Aravind Sundar
The Delhi Excise Policy case has captured a lot of attention from the legal world and the general public, due to the uniqueness of the legal proceedings and the orders/judgements that have been passed. From the first-time-ever arrest of a sitting Chief Minister less than a month before the general elections, to his release on the peculiar grounds of his right to political campaigning, the case has been academically discussed at length with a variety of opinions across the spectrum (here, here and here)
This blog seeks to address a key issue in this case – the eight supplementary chargesheets that the Enforcement Directorate (“ED”) has filed. As will be explained, these supplementary chargesheets completely ignore and violate various facets of criminal procedural law that delineate the investigating agency’s (“IA”) powers of initial investigation, further investigation and filing initial or supplementary chargesheets. The eight supplementary chargesheets are proof of an investigation that had not attained finality. This means that the ED did not have the power to file an initial chargesheet to begin with, let alone the eight supplementary chargesheets that succeeded it. This shows an abuse of investigative powers, done with the intention to prolong the trial and the pre-trial detention of the accused.
This blog piece begins by explaining the finality aspect of investigation and filing of chargesheet which the law prescribes. It then delves into the concepts of further investigation and supplementary chargesheets, and the limited circumstances in which the power to conduct further investigation arises. Finally, the piece discusses the investigative timeline of the Delhi Excise Policy case, and shows how the ED has repeatedly violated the procedural limitations prescribed .
The law on initial investigation and chargesheet
As per S. 65 of the Prevention of Money-Laundering Act (“PMLA”), the Code of Criminal Procedure (“CrPC”) is applied to proceedings under the PMLA, subject to any special provisions created for certain aspects of the trial. For the investigation stage, the PMLA’s special provisions are largely centred around widening the powers of seizure, survey and search of property and persons, and arrest [Ss. 16-19]. However, the aspects of investigation and filing chargesheets that this piece delves into remain the same in PMLA proceedings.
A chargesheet is a report filed by an IA under S. 173(2), CrPC. The wording of S. 173(2) is important – it describes the report as one that is filed “as soon as it is completed” (“it” referring to the initial investigation). A combined reading of S. 173(2) and the title of S. 173 (which reads “Report of police officer on completion of investigation”, emphasis mine) makes it clear that the chargesheet is to be filed only after the investigation has attained finality. Multiple judicial definitions of a chargesheet either define it in terms of its finality as a report [K Veeraswami v Union of India, (1991) 3 SCC 655, SCC para 76; Dinesh Dalmia v CBI (2007) 8 SCC 770, SCC para 19] or in terms of it succeeding a complete and full investigation [MC Abraham v State of Maharashtra (2003) 2 SCC 649, SCC para 17; Judgebir Singh v NIA 2023 SCC OnLine SC 543, SCC para 48]. Both the bare text of the CrPC and the Supreme Court’s interpretations are clear that the chargesheet is filed to report an investigation that is complete, full and has attained finality.
The law’s emphasis on the finality of the chargesheet is further solidified upon analysing the legislative history of S. 167(2), CrPC, which allows an accused, who has been arrested and remanded during the course of an investigation, to seek default bail if a chargesheet is not filed within 60 or 90 days (depending on the seriousness of the offence) of his remand. The idea behind setting a time limit for remanding the accused was to ensure that IAs would not endlessly delay the investigation with the purpose of keeping the accused behind bars. Instead, they would be given a deadline, failing which the accused would automatically be entitled to bail.
The 1898 version of the CrPC propounded a deadline of 15 days for the IA to complete their investigation and submit a chargesheet, failing which the remanded accused would be entitled to default bail, regardless of the alleged offence or the evidence against him. The 41st Law Commission Report [pp. 76-78] noted that the “unworkable” time limit of 15 days for investigation gave rise to a practice of “doubtful legal validity”, where IAs would regularly file preliminary or incomplete chargesheets before the Magistrate for the sole purpose of scuttling the accused person’s right to default bail. They sought to counter this practice by increasing the time limit of 15 days to 60 or 90 days, which was preferred over supporting “a practice which violates the spirit of the legal safeguard”. These changes were enacted into the present day CrPC, and the default bail provision has been carried over to the Nagarik Suraksha Sanhita, with changes that are not pertinent for this discussion.
It can be concluded that the scheme of the CrPC mandates the IA to submit final chargesheets based on a full and complete investigation. Protecting this mandate is paramount, as the chargesheet plays an essential role in the next stages of the criminal case, which is the taking of cognisance and trial [Suresh Kumar Bhikamchand Jain v. State of Maharashtra, (2013) 3 SCC 77, SCC para 18]. The stage of taking cognisance is extremely important – it is when the Magistrate takes judicial notice of an offence with a view to initiate criminal proceedings [Bhushan Kumar v State (2012) 5 SCC 424, SCC para 11], and is a sine qua non of holding a valid trial. It requires a judicial application of mind in a particular manner so as to issue process against the accused and begin the criminal trial [Jayant v State of MP (2021) 2 SCC 670, SCC para 11.3]. The chargesheet, being the only investigative document and evidence available to the Court at that stage, is an integral and key resource for the Magistrate to evaluate whether cognisance is to be taken or not [Sharif Ahmed v State of UP, para 20] and hence, it must reflect a thorough investigation [ibid, para 24].
