“I repeat . . . that all power is a trust —that we are accountable for its exercise — that, from the people, and for the people, all springs, and all must exist.”
Benjamin Disraeli
Introduction: Enhancing Transparency in ECIR Disclosure
The aim of the Prevention of Money Laundering Act, 2002 (“PMLA”) as reflected in its Statement of Objects and Reasons is to curb the economic offences of money laundering and connected activities in our country and it is intended to be a comprehensive legislation for the said purpose. To effectuate such an aim, the Enforcement Directorate (“ED”) has been mantled with sweeping powers of investigation and arrest under the act. As per the case of Pankaj Bansal v. Union of India, to ensure the procedure established by law, the ED is ‘expected to be transparent, above board and conforming to pristine standards of fair play in action’. Lately, as exemplified by the furore over the arrest of Arvind Kejriwal in the Delhi excise scam case, the PMLA has come under scanner for acting as a tool for political weaponization. To allay these concerns, it is imperative for the ED to act with utmost dispassion and fairness so as to ensure the highest degree of probity in exercising its powers under the act.
While investigating offences, the procedure followed by the ED is to register an Enforcement Case Information Report (“ECIR”) , an internal document, the contents of which are not informed to the accused. After recording the ECIR, the ED summons the accused person and a statement under Section 50 of PMLA is sought regarding the details of all their financial transactions. Under Section 19 of PMLA, when the accused is arrested, apart from the grounds of arrest, he/she is not provided with any other documents based on which the arrest is being effectuated as the accused persons have no access to the ECIR registered by the ED. Consequently, their effective right to a fair trial is curtailed as they are unable to contend and dispute the veracity of the material in the form of statement of witnesses recorded under Section 50 of PMLA, which is only possible through cross-examination. Furthermore, since there are no guiding principles for the registration of the ECIR, absolute discretion is exercised by the ED contravening Article 14 of the constitution.
The judgement in the case of Pankaj Bansal v Union of India reiterated that in consonance with Article 22(1) of the Constitution of India, the accused must be informed of the grounds of his/her arrest and the mode of conveying information of the grounds of such arrest must necessarily be in written so as meaningfully serve the intended purpose. While the said case is a step in the right direction, it falls short as it does not touch upon the nuances of the disclosure of the ECIR which is imperative for the protection of the fair trial rights of the accused. In the case of Court on its own motion v State, it was held that that “an accused is entitled to get a copy of the FIR at an earlier stage than the stage prescribed under Section 207 of Cr.P.C(‘Section 230 of BNSS’) ” Pursuant to Article 21 of the Constitution of India, and in line with principles of fairness and transparency, it was further held in the same case that the investigating agencies are to furnish to the accused a list of all documents and material relating to arrest. However, the non-disclosure of the contents of the ECIR to the accused is in complete contrast to this transparent procedure laid down by the court in the case of Court on its own motion v State with regard to supply of FIRs to an accused.
In the next sections, the aim is to highlight the multifarious problems of the existing mechanism and to provide the way forward with respect to the disclosure of the ECIR so as to thread an intricate balance between the rights of the accused and the concern regarding disclosure of ECIR raised in the case of Vijay Madanlal Chowdhary v Union of India.
Constitutional Imperatives and Procedural Challenges: Ensuring Fair Trial Rights in PMLA Cases
In the case of Vijay Madanalal Chowdhary v Union of India, the Hon’ble Supreme Court, considering the deleterious impact that the disclosure of ECIR which contains the details of the materials in the possession of ED may have on the final outcome of the investigation or enquiry, affirmed that the non-disclosure and supply of the ECIR to the accused cannot be found fault with. Per the dicta laid down in the case, it was mandated to merely inform the accused the grounds of his arrest which was considered to be sufficient compliance with the mandate of Article 21 of the Constitution.
However, Article 21 of the constitution of India solidified with the jurisprudence of fair trial rights enshrined under Article 14 ICCPR should not be narrowly construed so as to limit the right to equality of arms provided to the accused. The right to equality before courts and tribunals, which is a facet of Article 21, guarantees equal access and equality of arms, and ensures that the parties to the proceedings in question are treated without any discrimination. Furthermore, Article 14(3)(b) ICCPR provides that accused persons must have adequate time and facilities for the preparation of their defence and to communicate with their defence counsel. This provision is an important element of the guarantee of a fair trial and an application of the principle of equality of arms. To avoid miscarriage of justice that could result from holding trial hearings where the accused is unable to meaningfully participate in such hearings. issues concerning the effective participation of the defendant in the trial proceedings should be resolved immediately. The accused persons having no access to the ECIR or any other documents within the custody of the ED at the time of their arrest under Section 19 of PMLA, deters their meaningful participation as their access to adequate facilities is impeded.
It cannot be contended that under Section 19 of PMLA, the safety valve regarding its misuse has been provided and power would only be exercised when there are reasonable grounds to believe that a person is guilty of an offence as this mechanism is not objective. The provision while setting the standard for arrest as ‘reasonable grounds’ only provides for the subjective satisfaction of the officer and as such cannot be challenged by the accused due to the remand usually being given within 24 hours of the arrest.
