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TMI Blog2025 (5) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... and 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 PMLA') was filed before the Special Court on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 Procedure, 1898 (for short, 'the 1898 CrPC'). He submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submitted that it is held by this Court that an accused is entitled to only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court, reliance was placed on the decision of this Court in the case of Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re1. 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: "17. Search and seizure.- (1) Where the Director or any other officer not below the rank o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 deals with the power to search persons and seize records or property in their possession. Section 18 reads thus: "18. Search of persons.-(1) If an authority, authorised in this behalf by the Central Government by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcept 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. 'Property' is defined under Section 2(v), meaning any property or assets of every description, whether corporeal or incorporeal, moveable or immoveable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets wherever located. Thus, deeds and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 retained for any inquiry under this Act, such records may if seized, be retained or if frozen, may continue to remain frozen, for a period not exceeding one hundred and eighty days from the day on which such records were seized or frozen, as the case may be. (2) The person, from whom records seized or frozen, shall be entitled to obtain copies of records. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inition 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 whose premises the seizure has been made is entitled to get the true copies thereof. As far as the other property seized is concerned, the person from whom the property is seized is entitled to a copy of the seizure memo and the list of the properties seized. 19. In this case, we are called upon to decide only the issue of the supply of seized documents and records. To that extent, the Special Court and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh 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 documents, there is a reference to innumerable other documents which are not relied upon. A direction cannot be issued to the prosecution to supply such documents. 22. In the impugned judgment, the High Court also relied upon the decision of the Delhi High Court in the case of Dharambir2. It was further held that neither Section 207 nor Section 208 of the CrPC can be applied mutatis mutandis to the proceedings/complaint under the PMLA. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the PMLA. 25. As held by this Court, Section 204 of the CrPC (Section 227 of the BNSS) is applicable to a complaint under Section 44(1)(b) of the PMLA. Sub-section (3) of Section 204 of the CrPC (sub-section (3) of Section 227 of the BNSS) reads thus: "204. Issue of Process - .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art 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 triable exclusively by the Court of Session, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:- (i) the statements recorded under section 200 or section 202, of all persons examined by the Magistrate; (ii) the statements and confessions, if any, recorded under section 161 or section 164; (iii) any documents produced before the Magistrate on which the prosecution proposes to rely: Provided that if the Magistrate is satisfied that any such document is voluminous, he shall, instead of fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 a document is bulky, it allows the accused to inspect it. 29. If we peruse Sections 209 and 238 of the CrPC ( Sections 232 and 261 of the BNNS), these provisions reiterate the mandatory requirement of providing the documents referred to in Sections 207 and 208 of the CrPC. 30. Both Sections 207 and 208, on the face of it, do not specifically apply to a complaint under Section 44(1)(b) of the PMLA. But, there is no reason why the principles laid down under Sections 207 and 208 should not be applied to a complaint under Section 44(1)(b) of the PMLA. The provisions are consisten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 a list of documents, material objects and exhibits seized during investigation and relied upon by the investigating officer (IO) in accordance with 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 en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh 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 documents. WHETHER AN ACCUSED IS ENTITLED TO SEEK COPIES OF THE DOCUMENTS NOT RELIED UPON BY THE PROSECUTION AT THE STAGE OF FRAMING OF CHARGE 33. At this stage, we may make a reference to the decision of this Court in the case of Debendra Nath Padhi3. This Court was considering the provision of discharge under Section 227 of the CrPC, which reads thus: "227. Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 is only the record produced in terms of Section 173 of the Code, the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence. Under Section 91 summons for production of document can be issued by court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. Section 91 presupposes that when the document is not produced process may be initiated to compel production thereof." (emphasis added) Thus, this Court observed that the entitlement of the accused to seek an order under Section 91 of the CrPC for the produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-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 the fact whether they were instituted on police reports or on private complaints, the procedure regarding enquiries or trials was identical. In both type of cases, there were two distinct stages i.e. the enquiry stage and the trial stage. When the prosecution witnesses were examined in a case before a charge is framed, it was open to the accused to cross- examine them. Hence there was no need for making available to the