in compelling circumstances stated therein. [copy whereof is annexed and marked "G" hereto]; (14) W.P. No. 27921(W) of 2012, challenging the Order of SEBI, inter alia, REFUSING FINAL REGISTRATION, PENDING in Hon‟ble High Court [Copy where of is annexed and marked "J" hereto as part hereof]; (15) Settlement vide Order dated 23rd December, 2015 passed by Hon‟ble Division Bench presided by the then Hon‟ble Chief Justice Manjula Chellur in Class Action/PIL upon suggestions of the parties where SEBI as also CBI were parties respondents respectively [copy whereof is annexed and marked "H" hereto as part hereof]; (16) Notice by around or over 25% of the Bond-holders of MPS GDL under Regulation 73(7) of SEBI (CIS) Regulations, 1999 giving positive consent under Regulation 73(6) for continuation with CIS of the Company at their risk and responsibility and thereby CIS of the Com....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ith Sections 207 and 208 CrPC." 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" (emphasis added) Therefore, it is held 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. This decision upholds the right of the accused to apply for the supply of copies of the documents which are not relied upon by the prosecution at an appropriate stage by making an application to the Court. 32. This requirement was again quoted with approval in a decision of the Coordinate Bench of this court in the case....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 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. 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....