TMI Blog2022 (11) TMI 1230X X X X Extracts X X X X X X X X Extracts X X X X ..... have already been supplied to the petitioners, the question for determination would now be as to whether the petitioners have any right for the supply of unrelied upon documents or not. Regarding supply of unrelied upon documents, the learned Amicus Curiae before the Hon'ble Supreme Court in Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials Versus The State of Andhra Pradesh and others [ 2021 (4) TMI 1270 - SUPREME COURT] had pointed out with regard to the supply of documents and statements at the time of the commencement of trial and the Hon'ble Supreme Court was of the opinion that while furnishing the list of statements, documents and material objects, the Magistrate should also ensure that list of other materials, even if they are not relied upon should be furnished to the accused. During the course of arguments Mr. Raju had submitted that even the Hon'ble Supreme Court was emphasizing on the list of statements, documents and material objects and not the supply of the documents which were unrelied upon. In pursuance of the aforesaid judgment the Hon'ble Punjab and Haryana High Court amended its Rules and Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case because the Delhi High Court had allowed inspection of the documents in view of CBI Manual which had provided for the same. So far as the another argument raised by the learned counsel for the petitioners that non-supply of all the documents would prejudice the rights of the petitioners and in so far as the right of fair trial to the petitioners is concerned, the said argument seems to be attractive but does not cut any ice. There is no doubt that every accused has a right to fair trial but in the present case the trial has not commenced as yet. The charges have not been framed in the present case and the petitioners are seeking supply of unrelied upon documents at the pre-charge stage and therefore, considering the aforesaid judgment of the Hon'ble Supreme Court , the petitioners can at the most be permitted to file an appropriate application for supply of list of unrelied upon documents, if they so require and so desire. Petition dismissed. - CRM-M-16317-2022 (O&M) And CRM-M-19965-2022 (O&M) - - - Dated:- 18-11-2022 - Hon ble Mr. Justice Jasgurpreet Singh Puri For the Petitioner in CRM-M-16317-2022 : Mr. Manav Gupta, Advocate, Mr. Abhinav Sood, Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) that the process of framing of charges may be deferred by this Hon'ble Court until a copy of the documents sought by this application are supplied to the Applicant/Accused. Similar prayer was made by the petitioner Parkash Gurbaxani in the other case and the prayer made by him is reproduced as under:- In view of the aforesaid fact, it is therefore prayed that the applicant/accused may kindly be supplied the documents list thereof seized by the Directorate of Enforcement from the office and premises of the applicant/accused during raids in the interest of justice . The Directorate of Enforcement filed separate replies to the aforesaid applications. It has specifically stated in the reply in the case of Ashok Solomon that all the documents which have been relied upon by the complainant have been supplied in the best possible condition as available with the Directorate of Enforcement and those documents mentioned in the application which are not relied upon with the impugned prosecution complaint, with that regard the investigation is continuing and ongoing and therefore, the list of remaining documents will be filed before the Court on completion of invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o categorize the un-relied documents at this stage and grave prejudice will be caused to the investigation if the present application is allowed. It is submitted that the documents are required for the purpose of investigation as well as adjudication u/s 8 of PMLA . The learned Special Judge, Gurugram considered the issue raised by their respective parties that it has to be seen whether at this stage when on the one hand, the charges are yet to be framed and the trial is yet to commence and on the other, the investigation is still in progress and therefore whether a direction should be issued to the complainant to return the un-relied upon documents or supply copy thereof, to the petitioners or not. The learned Special Judge, Gurugram noted that it is most relevant aspect that in the instant case the trial has not yet commenced as the charges are yet to be framed against the accused persons and therefore, it has to be kept in mind that the case is still at an enquiry stage and also relied upon the judgment of the Supreme Court in State of Orissa Versus Debendra Nath Padhi [2005 (1) SCC 568] that at the time of framing of charges or taking cognizance, the accused has no righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in Re: To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials Versus The State of Andhra Pradesh and others [Suo Moto Writ (Crl.) No.1/2017, decided on 20.04.2021] wherein the Hon'ble Supreme Court had directed for adoption of the Draft Rules of Criminal Practice, 2021 by all the High Courts. Reference was made to para No.11 in which it was observed that while furnishing the list of statements, documents and material objects under Sections 207/208 of the Code of Criminal Procedure , the Magistrate should also ensure that a list of other materials (such a statements, or objects /documents seized, but not relied on) should be furnished to the accused. Para No.21 of the judgment relates to the Draft Criminal Rules and referred to para No.4 pertaining to supply of documents under Sections 173, 207 and 208 of the Code of Criminal Procedure. He further submitted that the aforesaid Draft Rules have already been duly adopted by this Court. 3. Learned counsel relied upon a judgment of Delhi High Court in Central Bureau of Investigation Versus M/s. INX Media Pvt. Ltd. and others [CRL. M.C No.1338 of 2021, decided on 10.11.2021] and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for denying a copy of the same to the petitioner since denial of the same will cause prejudice to the petitioner. He submitted that it is only on the basis of the documents which have been seized and provided to the petitioners, he will be able to confront the prosecution witnesses and therefore, it was within his right to claim those documents. He has further submitted that since it was a case of a complaint case, the filing of supplementary charge-sheet, if any, under Section 173 (8) of the Code of the Criminal Procedure will not apply to the present case and that there can be no supplementary charge-sheet and therefore the unrelied upon documents cannot be denied to the petitioner. Submissions by learned counsel for the respondent Mr. S.V. Raju, learned Additional Solicitor General of India with Mr. Shobit Phutela, Advocate argued on behalf of the respondent on 09.08.2022. He made the following submissions: 1. Mr. Raju submitted that the petitioner in the case of Ashok Solomon has already confined the scope of the present petition only to the extent of inspection of the unrelied upon documents at the first instance and has reserved his right to seek copy of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings on the filing of a complaint by virtue of Section 44 (1) (b) of PMLA and it is evident that the cognizance of the offence is taken upon a complaint. He further submitted that it is a settled principle of law that an accused is not entitled to documents, let alone unrelied documents, filed alongwith a complaint and made reference to Section 204 of the Code of Criminal Procedure which provides for a issue of process and sub Section 3 provides that in a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint and therefore, in view of the aforesaid position, the petitioners were entitled only for a copy of the complaint which has already been supplied to the petitioners. Even if it is to be assumed but no admitted that a term complaint refers to the documents filed alongwith the complaint, even then the accused is entitled to the documents relied upon in the complaint and cannot seek unrelied upon documents. 