The importance of an appropriate and independent application of mind for the purposes of taking cognisance is so significant, that Magisterial powers at this stage have been interpreted widely to ensure a proper investigation [Sakiri Vasu v State of UP (2008) 2 SCC 409]. Hence, these powers even include rejecting the final report and ordering further investigation, if the Magistrate is of the view that the chargesheet was based on an incomplete or unsatisfactory investigation [Abhinandan Jha v Dinesh Mishra (1967) 3 SCR 668].
Confoundingly, the ED’s investigative report is actually treated as a complaint under Ss. 200-204, CrPC [Yash Tuteja v Union of India, para 6]. However, this ED “complaint” is essentially of the same nature as a chargesheet under S. 173, CrPC – it is used for taking cognisance and issuing process [Tarsem Lal v ED, para 8]. It has also been recognised to be on par with a chargesheet in the context of default bail [Vijay Madanlal Choudhary v Union of India, para 145]. The investigative nature of an ED complaint, and its interplay with default bail and cognisance, warrants treating it akin to chargesheets under S. 173, and applying the requirement of finality.
The PMLA assigns an additional protective role to the chargesheet/complaint. S. 5, which prescribes procedure for attaching property involved in money laundering, can only be invoked after a chargesheet/complaint in relation to the scheduled offence has been filed [Vijay Madanlal Choudhary (supra), para 58]. Based on the above discussion, it becomes clear the chargesheet accords a degree of protection to the accused – their property can only be attached after a full and complete investigation deems it to be a proceed of crime. Questions arise on the sufficiency of this protection, especially keeping in mind the non-obstante second proviso to S. 5(1), which permits emergency attachment if the ED believes that non-attachment would likely frustrate proceedings. However, these questions are not relevant here.
Before moving on, it is important to discuss the judgement of Ritu Chhabaria v Union of India. The Supreme Court in this case had explicitly barred IAs from filing incomplete chargesheets in order to scuttle default bail. This safeguard was traced to the intent of S. 167, and its role was established in protecting the accused from arbitrary exercises of power by the disparately powerful State. However, the government had managed to secure an abeyance on the judgement in a procedurally irregular manner, as it sought to recall the judgement due to the supposed difficulties faced by IAs. This decision has been widely criticised for eroding an important aspect of the arrested person’s fundamental right of personal liberty (here, here and here).
The discussion above clearly establishes the importance of enforcing finality in chargesheets from a procedural perspective. The CrPC’s scheme in ensuring finality is connected to the role of the chargesheet in kickstarting a criminal trial by enabling a judicial application of mind for the purposes of taking cognisance. The implications of allowing IAs to file incomplete chargesheets are dangerous – allowing the State to unjustifiably defeat the accused person’s right to default bail and arbitrarily detain them for unlimited time not only contravenes the CrPC, but also completely violates their basic fundamental rights.
The next section shall delve into further investigations and supplementary chargesheets.
Supplementary Chargesheets – A Post-Investigative Tool
Indian criminal procedure propounds three types of investigation [Vinay Tyagi v Irshad Ali (“Vinay Tyagi”), (2013) 5 SCC 762, SCC paras. 20-23]:
- Initial investigation, which is conducted in furtherance of the registration of an FIR and leads to the filing of a final report/chargesheet under S. 173(2), CrPC;
- Further investigation, which is a continuation of the initial investigation and is restricted to the discovery of further oral and documentary evidence, and leads to the filing of a further report/supplementary chargesheet under S. 173(8), CrPC;
- Reinvestigation or fresh investigation, which is a fresh investigation conducted on the facts of the case after a definite order of a Court deems the previous investigation to be faulty/unfair/tainted and sets it aside.
The concept of further investigation was introduced in the 41st Law Commission Report [pp. 78-80]. The Report recognised instances wherein an IA came upon evidence after filing the chargesheet and yet was not able to present it to the Magistrate. It sought to correct this mischief by introducing the power of further investigation, which would allow the IA to re-open the investigation, collect the newly-arisen evidence and present it to the Magistrate through a supplementary chargesheet. This was included into the CrPC as the present-day S. 173(8).
The Report conceptualised the power of conducting further investigation as one that was to be invoked after the filing of the initial chargesheet, which it understood to signify the end of the investigation. In other words, further investigation takes place at a post-investigative stage for the sole purpose of submitting newly arisen evidence. This intention is reflected in the phrasing of S. 173(8) – it states that the filing of a chargesheet does not “preclude further investigation in respect of an offence after a report under subsection (2) has been forwarded to the Magistrate” (emphasis mine).
