PMLA | Is Accused Entitled To Documents Which Prosecution Isn't Relying Upon In Trial? Supreme Court To Examine

The Supreme Court is set to examine the applicability of the provisions of the Code of Criminal Procedure (or its new replacement the Bharatiya Nagarik Suraksha Sanhita) to cases under the Prevention of Money Laundering Act (PMLA) on the issue of the prosecution's obligation to supply documents to the accused.

A bench of Justice Abhay S Oka, Justice Ahsanuddin Amanullah and Justice Augustine George Masih was hearing an appeal against a Delhi High Court judgment that held that the prosecution is not required to furnish documents, on which it is not going to rely, to the accused at the pre-trial stage.

“We will hear you on this. Somebody is accused. He says that there is a document that is better to his defence. Can he not say that I must get that document?”, Justice Oka asked Additional Solicitor General SV Raju.

During the proceedings, the counsel for the accused highlighted that Section 207 (supply to the accused of copy of police report and other documents) of the CrPC is central to this issue.

Justice Oka referenced a previous order, highlighting that once a complaint is filed, it is governed by the CrPC starting from section 200 onwards. In Tarsem Lal v. Directorate of Enforcement, the Supreme Court has held that once a complaint under Section 44(1)(b) of the PMLA is filed, it will be governed by Sections 200 to 205 of the CrPC.

The counsel for the accused submitted that the impugned judgment disagrees with this view. He further said that the issue involved is of the right of the accused under Article 21 of the Constitution. “Can prosecutors in this country have documents with them that may help the accused, and say I'm not relying on it so I won't show it to you?”, he questioned.

ASG Raju maintained that till the trial begins, the accused is only entitled to a list of the documents. He further submitted that under Section 102 of CrPC, even if documents are seized from the accused's premises, the accused are only entitled to a list, not the documents themselves.

Raju suggested that the accused could apply under Sections 451 (order for custody and disposal of property pending trial in certain cases) or 457 (procedure by police upon seizure of property) of the CrPC to obtain the documents from the court.

The court permitted the parties to file brief submissions within two weeks and scheduled the matter for hearing on August 22, 2024.

Background

The case stems from an FIR dated July 5, 2017, alleging offences under Section 120-B read with Section 420 of the IPC and Section 13(1)(d) of the Prevention of Corruption Act (PC Act). The Directorate of Enforcement recorded an ECIR on July 26, 2017, initiating investigations under Section 5 of the PMLA against Lara Projects LLP and its directors/shareholders.

Attachment proceedings under Section 5 of the PMLA were conducted, and a criminal complaint was filed against the petitioners for offences under Sections 3 and 4 of the PMLA.

The petitioners filed writ petitions in Delhi HC challenging a common order dated March 30, 2019, passed by the Special Judge (PC Act) dismissing applications filed by them requesting the supply of deficient or illegible documents.

In one writ petition, the impugned order was challenged on the grounds that the PMLA proceedings are governed by CrPC provisions, necessitating strict compliance with Section 208 of the CrPC. The petitioners argued that the documents supplied by the prosecution span eight volumes with 3,535 pages, yet preliminary scrutiny revealed deficiencies and missing documents.

In the other writ petition, the petitioners claimed that preliminary scrutiny of the supplied documents revealed deficiencies and illegibility, warranting the granting of their application under Section 207 of the CrPC. The petitioners argued that the deficient documents are integral to the relied-upon documents, and their absence would compromise a fair consideration of the charges. The petitioners cited cases of Manu Sharma v. State and VK Sasikala v. State.

The ED contended that at the pre-charge stage, only documents relied upon by the prosecution and filed with the complaint need to be supplied. ED argued that the scope of Section 207 CrPC applications is limited. The ED cited cases of Dharambir v. CBI and Dinesh Puri v. State.

The Delhi High Court held that neither Section 207 nor Section 208 of the CrPC can be applied mutatis mutandis to PMLA proceedings. The court emphasized that the trial begins with the framing of charges, and the pre-charge stage does not constitute a trial. The order relied on the observations and conclusions drawn in Dharambir's case, which state that the prosecution is only obligated to furnish documents it proposes to rely upon.

Case no. – Crl.A. No. 1622/2022

Case Title – Sarla Gupta and Anr. v. Directorate of Enforcement