Per Lalita Kumari v Government of Uttar Pradesh and Ors (“Lalita Kumari”), in the case of offences under the IPC is governed by the provisions of Cr.P.C., “the receipt of information of a cognizable offence inescapably must lead to the registration of an FIR, which is then made available to the accused and also filed with the jurisdictional magistrate under Section 157 of Cr.P.C (‘Section 176 of BNSS’) The FIR is also made available in the public domain and a certified copy of the same can be obtained by applying to the jurisdictional magistrate to whom it has been submitted under Section 157 of Cr.P.C.” However, judicial oversight over the ED is given a blanket go-by in PMLA as the ED is not obliged to follow the mandate laid down in the case of Lalita Kumari which ensures that power is not exercised unbridled and there are some checks and balances on the discretion exercised. As a result, due to non-compliance of the provisions of Section 157 of Cr.P.C by the ED, there is no recourse available to the accused to access the contents of the ECIR as a copy of the same cannot be provided even by applying to the concerned jurisdictional Magistrate.
Way Forward: Ensuring Equitable Access
The reason for not providing access to the ECIR per Vijay Madanlal was the impact that the supply of ECIR, containing details of the materials in possession with the ED has on the outcome of the investigation as it may lead to the disclosure in the public domain of all confidential documents with the custody of ED relating to the investigation. This concern with respect to the sanctity of the investigation can be remedied by following the approach laid down in the case of Youth Bar Association v Union of IndiaI. This would ensure that the delicate balance with respect to the fair trial rights of the accused and the concerns regarding sanctity of the investigation by ED is maintained. In this case, the general rule regarding the supply of the copy of the FIR at an earlier stage than as prescribed under Section 207 CrPC (‘Section 230 BNSS’)was laid down. Apart from the general principle, the judgement categorically laid the remedy for exceptional circumstances when owing to the sensitive nature of the case, ”like that of sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under the POCSO Act and such other offences”, such general principles could not be adhered to.
Firstly, per the case, the accused is entitled to get a copy of the FIR, consistent with Article 22 of the Constitution. Secondly, an accused under the apprehension of being roped in has the right to submit an application through his agent for grant of a certified copy before the police officer concerned which is to be supplied within a span of 24 hours. Thirdly, unless the case involves a sensitive matter, the copy of the FIR, is required to be uploaded within 24 hours on the police website, and in the alternative, on the official website of the State Government, to enable the accused to download the FIR and file appropriate application before the court. The judgement further charted a recourse for the accused in case, owing to the sensitive nature of the case, it is decided not to supply the copy of the FIR. It was laid down that after disclosure of their identity, an accused person if dissatisfied by the said action of the authorities, is entitled to submit a representation to the Superintendent of Police or to any person holding an equivalent post. To peruse such grievances, the Superintendent of Police is required to mandatorily constitute a committee of three officers which shall be responsible to deal with the concerns raised. A timeline of 3 days from the date of receipt of the representation is provided for the committee to redress such a grievance and to communicate it to the concerned accused persons. Furthermore, it was provided that in case the committee does not find any reason for the accused to be supplied the copy of the FIR , ”regard being had to the sensitive nature of the case, it will be open to the accused/his authorised representative to file an application for grant of certified copy before the Court to which the FIR has been sent and the same shall be provided in quite promptitude by the court concerned not beyond three days of the submission of the application.”
Conclusion
In the light of these directions issued in the case of Youth Bar Association v. Union of India, which are to be mandatorily followed in the course of a routine criminal trial, the author recommends that the same directions with tailored modalities is the way forward in PMLA related offences to maintain the delicate balance between the rights of the accused arrested under the stringent PMLA provisions and the concerns regarding the sanctity of the investigation by the ED. Therefore, generally the accused should be entitled to the copy of the ECIR and should possess the right to submit an application for grant of a certified copy before the police officer concerned which is to be supplied within a span of 24 hours and the same should also be uploaded on the police website for the accused to download and access it. In cases where the copy of the ECIR cannot be supplied to the accused due to the concerns relating to the sanctity of the investigation process, recourse should be provided to the accused, mutatis mutandis when in routine cases, owing to the sensitive nature of the case, copy of the FIR is not provided. Accordingly, there should not be any blanket denial of the right of the accused to obtain copies of the ECIR, and to scrutinise the grievance relating to non-supply of copy of the ECIR to the accused, the ED should be required to mandatorily constitute a committee of three officers and a time span of 3 days should be provided for the committee to peruse such concerns and to communicate it to the concerns accused persons. Furthermore, doors of judicial oversight of ECIR under Section 157 of CrPC(‘Section 176 of BNSS’) should be open to PMLA related cases, as this would ensure that in scenarios when the committee does not find any reason for the accused to be supplied the copy of the ECIR, it will be upon the accused to file an application for grant of certified copy before the Court to which the ECIR has been sent which has to be supplied to the accused, within 3 days of such application. This mechanism would safeguard the rights of the accused against absolute discretion exercised by the ED and allay the concerns regarding the investigation by ED as raised in the Vijay Madanlal judgement with the committee would being empowered to decide regarding the supply of the copy of the ECIR to the accused in cases where the concern regarding the subversion of the investigation process is raised.
The post is written by Shreya Jain, a student from RGNUL.