Vijay Pal Tripathi vs Union Of India & Anr
2019 Latest Caselaw 3340 Del

$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                           Date of Decision: July 22, 2019

%      W.P.(CRL.) 1319/2019 and CRL.M.A. 9696-9697/2019

       SARLA GUPTA & ANR                               ..... Petitioners
                    Through            Mr. R.K. Handoo, Advocate with
                                       Mr.Aditya Chaudhary, Advocate.
                              versus

       DIRECTORATE OF ENFORCEMENT            ..... Respondent
                    Through Mr. Amit Mahajan, CGSC/UOI with
                            Mr. Randeep Sachdeva and Mr.Kunal
                            Dutt, Advocates.
+      W.P.(CRL) 1164/2019 and CRL.M.A. 8513-8514/2019, 10070/2019

       VIJAY PAL TRIPATHI                                ..... Petitioner
                     Through           Mr. Pavan Narang, Advocate with
                                       Mr.Siddharth Handa, Mr. Himanshu
                                       Sethi and Mr. Ketan Goel, Advocates.
                              versus

       UNION OF INDIA & ANR                             ..... Respondents
                     Through           Mr. Amit Mahajan, CGSC/UOI with
                                       Mr. Randeep Sachdeva and Mr.Kunal
                                       Dutt, Advocates.
       CORAM:
       HON'BLE MR. JUSTICE A.K.CHAWLA

A.K. CHAWLA, J.

CRL.M.A. 9697/2019 in W.P.(CRL.) 1319/2019 CRL.M.A. 8514/2019 in W.P.(CRL.) 1164/2019

Exemptions allowed, subject to just exceptions.

CRL.M.A. 10070/2019 in W.P.(CRL) 1164/2019 By this application, amended Memo of Parties is sought to be placed on record.

Allowed. Amended Memo of Parties is taken on record. Application stands disposed off.

W.P.(CRL.) 1319/2019 and CRL.M.A. 9696/2019 (for stay) W.P.(CRL.) 1164/2019 and CRL.M.A. 8513/2019 (for stay)

By the instant writ petitions, the petitioners seek setting aside of the common order dated 30.03.2019 passed by the ld. Special Judge (PC Act), CBI-05, PHC, whereby, the respective applications filed by the petitioners seeking supply of deficient/illegible documents detailed there-under, came to be dismissed.

2. Concisely, the facts relevant to the subject matter are that on the registration of an FIR dated 05.07.2017 for the alleged contravention of Section 120-B r/w Section 420 IPC and Section 13(i)(d) of the Prevention of Corruption Act in short 'the PC Act' - charge-sheets in respect whereof have been filed - the respondent Directorate of Enforcement recorded an Enforcement Case Information Report i.e. ECIR on 26.07.2017, and, thereby, initiated investigations under Section 5 of the Prevention of Money Laundering Act, 2002 in short 'PMLA' against Lara Projects LLP (erstwhile Delight Marketing Company Pvt. Ltd./DMCPL) and its Director(s)/ Shareholders; attachment proceedings under Section 5 of PMLA; and; also, filed a criminal complaint under Section 3 r/w Section 4 of PMLA inter alia against the petitioners. In the proceedings so initiated, the petitioners filed the subject applications, which came to be dismissed vide the impugned

order. Aggrieved thereof, the petitioners have preferred the instant writ petitions.

3. In W.P.(Crl.) 1319/2019 the impugned order is assailed on the plea that the proceedings before the ld. Special Judge in PMLA are governed by the provisions of Cr.P.C. and require strict compliance of Section 208 Cr.P.C. According to the said petitioners, the documents supplied by the respondent run into eight volumes with 3535 pages and on a preliminary scrutiny, it was revealed that there were deficiencies and certain documents had not come to be supplied. In continuation thereof, it is also urged that any further investigation and filing of supplementary complaint is not permissible in law. In W.P.(Crl.) 1164/2019, the petitioners plead that on the preliminary scrutiny of the documents relied upon and supplied by the respondent, the documents detailed in the application were found deficient besides few documents being not legible and therefore, the application made under Section 207 Cr.P.C. was required to be granted.

4. In the submissions of the ld. counsel for the petitioners, the deficient documents sought were the documents, which find mention in the documents furnished and thus, form integral part of the relied upon documents and in the absence thereof, the consideration on charge would be infracted and may not be fair. It is also the submission of the ld. counsel for the petitioners in W.P.(Crl.) 1319/2019 that the ld. Special Judge erred in drawing parity in Sections 207 and 208 Cr.P.C. In support of such submissions reliance is placed upon Manu Sharma vs. State (2010) 6 SCC 1 and V.K. Sasikala vs. State 2012 (9) SCC 771.

