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

The Supreme Court on Wednesday (September 4) reserved judgment on the issue of entitlement of accused under the Prevention of Money Laundering Act (PMLA) to get seized documents that the prosecution does not rely on before the commencement of trial.

This issue emerged in an appeal against a Delhi High Court judgment, which held that the prosecution is not obligated to provide such documents at the pre-trial stage.

During the hearing today, a bench of Justice Abhay S Oka, Justice Ahsanuddin Amanullah, and Justice AG Masih questioned whether withholding "clinching" documents in the favour of an accused would violate the right under Article 21 of the Constitution.

“What troubles us is that when there can be a clinching document, which is very much there, very much exists, and only because of the procedural angles, the accused does not get that document. Does it not affect Article 21? Now the law has progressed, the interpretation of Constitution has progressed. Can now in today's world we say that there is a document in the existence, but relying upon some technicalities, you will not get it?”, the bench questioned.

The Court reserved judgment after hearing Senior Advocates R Basant and Gopal Sankaranarayanan for the appellant and Additional Solicitor General SV Raju for the Enforcement Directorate (ED).

The appellants have contended that the PMLA accused is entitled to get both relied-upon and un-relied upon documents at the earliest stage. The ED has contended the accused has the right to get the un-relied on documents only after framing of charges, and till the trial begins, the accused is only entitled to a list of the documents.

Responding to ASG Raju's contention regarding delay in the trial, the bench emphasised that in modern times, soft copies are available, and it is easy to scan and provide even bulky documents.

Raju contended that handing over the documents can impede the investigation, as though the investigation concerning a particular accused may be complete, it may still be ongoing qua other accused, and the concerned document may be relevant for that investigation.

He further contended that the accused is not entitled to a roving enquiry into un-relied upon documents which are totally irrelevant. He further emphasized that the accused in this case already has a list of the seized documents and can request specific documents from the court if necessary.

Justice Oka pointed out that if an accused needs documents to apply for bail or demonstrate a plausible defence, there should be no restriction on their access

“During bail proceedings there is no prohibition on court considering plausible defence of the accused...If he wants to rely on documents which are not in his custody, he has the right to get those documents. You can't say that he can only produce documents in his pocket. Otherwise it is arbitrary. Whether the document is of sterling quality that is for the court to decide”, Justice Oka remarked.

ASG Raju stated that the accused does not have the right to obtain these documents but can ask the court to look into the documents. He contended that if the accused claims that a specific document will exonerate, that is different. Raju stressed that allowing an accused to conduct a "roving inquiry" of all documents could lead to unnecessary delays in the trial.

“But he can't have a roving inquiry for un-relied on documents, say I will go through all of them, find if there's a document which affects me, which exonerates me, and then I will a make an application. From the list of say 500 documents they can say, from 1 to 10 are important I want inspection. 10 to 20 might be important that I still want inspection, balance I don't want. But what they are doing is asking to inspect everything. The trial is in disarray, how can you do that?”, Raju emphasised.

ASG Raju emphasized that a prima facie case must be made out that the document is relevant and the court must decide on the relevance of documents.

“In case documents are sought the trial court should examine the relevance in the context of right of defence. If it is relevant, give him a copy. What I am proposing is that I will give him a list. Accused look at the list and upon inspection he must make out a case that it is relevant, then we will furnish. In any case we will produce all documents the court wants to see. But there should not be delay in trial”, he added.

Senior Advocate R Basant has argued that under Sections 207 and 208 of the CrPC, all documents, whether relied upon or not, should be provided to the accused before the trial begins.

Basant said that section 207 CrPC applies post investigation prior to trial stage and makes it very clear that copies of documents have to be furnished. He further said that the issue of roving inquiry is illusionary, as once the accused makes an application to the court seeking un-relied on documents, the court can reject it if the court does not find it relevant.

The appellants have relied on Manoj Kumar v. State of Madhya Pradesh, which held that prosecution in all criminal cases shall furnish the list of statements, documents, material objects and exhibits which are not relied upon by the investigating officer. The appellants also relied on the judgment in Ponnuswamy v. State of Tamil Nadu, which held that accused has right to receive materials in possession of prosecution even if Draft Criminal Rules have not been adopted.

The bench earlier highlighted paragraph 17(a) of Ponnuswamy judgment which says disclosure requirement applies at the trial stage after framing of charge and questioned whether it could take a view emphasised by the appellants in light of the co-ordinate bench decision in Ponnuswamy.

During the hearing today, Justice Oka said that the bench is considering whether it should lay down the law in this issue or refer it to a larger bench.

Senior Advocate Sankaranarayanan highlighted that in Vijay Madanlal Chaudhary judgment, it was mentioned that the accused gets all the documents at the stage of filing of complaint itself, even before the stage of trial and framing of charge. Sankaranarayanan contended that the Ponnuswamy judgment, which was passed after the Vijay Madanlal judgment did not take this into consideration. He argued that the Ponnuswamy judgment was not for cases pertaining to the PMLA.

Sankaranarayanan stressed that unlike in ordinary criminal cases, the accused in PMLA cases has the onus to adduce evidence in every stage such as bail etc. and thus should get access to the access to documents at the early stage, before the commencement of trial.

Case no. – Crl.A. No. 1622/2022

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

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