Accused person cannot be compelled to produce or submit incriminating material to the investigating agency | J&K High Court

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  • Post published:March 10, 2021
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The Hon’ble Court on Wednesday granted anticipatory bail to the petitioners, who had been booked by the Anti-Corruption Bureau for offences under Section 3 read with Section 4 of the Prevention of Money-Laundering Act, 2002.

The Court observed that it needs to be borne in mind that a person accused of an offence cannot be compelled to produce or submit to the investigating agency, the incriminating material for a right against self-incrimination is a fundamental right guaranteed by Article 20 of the constitution of India. .

The Judgment was passed by a Single Bench on 10th of March in a petition filed by an Advocate, Mr. Ayushman Kotwal in which the Hon’ble Court reiterated that the accused person cannot be compelled to submit or produce to the investigating agency the incriminating material because a right against self-incrimination is a fundamental right guaranteed by Article 20 of the Constitution of India.

Brief facts:

The Anti-Corruption Bureau registered a case against petitioner no. 1 on the allegations of being involved in corrupt practices and had accumulated huge wealth disproportionate to his known sources of income. Upon completion of the investigation, the ACB filed a charge-sheet/final report before the Court of learned Special Judge, Anti-Corruption, Jammu. The ACB, in its charge sheet, found the petitioners in possession of disproportionate assets to the tune of Rs.3,82,74,730/-.

Agruments on behalf of petitioners:

The petitioners claimed that they have been cooperating with respondent no. 2 (Investigating Agency) and, therefore, they have not been subjected to custodial interrogation. Petitioners further claimed that despite they extended all the cooperation, respondent No.2 is hell bent upon to take the petitioners in custody and, therefore, apprehending their arrest by respondent No.2, they have filed the instant petition for grant of pre-arrest bail.

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Objections on behalf of respondents:

It is claimed that petitioner No.1 has misused his position and amassed huge wealth by indulging in corrupt practices. The ACB has, in its thorough investigation, found petitioner No.1 and his wife possessing assets disproportionate to their known sources of income. It is also claimed that though, the petitioners are attending the investigation as and when called, yet they are not cooperating and producing the documents as are requisitioned from them. It is also pleaded that the conduct of the petitioners post registration of the aforesaid FIR by the ACB and presentation of chargesheet before the Court of Special Judge has been totally unbecoming of a public servant, in that, they have disposed of two assets which were part of the investigation and had been, prima facie, found by the ACB the assets disproportionate to their known sources of income. It is urged that the petitioners are not entitled to pre-arrest bail in the offences under Section 3 r/w Section 4 of PMLA.

They further argued that cases of economic offences have serious ramifications on the economy of the nation, the Court should be very strict in granting bail, more particularly, the pre-arrest bail. They further submitted that the investigation in economic offences is a complicated process and various transactions entered into by the accused to cover up the proceeds of crime are required to be traced out and enquired into and, therefore, the custodial interrogation of the accused becomes all the more necessary.

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Judgments relied upon by the respondents:

P. Chidambaram vs. Directorate of Enforcement, (2019) 9 SCC 24 and Y.S.Jagan Mohan Reddy vs. Central Bureau of Investigation, (2013) 7 SCC 439.

Oberservations of the Court:

The Bench comprises of Justice Sanjeev Kumar Shukla, observed that more than one year has passed and the investigation in the offences under PMLA is going on. During this one year, respondent No.2 did not feel the necessity of subjecting the petitioners to custodial interrogation and now when the investigation has considerably proceeded and is nearing completion, it would be a travesty of justice, if the petitioners are handed over to respondent No. 2 for custodial interrogation.

The Court importantly said that, it needs to be borne in mind that a person accused of an offence cannot be compelled to produce or submit to the investigating agency, the incriminating material for a right against self-incrimination is a fundamental right guaranteed by Article 20 of the constitution of India.

The Court while allowing the petition observed that arrest of accused may be required for effective investigation of crime, but the same cannot be a substitute for post-trial punishment. After all, an accused is presumed to be innocent until proven guilty. Even on merits, what is found by the respondents is possession of disproportionate assets without there being, prima facie, mens rea to pass it off as untainted property.

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