accused the documents mentioned in sub Section (4) of Section 173, Criminal Procedure Code. The right given to him under Section 162, Criminal Procedure Code was thought to be sufficient to safeguard his interest. But Act 26 of 1955 as mentioned earlier made substantial changes in the procedure to be adopted in the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... angely 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 for our present purpose reads: "Whenever any Court ... considers that production of any document or other thing is necessary or desirable for the purposes of any ... enquiry, trial or other proceeding under this Code by or before such Court ... such Court may issue a summons ... to the person in whose possession and power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order." This section does not empower a Magistrate to direct the prosecution to give copies of any documents to an accused person. That much appears to be plain from the language of that section. It was impermissible for the High Court to read into Section 94, Criminal Procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 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. In any case, this Court was not considering the right of the accused to apply under Section 91 of the CrPC at the time of leading defence evidence. 36. The right of the accused to apply under Section 91 of the CrPC for production of the documents not relied upon by the prosecution at the stage of leading defence evidence has been recognised by the decisions of this Court including the decisions in the cases of Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re1 and Manoj & Ors5. 37. In the case of Om Prakash Sharma v. CBI, Delhi (2000) 5 SCC 679 : 2000 SCC OnLine SC 776, this Court dealt with the issue whether an application under Section 91 of the CrPC can be made by the accused at a stage before framing of a charge. In paragraph 6 of the decision in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 the exercise of judicial discretion by the court and not of any rights concretised in favour of the accused." Thus, this decision will have no application when it comes to the right of the accused to apply for the production of documents by invoking Section 91 of the CrPC at the stage of entering defence. The decision means that the said right is ordinarily not available at the time of framing of the charge. The reason is that while framing a charge, the Court can consider only that material which forms part of the chargesheet. 38. In the case of a complaint under Section 44(1)(b) of the PMLA, while framing charge, the Court can look into only the complaint and the documents produced along with the complaint. In the case of Nitya Dharmananda & Anr. v. Gopal Sheelum Reddy & Anr. 2017 INSC 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decision in the case of V.K. Sasikala v. State11 it was held thus: "18. In a recent pronouncement in Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] to which one of us (Sathasivam, J.) was a party, the role of a Public Prosecutor and his duties of disclosure have received a wide and in- depth consideration of this Court. This Court has held that though the primary duty of a Public Prosecutor is to ensure that an accused is punished, his duties extend to ensuring fairness in the proceedings and also to ensure that all relevant facts and circumstances are brought to the notice of the Court for a just determination of the truth so that due justice prevails. The fairness of the investigative process so as to maintain the citizens' rights under Articles 19 and 21 and also the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss 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 include fairness in trial. The court (sic Code) gives a right to the accused to receive all documents and statements as well as to move an application for production of any record or witness in support of his case. This constitutional mandate and statutory rights given to the accused place an implied obligation upon the prosecution (prosecution and the Prosecutor) to make fair disclosure. The concept of fair disclosure would take in its ambit furnishing of a document which the prosecution relies upon whether filed in court or not. That document should essentially be furnished to the accused and even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of the Prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused. 219. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 summon documents signifies and provides precepts which will govern the right of the accused to claim copies of the statement and documents which the prosecution has collected during investigation and upon which they rely. 221. It will be difficult for the court to say that the accused has no right to claim copies of the documents or request the court for production of a document which is part of the general diary subject to satisfying the basic ingredients of law stated therein. A document which has been obtained bona fide and has bearing on the case of the prosecution and in the opinion of the Public Prosecutor, the same should be disclosed to the accused in the interest of justice and fair investigation and trial should be furnished to the accused. Then that document should be disclosed to the accused giving him chance of fair defence, particularly when n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose 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 of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross- examined or had the opportunity of cross- examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. (3) The Magistrate may, before summoning any witness on an application under sub- section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court." (emphasis added) 44. At this stage, we may note the difference between the provisions of Section 91 of CrPC and Sections 233 and 243 of CrPC. Section 91 of CrPC read thus: 91. Summons to produce document or other thing.-(1) Whenever any Court or any officer in charge of a police station considers that the production of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction 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. 