Judicial interpretations of S. 173(8) support such a contention. The Supreme Court has held that the scheme of the CrPC empowered police officers who came across fresh evidence after completing their initial investigation to conduct a further investigation and file a supplementary chargesheet under S. 173(8), as opposed to filing a second FIR. The Court envisioned further investigation as a tool to account for evidence that arose after a complete initial investigation, at a post-cognisance stage [TT Antony v State of Kerala (2001) 6 SCC 181, SCC para 19; State of WB v Salap Service Station 1994 Supp (3) SCC 318, SCC para 2]. The basis of a further investigation is “discovery of fresh evidence”, and the purpose of a supplementary chargesheet was to present evidence if “they are discovered at a subsequent stage to the primary investigation” [Vinay Tyagi (supra), SCC para 22]. Furthermore, the power of further investigation is subject to seeking the Court’s prior leave.
The Delhi High Court’s judgement in Surender v State (NCT of Delhi) [2022:DHC:2316] is instrumental in understanding the post-investigative nature of supplementary chargesheets. The Court held that “the provision for further investigation could not have been introduced solely to provide for reappreciation or reconsideration of the old or primary evidence and other material which was already on record before the Magistrate.” An extent of novelty was required to justify the filing of a supplementary chargesheet – “there has to be certain fresh material, or appreciation of old material from a different perspective, that brings on record facts and evidence which was not available to the prosecution or the Court earlier.” In this case, the Court quashed the supplementary chargesheet and the charges that were filed against the accused based on that supplementary chargesheet, on the ground that it did not unearth any new material or fresh evidence.
To summarise, further investigation is only permissible in special circumstances where new evidence arises after the completion of the initial investigation. A supplementary chargesheet cannot be used to present evidence that had already existed at the time of the initial investigation, as this evidence should have already been presented in the initial chargesheet filed under S. 173(2). If a further investigation is used to investigate evidence that already existed during the initial chargesheet, it implies that the initial investigation had not reached the necessary finality and completeness to file a chargesheet. This challenges the very validity of the chargesheet (which as explained in the previous section, must be preceded by a complete and full investigation), which means that the further investigation powers have not come into existence yet. This observation is important, as will be explored in the next section, which delves into the ED misusing these powers.
The ED’s misuse of Supplementary Chargesheets
Understanding the timeline of the Delhi Excise Policy case and its investigations will help us recognise the ED’s problematic usage of supplementary chargesheets. The Excise Policy was enacted in November 2021, and subsequently, scrapped in July 2022. This suggests that the alleged money laundering had taken place in the interval between November 2021 to July 2022. The ED then filed their case and started investigation on 22 August 2022. From that date till 28 June 2024, the ED had filed its initial chargesheet and an additional eight supplementary chargesheets, averaging a new chargesheet every 75 days.
If these supplementary chargesheets were legal, it would imply that for an offence which was allegedly committed from 2021 to 2022, new evidence emerged every 75 days between 2022 to 2024, which was of such a nature that it did not exist during the previous 75-day-period. This scenario is far-fetched and unrealistic. It is simply impossible that new and different pieces of evidence can arise on eight distinct occasions in a time period of less than two years, of a crime which allegedly took place over the span of nine months prior to the investigation.
We can only conclude that these supplementary chargesheets have been repeatedly filed by the ED without ensuring that their investigation had reached its required finality. When we take into context the virtually impossible and unconstitutional nature of the PMLA’s bail provision, which unduly burdens the accused with proving prima facie innocence to successfully receive bail, it becomes clear that the ED has been illegally abusing their further investigation powers with a view to delay trial and unlawfully prolong the custody of the accused persons.
The Supreme Court earlier in Hasanbhai Qureshi v State of Gujarat (2004) 5 SCC 347 held that “the mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice” [SCC para 13]. While this may be the case, the inverse also applies – further investigation powers should not be manipulated to cause endless delays and stand in the way of a speedy trial, so as to maximise pre-trial detention. It is highly concerning to note that such conduct by the ED is not a one-off incident. In this year alone, the ED has similarly engaged in such misuse of their further investigation powers in the Jharkhand Mining case, wherein they filed four supplementary chargesheets and claimed that their investigation was still pending.
Conclusion
The powers of further investigation and supplementary chargesheets were conceptualised with an important aim – to empower IAs to present pieces of evidence that had newly arisen after they had completed their investigation. The ED in the Delhi Excise Policy case has misused these powers by repeatedly filing chargesheets without ensuring that the investigation had met its fundamental requirement of finality. This misuse violates the accused person’s right to speedy trial and the procedural limitations that the CrPC prescribes against investigative powers.
Courts cannot ignore this misuse of further investigation, which is done with the sole view of prolonging trial and pre-trial detention. They must also refuse to grant permission to IAs for conducting further investigation, unless it can be proven that the aim of the further investigation is to investigate newly arisen evidence that was not in existence when the previous chargesheet was filed.
Aravind Sundar is a 3rd year undergraduate student at National Law University Delhi.
The opinions expressed in the Blog are personal to the authors. The University does not subscribe to the views expressed in the article/blog and does not take any responsibility for the same.
