The Hon’ble High Court of Madras vide order dated 25th January 2021 raised its concern over the “blind leading the blind” in criminal cases after finding that that a CBI court had erroneously rejected a plea to mark a copy of an ED case information report and given that the ED relied on a non-existent provision to challenge the CBI court’s finding in the High Court.

The said order was passed while hearing a criminal revision plea filed by the Enforcement Directorate.

The Enforcement Directorate (ED) had requested the CBI Court to allow them to produce a copy of the Enforcement Case Information Report (ECIR) as the original lay with the Adjudicating Authority in Delhi.

The CBI Court rejected the request, prompting the Enforcement Directorate (ED) to move the High Court in a criminal revision plea.

Finding that both the CBI Court and the ED’s counsel had erred in carrying out their respective roles, the Bench remarked:

“The melancholic part in our criminal justice system is that we often find one blind leading another and the two finally ending up in a cul-de-sac. We desist from saying anything more.”

Noting that the CBI Court’s decision to disallow the request to mark an ECIR copy had brought the trial to a grinding halt, the Court added, “Such indiscretions by trial Judges, notwithstanding the training given to them in the Tamil Nadu State Judicial Academy, contributes to the delay in the disposal of cases.”

The conduct of the ED’s counsel in this case did not find favor with the High Court either, which found that a provision cited by them i.e. “Section 300 of the CRP“, did not exist.

“When this Court asked the Special Public Prosecutor as to what he means by referring to ‘C.R.P.’, he stated that ‘C.R.P.’ refers to Civil Rules of Practice. On a perusal of the Civil Rules of Practice, we did not find any rule beyond Rule 213. If C.R.P. is construed as CrPC., then, Section 300 which deals with ‘Persons once convicted or acquitted not to be tried of same offence’, has no relevance at all”, the Court recounted.

The High Court pointed out reliance could have been placed on the Supreme Court’s ruling in Bipin Shantilal Panchal vs. State of Gujarat (1(2001) 3 SCC 1 ) to allow the ED to mark a copy of the ECIR, “subject, of course, to recording the objections raised by the defense.”

The Bench expressed that it was “indeed bemused to note the undue importance that has been given to the ECIR document of the Enforcement Directorate“, given that it is only an administrative form that is used by the ED for commencing the investigation of a case.

While an FIR in criminal cases involving physical violence may assume great significance since it throws light on aspects such as time and date of events, that is not the case with ECIRs, the Court explained. ECIRs arise only after the police have first registered a case involving a “scheduled offence” under the Prevention of Money Laundering Act (PMLA)

A person cannot be convicted or acquitted based on the entries in the ECIR form, because, an offence under the PML Act has to be proved by examining witnesses and proving documents in order to establish that the accused had involved himself in a criminal activity, acquired assets and had projected the proceeds of the crime as untainted property. In this scheme of things, the ECIR document really has no significance”, the Court said.

The Bench further noted that the Special Public Prosecutor, in this case, could have obtained the original of the ECIR form from the Adjudicating Authority in New Delhi either by sending a letter to him or filing a petition under Section 91 of the CrPC.

Instead of guiding the Court properly, he has relied upon “a non-existent provision’, viz. Section 300 C.R.P,” the Bench observed.

The Court ultimately allowed the revision petition moved by the ED in the matter, but not before observing:

“… the following passage from the book ‘Judges’ by David Pannick with reference to the American justice system is worth quoting:

‘Inarticulate advocates, bigoted jurymen, careerist prosecutors and incompetent judges have been seen to inhabit a legal system that leaves much to be desired by way of efficiency and fairness.’

We fervently hope and trust that our criminal justice system is saved from the aforesaid perils that are said to plague the American system.

Order: The_Assistant_Director__Directorate_of_Enforcement_v__Justin_Devadoss___David_and_ors