Key point in Sisodia bail order may be fillip for AAP in its defence

Documents that the investigative agency relies upon are often annexed in the chargesheets or remand applications but defence lawyers have claimed that the prosecution has been “putting documents exculpating the accused persons in the category of “unrelied upon documents”.

The accused and several witnesses have sought “unrelied upon documents” in the excise policy ‘scam’ in a digitised form. These could include statements recorded by the Enforcement Directorate (ED), complete WhatsApp chats, and documents that could have been seized during raids. The case has 31 accused and hundreds of witnesses.

The accused would examine ‘unrelied’ documents for details that could poke holes in the prosecution theory. Given that even bail proceedings under the stringent Prevention of Money Laundering Act (PMLA) are akin to a mini-trial, these documents are a game changer in bringing to light the “lack of a prima facie case”. Establishing that there is no case is key to seeking bail in money laundering offences under Section 45 of the PMLA.

The issue came up since Additional Solicitor General S V Raju had argued that the delay in trial, which is Sisodia’s key ground for seeking bail, was due to the accused filing “hundreds of applications” seeking “unrelied upon documents”.

While the ED initially agreed to consider the plea, it later refused to share the set of documents citing technical difficulties.

The lawyers for the accused have clocked several hours in ED offices inspecting the “unrelied upon documents”. These cannot be photographed or photocopied; lawyers are only allowed to make notes from the voluminous record. After the inspection, the accused can move an application under Section 91 of the Code of Criminal Procedure to obtain a copy of such a document.

However, in some cases where trial courts agreed to allow sharing of such documents, the Delhi High Court has stayed orders.

Sisodia’s lawyer senior advocate Abhishek Manu Singhvi had told the SC that in the ED case, the agency has listed 224 witnesses and produced 32,000 pages of documents and, in the CBI case, there are 269 witnesses and around 37,000 pages of documents produced.