5. In the submissions on behalf of the respondent-Directorate of Enforcement, the ld. Special Judge has primarily rejected the prayer made on the ground that at the stage of framing of charges, while considering application under Section 207 Cr.P.C. only the documents relied upon by the prosecution and filed along with the complaint were to be supplied. In addition, according to the respondent, the right of the respondent to file supplementary complaint was well recognized in Yogesh Mittal vs. ED 2018 SCC OnLine Del 6565. In the submissions of the ld. counsel for the respondent, the scope and ambit of application under Section 207 Cr.P.C. was very limited, and, in the present case, when the charges were yet to be framed, the petitioners were entitled to only the documents which form part of the charge-sheet/complaint and relied upon by the prosecution. It is thus contended that the documents asked for being not part of the relied upon documents, the petitioners were not entitled to such documents under Section 207 Cr.P.C. In support of such submissions, the reliance is placed upon Dharambir vs. CBI ILR (2008) II Delhi 842 and Dinesh Puri vs. State (Govt. of Delhi) 2016 SCC OnLine Delhi 5551.

6. The impugned order has come to be passed by the ld. Special Judge (PC Act) in the proceedings initiated under a special Act i.e. PMLA. The complaint made by the Directorate of Enforcement under Section 3/4 of the PMLA Act is the foundation thereof. On the complaint so made, the offence(s) are to be tried by the Special Court as provided for under sub- clause (d) of sub-Section (1) of Section 44 PMLA. Provision so made under the PMLA-a special enactment, is an exception created to the procedure to be followed for trial of the offences as provided for under the Code of

Criminal Procedure. In that view of the matter neither Section 207 nor Section 208 Cr.P.C. can be applied mutatis mutandis to the proceedings under PMLA. Then, the matter is at the stage of pre-charge consideration and this stage, cannot be construed to be a stage of trial. Trial begins with the framing of charge. In the given factual conspectus, the observations and the conclusions drawn by the Co-ordinate Bench of this Court in Dharambir's case (supra) and relied upon by the Trial Court have a direct bearing. Relevant to the subject, the ld. Special Judge has aptly culled out the observations and the conclusions drawn in Dharambir's case (supra), as under:

"(v) In terms of Sections 207(v) read with Section 173(5)(a) CrPC, the prosecution is obliged to furnish to the accused copies of only such documents that it proposes to rely upon as indicated in the charge sheet or of those already sent to the court during investigation.

(vi) The trial court or this Court cannot, at the pre-charge stage, direct the prosecution to furnish copies of documents other than that which it proposes to rely upon or which have already been sent to the court during investigation.

(vii) At the pre-charge stage the trial court cannot direct that a copy of each and every document gathered by the prosecution must be furnished to the accused irrespective of what the prosecution proposes to rely upon.

(viii) The prosecution is bound to indicate in the charge sheet submitted to the Court the documents it is proposing to rely upon for persuading the court to frame a charge against the accused. If it fails to do so, the court will proceed on the basis that whatever document is forwarded with the charge sheet is in fact proposed to be relied upon by the prosecution.

(ix) Where the accused insists that some other document apart from what is stated in the list of documents attached to a charge sheet should be taken as being proposed to be relied upon by the prosecution, and submits that this is evident from a

reading of the charge sheet, the trial court will examine such submission and if it is satisfied that the charge sheet does in fact indicate that some other document is also proposed to be relied upon by the prosecution, then it can require the prosecution to furnish the accused a copy of such document as well.

(x) ...

(xi) ...

(xii) ...

(xiii) ...

(xiv) ...

(xv) As long as the statutory requirements of Sections 207(v) read with 173(5)(a) CrPC are strictly complied with, and in the absence of any challenge to their constitutional validity, the failure to furnish to the accused by the prosecution at the pre- charge stage all documents gathered during investigation will not be a violation of the right to a fair trial under Article 21 of the Constitution."

7. In Sasikala's case (supra) relied upon by the ld. counsel for the petitioners in W.P.(Crl) 1164/2019, which took note of the ratio of the judgment in Manu Sharma's case (supra), the Supreme Court had taken note of the perceived difficulties in answering or explaining some part of evidence brought by the prosecution on the basis of specific documents and it was sought to be ascertained if the alleged incriminating documents could be better explained by reference to some other documents which were in the court's custody and therefore, an opportunity must be given to the accused to satisfy itself in that regard. There cannot be any dispute with regard to the ratio of the judgment in Sasikala's case (supra). The fact however remains that the principles enunciated in Sasikala's case (supra) would be attracted only during the course of trial, which is not the case in hand.

8. For the foregoing reasons, the writ petitions are unmerited and are dismissed along with pending applications.

A.K. CHAWLA, J.

JULY 22, 2019 nn