Court Can Peruse Case Diary And Materials Collected During Investigation While Considering Bail Applications : SC [Read Judgment]

In its judgment dismissing the plea of pre-arrest bail sought by former Finance Minister P. Chidambaram, the Supreme Court has made some important observations vis-a-vis application of Prevention of Money-Laundering Act and the scope of power under Section 438 CrPC to grant anticipatory bail.Importantly, the bench held that the court can receive the materials/documents collected during the investigation and peruse the same to satisfy its conscience that the investigation is proceeding in the right lines and for the purpose of consideration of grant of bail/anticipatory bail etc. The bench comprising of Justice R. Banumathi and AS Bopanna though disapproved the approach of the High Court Judge in extracting the note produced by the Enforcement Directorate, agreed with his conclusion that it is not a case fit to grant anticipatory bail. Single Judge Approach Of Extracting ED Note IncorrectThe court said that, in the initial stages of investigation, the Court may not extract or verbatim refer to the materials which the Court has perused (as has been done in this case by the learned Single Judge) and make observations which might cause serious prejudice to the accused in trial and other proceedings resulting in miscarriage of justice. The bench observed: The learned Single Judge, was not right in extracting the note produced by the Enforcement Directorate/CBI which in our view, is not a correct approach for consideration of grant/refusal of anticipatory bail. But such incorrect approach of the learned Single Judge, in our view, does not affect the correctness of the conclusion in refusing to grant of anticipatory bail to the appellant in view of all other aspects considered herein. Registration Of FIR Against Chidambaram Under PMLA MaintainableThe main contention urged in this case was that the very registration of the FIR against Chidambaram under PMLA is not maintainable. It was contended that the minimum threshold for the Enforcement Directorate to acquire jurisdiction at the relevant time was Rs.30 lakhs whereas, in the present case, there is no material to show any payment apart from the sum of Rs.10 lakhs (approximately) allegedly paid by INX Media to ASCPL with which the accused is said to be having no connection whatsoever. Rejecting the said contention, the bench said: In terms of Section 4 of the PMLA, the offence of money-laundering is punishable with rigorous imprisonment for a term not less than three years extending to seven years and with fine. The Second Schedule to the Criminal Procedure Code relates to classification of offences against other laws and in terms of the Second Schedule of the Code, an offence which is punishable with imprisonment for three years and upward but not more than seven years is a cognizable and non-bailable offence. Thus, Section 4 of the Act read with the Second Schedule of the Code makes it clear that the offences under the PMLA are cognizable offences. As pointed out earlier, Section 8 of the Prevention of Corruption Act was then found a mention in Part 'A' of the Schedule (Paragraph 8). Section 8 of the Prevention of Corruption Act is punishable for a term extending to seven years. Thus, the essential requirement of Section 45 of PMLA "accused of an offence punishable for a term of imprisonment of more than three years under Part 'A' of the Schedule" is satisfied making the offence under PMLA. Court has the powers, to receive the case diary/materials collected during the investigationThe issues considered by the Court was (i) whether the court can/cannot look into the documents/materials produced before the court unless the accused was earlier confronted with those documents/materials?; and (ii) whether the court is called upon to hold a mini inquiry during the intermediary stages of investigation by examining whether the questions put to the accused are 'satisfactory' or 'evasive', etc.? In this regard, the bench, referring to earlier judgments on the subject, observed that the court can peruse the case diary/materials collected during investigation by the prosecution even before the commencement of the trial inter-alia in circumstances like:- (i) to satisfy its conscience as to whether the investigation is proceeding in the right direction; (ii) to satisfy itself that the investigation has been conducted in the right lines and that there is no misuse or abuse of process in the investigation; (iii) whether regular or anticipatory bail is to be granted to the accused or not; (iv) whether any further custody of the accused is required for the prosecution; (v) to satisfy itself as to the correctness of the decision of the High Court/trial court which is under challenge. It further added:The above instances are only illustrative and not exhaustive. Where the interest of justice requires, the court has the powers, to receive the case diary/materials collected during the investigation. As held in Mukund Lal, ultimately there can be no better custodian or guardian...

Court Can Peruse Case Diary And Materials Collected During Investigation While Considering Bail Applications : SC [Read Judgment]

Ashok Kini

"It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India."

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