6. He further referred to a judgment of Supreme Court in the case Assistant Collector of Customs Versus L.R Melwani [1969(2) SCR 438] and also a judgment of Calcutta H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said explanation to Rule 6, the accused is entitled only to the list documents which are not relied upon and not the documents itself. He further submitted that Section 208 Cr.P.C under which the present application was filed by the petitioners is not applicable in the present case and the aforesaid provision applied only in cases where a case is to be committed to the Court of Sessions by a Magistrate. However, a complaint under the PMLA is filed directly before the Court of learned Special Judge and therefore, since there is no committal, the provision of Section 208 Cr.P.C is not attracted. He submitted that Section 208 Cr.P.C is applicable only to a Magistrate before he commits a case to the Court of Sessions but a Special Judge trying an offence under PMLA is neither a Court of Magistrate nor a Court of Sessions but is a Special Court by virtue of Sections 43 and 44 of the PMLA and therefore, Section 208 Cr.P.C will not apply in the present case. He submitted that there is no provision under the Code of Criminal Procedure or under the PMLA which provides a right to the petitioners to seek a copy of unrelied upon documents and in the absence of any such provision there is no ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the documents which were seized by the ED during raids could be supplied to the petitioners or not. There can be a further split in the aforesaid issue as to what kind of documents can be supplied to the petitioners which can be bifurcated into 'relied upon documents' and 'unrelied upon documents. Apart from the above, whether the petitioners are entitled for the documents which were not relied upon by the complainant or only list thereof. The learned counsel for both the petitioners have submitted that every document seized during investigation was required to be produced before the trial Court and should be furnished to the accused whether relied upon or not relied upon by the prosecution. It was further argued by the learned counsels that in case all the documents are not supplied to the petitioners, then it prejudices their rights and withholding of such documents will prevent them from properly defending them and it is the duty of the Investigating Officer to make available all the documents which were seized at the time of raid. The learned counsels have also relied upon the provisions of Section 208 of the Code of Criminal Procedure and some judgments of Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk about the other material and the Hon'ble Supreme Court observed that it is of the opinion that while furnishing the list of statements, documents and material objects under Section 207/208 Cr.P.C, the Magistrate should also ensure that a list of other materials (such as statements, or objections/documents seized, but not relied on) should be furnished to the accused 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 the Cr.P.C for their production during the trial, in the interest of justice. In para No.21 Draft Criminal Rules on Practice, 2021 have been incorporated and vide para 4 of the same it has been provided in the Draft Rules that every accused shall be supplied with statements of witnesses recorded under Section 161 and 164 Cr.P.C and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer in accordance with Sections 207 and 208 Cr.P.C. Para 11 and Para 21(4) are reproduced as under:- XXX XXX XXX 11. The Amici Curiae pointed out that at the commencement of trial, accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I pertaining to Procedure in enquires and trials by Magistrate and Rule 6 was substituted on 10.12.2021. The aforesaid Rule 6 is reproduced as under: 6. Warrant case on Police report Police to furnish copies to accused before the trial commences:-In a warrant-case (Chapter XIX of the Code of Criminal Procedure, 1973) the procedure would now depend on whether the case has been instituted on a police report or otherwise. Section 238 to 243 of Code of Criminal Procedure, 1973 govern the procedure in warrant cases instituted on police reports. When the accused appears or is brought before the magistrate, the magistrate should, at the commencement of the trial, satisfy himself that he has complied with the provisions of Section 207 Cr.P.C. Further, every accused should be supplied with statements of witness recorded under Sections 161 and 164 Cr.P.C and a list of documents, material objects and exhibits seized during investigation and relied upon by the Investigating Officer in accordance with Sections 207 and 208 Cr.P.C. Explanation: The list of statements, documents, material objects and exhibits shall specify statements, documents, material objects and exhibits that are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d nothing more and therefore, what is to be seen at the stage of framing of charges is the relied upon documents and not the unrelied upon documents. In the present case the charges are yet to be framed and therefore, considering the aforesaid judgment of the Hon'ble Supreme Court as well as the Punjab and Haryana High Court Rules and Orders, the petitioners would not be entitled for the supply of unrelied upon documents. At the most in case the petitioners so require or demand, then they may file appropriate application for supply of a list of the unrelied upon documents before the learned Special Judge in accordance with law. So far as the judgment relied upon by the learned counsels for the petitioners in CBI Versus INX Media Pvt. Ltd. (Supra) is concerned, the facts of the aforesaid judgment would not be applicable to the present case because the Delhi High Court had allowed inspection of the documents in view of CBI Manual which had provided for the same. There is a force in the argument raised by the learned counsel for the respondent that such kind of provision is not available either under the PMLA or under the Cr.P.C and in the absence of any specific provision, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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