46. If, according to the case of the accused, the prosecution or any of the witnesses examined by the prosecution is withholding a document, in his cross-examination, the accused can always ask questions to the concerned prosecution witnesses whether they were willing to produce the said document. On the witnesses' refusal or fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is inconsistent with the provisions of Section 197(1)CrPC. Considering the object of Section 197(1)CrPC, its applicability cannot be excluded unless there is any provision in PMLA which is inconsistent with Section 197(1). No such provision has been pointed out to us. Therefore, we hold that the provisions of Section 197(1)CrPC are applicable to a complaint under Section 44(1)(b) PMLA. 24. Section 71 gives an overriding effect to the provisions of PMLA notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Section 65 is a prior section which specifically makes the provisions of CrPC applicable to PMLA, subject to the condition that only those provisions of CrPC will apply which are not inconsistent with the provisions of PMLA. Therefore, when a particular provision of CrPC applies to proceedings under PMLA by virtue of Section 65 PMLA, Section 71(1) cannot override the provision of CrPC which applies to PMLA. 25. Once we hold that in view of Section 65 PMLA, Section 197(1) will apply to the provisions of PMLA, Section 71 cannot be invoked to say that the provision of Section 197(1)CrPC will not apply to PMLA. A provision of CrP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penal statutes, at the time of trial of the offence under the PMLA, there is a huge negative burden put on the accused. Therefore, it is all the more necessary that sub-section (3) of Section 233 of CrPC (Sub-section (3) of Section 256 of the BNSS) should be liberally construed in favour of the accused. The reason is that the constitutional validity of Section 24 has been upheld on the ground that the accused has a full opportunity to show that he has not violated the provisions of the PMLA. He is entitled to rebut the presumption. Therefore, if the Special Court refuses the prayer made by the accused in terms of Sub-section (3) of Section 233 for compelling the attendance of any witness or for production of a document in custody of ED or a third party, the accused will not be in a position to discharge the onerous burden on him under Section 24 of the PMLA. Hence, the valuable right of the accused under Section 233(3) of the CrPC needs to be protected. THE RIGHT TO SEEK PRODUCTION OF DOCUMENTS FOR THE PURPOSES OF BAIL APPLICATIONS GOVERNED BY SECTION 45(1)(ii) 52. In the context of the PMLA, another issue arises. Section 45 of the PMLA reads thus: "45. Offences to be cognizabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s whether, at the stage of considering the prayer for bail, the accused, by invoking Section 91 of the CrPC (Section 94 of the BNSS), can apply to get the documents produced. If a narrow view is taken, by denying this opportunity to the accused, he will not be in a position to discharge the burden on him, and therefore, it will affect his right to liberty as he may be denied bail. This denial will amount to a violation of his rights guaranteed under Article 21. Therefore, at the stage of hearing of a bail application to which stringent provisions of Section 45(1)(ii) of the PMLA are applicable, the accused must be allowed to invoke the provision of Section 91 of the CrPC for seeking production of the documents not relied upon by the ED. But, when the investigation is pending, while permitting the accused to seek production of documents that are not relied upon by invoking Section 91 of the CrPC, care has to be taken to ensure that the investigation is not prejudiced. Therefore, when such an application is made, the ED is entitled to resist the production of documents that are not relied upon on the ground that if the said documents are disclosed at that stage to the accused, it may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 24 or 45(1)(ii) is not to take away the fundamental right of fair trial conferred on the accused. These provisions are different in the sense that they put a burden on the accused. When such a burden is put on the accused, it is all the more necessary that the right of fair trial guaranteed under Article 21 to the accused is protected by permitting the accused to lead defence evidence by seeking the production of witnesses and documents not relied upon by the prosecution. Similarly, for discharging the burden under Section 45(1)(ii), the accused has the right to invoke Section 91 of CrPC (Section 94 of the BNSS) for seeking production of documents at the stage of hearing of bail application. CONCLUSION 55. Hence, some of our important conclusions are as under: (a) When records, instruments or documents of title of the property are seized along with the property under Sections 17 and 18 of the PMLA, the accused from whom the same are seized is entitled to true copies thereof; (b) Once cognizance is taken on the basis of a complaint under Section 44(1)(b) of the PMLA, the learned Special Judge must direct that along with the process, a copy of the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise 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. (f) When at the stage of defence evidence of the accused, documents are produced on the prayer of the accused and the accused desires to cross-examine any of the prosecution witnesses based on the said documents, it is always open for the accused to apply under Section 311 of the CrPC (Section 348 of the BNSS) to recall a prosecution witness already examined for further cross-examination. The reason is that the right to effectively cross-examine the prosecution witnesses is also a part of the right to have a fair trial. The accused can exercise this right even if evidence of both sides is closed. (g) As compared to traditional penal statutes, at the time of trial of the offence under the PMLA, there is a huge negative burden put on the accused. Therefore, it is all the more necessary that sub-section (3) of Section 233 of CrPC (Sub- se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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