INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Bhanu Jindal and Khushi Mittal, AZB & Partners
An ED investigation is initiated after registration of a scheduled offence under the PMLA. A complaint is then registered if the authority has reason to believe that “proceeds of crime” may have been generated through the commission of a scheduled offence. The CBI and SFIO cannot initiate investigations inde - pendently – they must be authorised by the central government or directed by a court. However, the SFIO can investigate the affairs of a company if required in the public interest, and subject to shareholder approval. IT authorities and the CVC can initiate investigations. However, there are certain internal safeguards pro - vided by the IT Act and the CVA Act, 2003, that allow authorities to determine probable cause or develop a prima facie view prior to initiating an investigation. 2.3 Powers of Investigation The police, EOW, and CBI have wide powers to sum - mon persons, conduct searches and seizures, compel production of documents, and arrest accused persons for interrogation during the investigation. They may compel any employee, officer, or director of a com - pany to join the investigation. Failure to join the investigation may be treated as non- cooperation and grounds for arrest in some cases. Section 94 of the BNSS has been expanded so that a person can be compelled to produce communication devices. This has raised issues regarding the seizure of confidential, personal, sensitive, and legally privi - leged information, the scope of exclusion for which is currently being tested by Indian courts. The BNSS mandates the recording of search proceed - ings through audiovisual electronic means, preferably through smartphones, until specialised devices are finalised. A crime scene must also be mandatorily videographed. The MHA SOP further instructs the first responder to submit the record of audiovisual documentation in a mirror copy, along with a chain of custody for the pri - mary evidence. Where a crime scene is videographed, the MHA SOP mandates that the recording must be processed in an e-Case Diary or through the Inter-
operable Criminal Justice System (ICJS)-enabled application, e-Sakshya. The CVC is empowered with all the powers of a civil court, including the power to summon and com - pel attendance, conduct examinations under oath, demand the production of documents, receive evi - dence through affidavits, and requisition public records. The SFIO has the same powers as that of an inspector under the Companies Act, which include the powers of a civil court as previously mentioned. The SFIO also has the power to compel disclosure from officers and employees of a company under investigation. Further, the SFIO has the power to arrest and is statutorily empowered to object to the granting of bail to the accused. IT authorities, similarly, possess civil court powers to compel disclosure of documents, and impose fines for non-compliance. Both IT authorities and the ED can conduct dawn raids via search and seizure, but only if they have reason to believe that the income is or may be concealed within their jurisdiction. The ED has powers similar to IT authorities under the IT Act, including enforcing exchange control rules, attaching proceeds of crime, summoning, searching and seizing, compelling document production, and making arrests for interrogation. ED statements must be signed by the accused and can be issued in a court of law, unlike police statements. There is no right to legal counsel during interroga - tion, although there is a limited right for a lawyer to accompany the accused and remain outside the room to observe, but not to hear, the questioning. The Supreme Court, however, is currently adjudicating a petition where detailed guidelines have been sought regarding the presence of a lawyer during interroga - tion to prevent incriminating answers. Law enforcement can trace, freeze, and seize virtual digital assets (VDAs) under the BNSS and the PMLA, owing to the expansive and wide definition of “prop - erty” under Section 111 (d) of the BNSS. Exercis -
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