Won’t refusal by ED to supply documents violate liberty of accused at bail stage? Supreme Court asks

05/09/2024

New Delhi, Sep 4: The Supreme Court on Wednesday grilled the Enforcement Directorate (ED) over its stand that an accused cannot ask for each and every document collected by the agency during the investigation [Sarla Gupta and Another v. Directorate of Enforcement].
The bench of Justice Abhay S Oka, Justice Ahsanuddin Amanullah and Justice Augustine George Masih questioned how a document can be denied to accused merely over a technical ground.
"Sometimes there may be such a clinching document which ED may have. You say that this clinching document cannot be made available to the accused after filing of chargesheet. Whether it does not vitiate his right under Article 21?" asked the Court.
The Court further observed that times have changed when it comes to bail and courts and investigating agencies cannot be rigid when it comes to furnishing documents to accused. "Since this is a case for bail, times have changed, as to what extent we can say for documents to be protected. Both us and advocates on the other side, we have objective to do justice. Are we going to be so rigid that the person is facing prosecution but we go and say that the documents are protected? Will this be justice? There are cases so heinous where bail is given but nowadays people are not getting bail in Magistrate cases. Times are changing. Can we as this bench be so rigid?" said Justice Oka
The top court was hearing an appeal related to supply of deficient/illegible documents in a money laundering case.
During the hearing, the Court had detailed discussion with Additional Solicitor General (ASG) SV Raju on the subject, particularly on whether an accused for the purposes of bail can seek a document, before the stage of trial.

Raju said he was not opposed to supply of documents but an accused cannot have an assumption about something and then seek a roving enquiry on it.
However, Justice Oka said when the ED in a case under Prevention of Money Laundering Act (PMLA) retrieves thousands of documents and then relies on only few of them, the accused may not remember every document.
"He may then ask that whatever document has been recovered from my place," said the Court.
ASG responded that the accused would have the list of documents and can seek it under Section 91 of the Code of Criminal Procedure (CrPC).
"Unless it is 'necessary' and 'desirable', he cannot seek any documents. He has the list," Raju said.
The Court said in modern times, an accused can apply for documents running into 1,000 of pages which can be scanned within minutes.
There is no thought of delaying the trial, it observed.
However, ASG Raju persisted that the accused demonstrate that the document is necessary and desirable for trial. Questioning the argument, the Court asked how the accused would know the document is necessary without seeing it.
"Suppose he is not sure about this document being necessary and desirable, unless he sees it, how will he come to know," the Court asked. Raju responded that the accused can always seek inspection.
Justice Amanullah then observed that Section 91 of the CrPC has to be given a wider effect for a fair trial. The discussion then went on about the stage at which an accused can seek documents.
"If there is a seized document, the (accused) person must get a copy. Section 91 is clear for being applicable at any stage. Once seized document are given to one accused, the other must also get," said the Court.
ASG Raju said an accused by getting holding of a document before trial may vitiate an ongoing investigation.
"At the commencement of trial, he definitely has the right under Section 91. When he already has the document, what is the point of making an application," he added. The Court said in the present case, it was more focused on a situation in which the agency has disclosed the documents and the accused is asking for those documents.
The Court then said that after filing of chargesheet, an accused may not face any restriction for any document which he may require for purpose of bail.
"Only apprehension from your side that may arise is that during investigation, if he asks for document. Court can take a call by calling upon investigation body about the document and then take a call," it added.
At this stage, ASG Raju said,
"I have no problem with it. Take a case of terrorist who knows that there may be no document against him but against others, how will this work?"
Justice Oka said there should be no reason for accused to not be allowed to have documents at any stage of trial.
"Let court decide whether it is correct or not. For court to come to conclusion whether he is entitled to bail, he needs documents. Let court decide," Justice Oka said.
ASG Raju reiterated his stand that an accused at trial is entitled to a document he proves is necessary and desirable. He added that documents not relied upon can only be inspected but at the time of trial.
The Court then observed that at the stage of framing of charge, only the documents which are part of chargesheet can be looked into. It added that there would not be such restriction at bail stage.
"If he wants to rely on documents for the purpose in the case of bail or quashing, he has the right to do so," Justice Oka said. However, ASG Raju said there exists no such right.
The ASG also said that an accused would not entitled to produce documents at the stage of bail.
However, the Court said that case was limited to considering the aspect of discharge. ASG Raju in response reiterated his point on roving enquiry.
"If the accused makes a submission before the court that there is one specific document which I want to rely on which can exonerate me then it is fine. But he cannot do that give me these many documents and then this roving enquiry can lead to delay the trial. He can definitely tell the court about any specific document. He can always say that," he said.
The Court accordingly proceeded to reserve the judgment in the case.
"We are not going to facts. We are just going to the question of law as to what is the right of accused to seek documents. And we will see what we have to do," Justice Oka orally said. Senior Advocates R Basant and Gopal Sankaran-arayanan, appearing for the accused-appeallants, also made arguments before the Court reserved its judgment.

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