NEW DELHI: A Delhi court issued a notice on Friday to Congress functionaries Sonia Gandhi and Rahul Gandhi, and others in a money-laundering case related to the National Herald newspaper. The court observed that the right to be heard at any stage of proceedings breathes life into the right to a fair trial.
The court of special judge Vishal Gogne was hearing arguments on whether a notice is required to be issued to the accused in view of the proviso to BNSS Section 223. "The right of the accused to be heard at the cognisance stage must be liberally applied to proceedings under PMLA before the special court as a continuation of the recent jurisprudence on PMLA, which has read the constitutional mandate and rights into PMLA," the judge said.
The case is at the stage of consideration regarding notice. On April 25, additional solicitor general SV Raju, appearing for ED, submitted that under the new legal provisions cognisance of the chargesheet cannot be taken without first hearing the accused. On April 9, ED filed a chargesheet before the court that mentions Sonia Gandhi and Rahul Gandhi as accused numbers 1 and 2 under Secs 3 and 4 (which deal with money-laundering and its punishment) and Sec 70 (offences by companies) of the Prevention of Money Laundering Act . The charges, if proved, attract a maximum imprisonment of seven years.
The chargesheet names seven accused - five individuals and two private companies - Sonia Gandhi, Rahul Gandhi, Suman Dubey, Sam Pitroda, Sunil Bhandari, Young Indian, and Dotex Merchandise Pvt Ltd. On Friday, during the hearing, the ASG submitted before the court that in an ED case where notice was not issued, it was taken to the Supreme Court and SC had stayed the proceedings.
The judge, taking note that the proviso to BNSS Sec 223 is a salutary provision in furtherance of the right to be heard as part of a fair trial, said, "It is designed to protect accused persons against improper implication by permitting them to make submissions prior to the court taking cognisance of the offences in question. The BNSS is therefore a progressive legislation in this regard and records among its objectives and reasons a 'citizens-centric criminal procedure' as the 'need of the hour'."
This benevolent intent of BNSS should be read in favour of the accused rather than the investigation agencies when a right to be heard is to be accorded at any stage of the proceedings, the judge said. The court said it does not come to any "detriment" if the accused is permitted to make submissions on the question of cognisance. "In this adherence to the principles of fair hearing, the right to be heard is not inconsistent with any of the powers vested in the ED for investigation or the presumptions as well as the burden of proof stipulated under the PMLA," said the court.
The court also noted the submissions of the ASG that ED is not opposing such a notice precisely because it is a votary of a fair trial. The court listed various reasons for issuing notice, including that the proviso to BNSS Sec 223 creates a sui generis right of the accused to be heard at the cognisance stage and is not inconsistent with the complaint procedure or other provisions under PMLA.
"Such a right does not defeat or diminish the operation of any provision of PMLA. The proviso to BNSS Sec 223... is required to be read in favour of the proposed accused persons," the court said.
The court of special judge Vishal Gogne was hearing arguments on whether a notice is required to be issued to the accused in view of the proviso to BNSS Section 223. "The right of the accused to be heard at the cognisance stage must be liberally applied to proceedings under PMLA before the special court as a continuation of the recent jurisprudence on PMLA, which has read the constitutional mandate and rights into PMLA," the judge said.
The case is at the stage of consideration regarding notice. On April 25, additional solicitor general SV Raju, appearing for ED, submitted that under the new legal provisions cognisance of the chargesheet cannot be taken without first hearing the accused. On April 9, ED filed a chargesheet before the court that mentions Sonia Gandhi and Rahul Gandhi as accused numbers 1 and 2 under Secs 3 and 4 (which deal with money-laundering and its punishment) and Sec 70 (offences by companies) of the Prevention of Money Laundering Act . The charges, if proved, attract a maximum imprisonment of seven years.
The chargesheet names seven accused - five individuals and two private companies - Sonia Gandhi, Rahul Gandhi, Suman Dubey, Sam Pitroda, Sunil Bhandari, Young Indian, and Dotex Merchandise Pvt Ltd. On Friday, during the hearing, the ASG submitted before the court that in an ED case where notice was not issued, it was taken to the Supreme Court and SC had stayed the proceedings.
The judge, taking note that the proviso to BNSS Sec 223 is a salutary provision in furtherance of the right to be heard as part of a fair trial, said, "It is designed to protect accused persons against improper implication by permitting them to make submissions prior to the court taking cognisance of the offences in question. The BNSS is therefore a progressive legislation in this regard and records among its objectives and reasons a 'citizens-centric criminal procedure' as the 'need of the hour'."
This benevolent intent of BNSS should be read in favour of the accused rather than the investigation agencies when a right to be heard is to be accorded at any stage of the proceedings, the judge said. The court said it does not come to any "detriment" if the accused is permitted to make submissions on the question of cognisance. "In this adherence to the principles of fair hearing, the right to be heard is not inconsistent with any of the powers vested in the ED for investigation or the presumptions as well as the burden of proof stipulated under the PMLA," said the court.
The court also noted the submissions of the ASG that ED is not opposing such a notice precisely because it is a votary of a fair trial. The court listed various reasons for issuing notice, including that the proviso to BNSS Sec 223 creates a sui generis right of the accused to be heard at the cognisance stage and is not inconsistent with the complaint procedure or other provisions under PMLA.
"Such a right does not defeat or diminish the operation of any provision of PMLA. The proviso to BNSS Sec 223... is required to be read in favour of the proposed accused persons," the court said.
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