In CRM-M-16317-2022 (O&M)-PUNJ HC- Petitioners can at most be permitted to file appropriate application for supply of list of unrelied upon documents in case where charges have not been framed and petitioners seek supply of such documents at pre-charge stage: P&H HC
Justice Jasgurpreet Singh Puri [18-11-2022]

 Read Order: Ashok Solomon v. Directorate of Enforcement

LE Correspondent

Chandigarh, November 24, 2022: In a PMLA matter where the petitioners had filed a petition u/s 482 CrPC against the orders of the Special Judge, Gurugram whereby applications for supply of copies of documents seized by the Directorate of Enforcement during conduct of raids were dismissed, the Punjab and Haryana High Court has held that the petitioners shall be at liberty to move an appropriate application before the Special Judge seeking supply of list of either relied upon or not relied upon documents.

Referring to the Draft Rules of Criminal Practice, 2021 incorporated by the Punjab & Haryana High Court,  Justice Jasgurpreet Singh Puri said, “In other words it has been so provided by the aforesaid Rules that those documents which are not relied upon by the Investigating Officer, qua them a list should be supplied to the accused person.”

“However, there is nothing in the aforesaid Rules that the unrelied upon documents should also be supplied to the accused”, the Bench observed. 

The Bench also observed, “A perusal of the same would show that the same is in consonance with the aforesaid Draft Rules and these Rules also provide that every accused should be supplied with the 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. The explanation further provides that 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”.

In 2019, the Directorate of Enforcement (ED) conducted raids on different premises of the accused and seized various documents and a seizure memo was prepared. Following this, a complaint under Sections 44 and 45 of the PMLA was filed before the Special Judge, Gurugram. 

The petitioner filed an application under Section 208 of the Code of Criminal Procedure for the supply of copies of the documents seized with a further prayer that the framing of charges may be deferred until the copies of the documents are supplied to the petitioner. 

In response, the ED stated that all the documents which were relied upon by the complainant were supplied (in the best possible condition as available to it) and that with regard to the documents mentioned in the application, the investigation was ongoing, therefore, the list of remaining documents will be filed before the Court on completion of the investigation.

The Special Judge, Gurugram noted that in the instant case, the trial did not commence as the charges were yet to be framed and the case was still at an enquiry stage. The Court added, “since the present case is at the stage of framing of charges only and as such the accused has no right to seek the assistance of any document or refer to such a document, which is not part of the record”. 

It was also observed that the right of defence of an accused is a valuable right but the material question relevant was the stage when such a right can be exercised. The lower Court also opined that once the trial commences, the stage will arrive when the petitioners will be given an opportunity to adduce evidence in their defence and at that stage, the request of the applicants/petitioners to supply the copies of un-relied upon documents may be relevant but at this stage when the trial was yet to commence the above request was premature. 

The question which arose in these two petitions was whether the petitioners were entitled to supply documents which were allegedly seized by the Directorate of Enforcement or not.

The Court observed that the application prayed for the supply of copies of the documents seized during the raids vide seizure memo but no distinction was made in the prayer clause with regard to relied upon or un-relied upon documents. Since the relied-upon documents were already supplied to the petitioners, the question for determination would now be as to whether the petitioners have any right to the supply of unrelied-upon documents or not. 

Further, the Court also observed the amendment made by the Punjab and Haryana High Court in its Rules and Orders. Amendment was effected in Chapter-1, Part D of Volume III pertaining to Procedure in inquiries and trials by Magistrate and Rule 6 was substituted on December 10, 2021. 

From a perusal of the same, the Court observed, 

“... the same is in consonance with the aforesaid Draft Rules and these Rules also provide that every accused should be supplied with the statements of witnesses recorded under Sections 161 and 164 Cr.P.C. and a list of documents, material objects and exhibits seized during the investigation and relied upon by the Investigating Officer in accordance with Sections 207 and 208 Cr.P.C. The explanation further provides that 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.”

In other words, the Court observed that the aforesaid Rules provided that those documents which are not relied upon by the Investigating Officer, qua them a list should be supplied to the accused person. However, there is nothing in the aforesaid Rules that the unrelied upon documents should also be supplied to the accused.

Adverting to the present case, the Court observed that the petitioners were seeking a supply of all the documents which were either relied upon or not relied upon, however, the relied-upon documents were already supplied to the petitioners in view of the categorical stand taken by the ED not only before the Special Judge but also before this Court. 

So far as the unrelied-upon documents were concerned, the Court held that as per aforesaid Punjab and Haryana High Court Rules and Orders, the petitioners may ask for a list of those documents which are not relied upon by the Investigating Officer. 

“However, the petitioners have not prayed for seeking a list of the documents which are not relied upon by the prosecution either in the present petitions or before the learned Special Judge but they have prayed for supply of all the documents”, the Court held. 

While dismissing the petition, the Court held, 

“However, the petitioners shall be at liberty to move an appropriate application before the learned Special Judge, Gurugram seeking supply of list of any documents either relied upon documents or not relied upon documents and in case any such appropriate application is filed by the petitioners before learned Special Judge, Gurugram, then the same shall be considered and decided by the learned Special Judge, Gurugram in the light of aforesaid judgments, Punjab and Haryana High Court Rules and Orders and strictly in accordance with law as expeditiously as possible”.