Significant failure by ED to fulfill constitutional obligation of speedy trial: Mumbai Court

A Mumbai court recently passed strong strictures against the Enforcement Directorate (ED) on finding that the agency failed in its constitutional duty to ensure a speedy trial for the accused in a money laundering case [Naresh Jain, Anil Khandelwal v. Enforcement Directorate]..Special judge MG Deshpande emphasised that the ED is expected to not waste any time in carrying out necessary steps to ensure a timely trial, particularly if any such delay results in accused persons remaining in jail for an uncertain period of time. The judge made the observation while granting bail to two persons who had remained in jail for over three years since their 2020 arrest in a money laundering case connected to the Cox and Kings company. “It is the constitutional obligation of the ED to ensure expeditious trials for this case are concluded within a reasonable time. There has been a significant failure on the part of the ED to fulfil this constitutional obligation in respect of this case. Therefore, this significant failure of the ED itself qualifies the two applicants (for bail),” the court said..The Court added that it was a matter of serious concern that the ED had opposed the bail applications despite the long imprisonment of the two accused.“Both of them (accused) are deemed to have been convicted without framing charges and without a legitimate trial, thus frustrating their right to be tried as expeditiously as possible. Even after such circumstances, the ED wants to keep them behind bars for an uncertain period by putting a clog and creating hurdle by filing a draft charge. Such modus operandi of the ED and the way they opposed bail applications on its basis raise serious concerns,” the special court said..It went on to note that the criminal process would get delayed if the ED keeps on saying that "further investigation" is required, as such a move would stall the framing of charges and trial. Such actions would show utter disregard for the fundamental rights of the accused to a speedy trial, the Court underscored. Referring to certain delays by the ED in this case, the Court added,"Unfortunately, ED compelled me to note that rather than being fair with the true situation and facing their miserable failure, the ED is putting obstacles and creating hurdles in the way of exercising their fundamental rights by the applicants.".The case concerned loans given by Yes Bank to Cox and Kings, which were allegedly laundered by Chief Financial Officer (CFO) Anil Khandelwal, and internal auditor, Naresh Jain.The two accused sought bail on the ground that they had spent more than three years and six months in prison since their arrest in October 2020. They relied on Section 436A of the Criminal Procedure Code (CrPC) to seek bail. Under this Section, a person who spends more than half the term of the maximum punishment for an offence could be released on bail. The trial court found merit in these arguments and concluded that the accused have an absolute right to claim bail in view of their long incarceration in jail. “Both Jain and Khandelwal have been enduring undue incarceration for more than 3 years and 6 months, a period exceeding one half of the maximum sentence specified under Section 4 of PMLA. Despite this, both individuals are still undergoing trial at the behest of ED, which failed to take effective steps at the earliest opportunity. This failure on the part of the ED to uphold the constitutional rights of citizens is glaring," the Court observed while granting bail..Grass roots reality of PMLA courtsIn the course of the order, the Court also noted that the Supreme Court had earlier permitted the bail applicants to file a fresh bail plea if no substantial steps were taken by May 31, 2024 for trial. The said order was passed by the top court in January this year while declining a bail plea by Naresh Jain.The trial court noted that the case was still stuck in the pre-trial stage on account of the complex nature of the money laundering case. The Court observed that there were around 135 interconnected cases which were scattered across India, and that it has been struggling to collect details regarding the status of these cases through repeated directions to the ED. "This is the glaring reality at the grass-root level of the trial Court which is designated as Special Court under the PML Act (Prevention of Money Laundering Act). This complex and exceptional procedure provided for the trial of the PMLA case under the Prevention of Money Laundering Act, makes each and every trial of the PMLA case gigantic. Such complex procedure for trial is rarely found in any other Criminal Law and Statutes," the Court observed. .Advocates Satyavrath Joshi, Akansha Dagwar and Sayee Sawant briefed by Vidhii Partners appeared for Naresh Jain.Advocates Ankit Pandey and Dhruti P Chheda appeared for Anil Khandelwar.Special public prosecutor Sunil Gonsalves appeared for the ED..[Read order]