INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Bhanu Jindal and Jitesh Lakra, AZB & Partners
2.2 Preserving Evidence Criminal Proceedings
include movable or immovable property, corporeal or incorporeal property, and the instruments relating to such assets (and includes bank accounts). Further, the BNS criminalises secreting or destroying documents to prevent their production in legal pro - ceedings, punishable with imprisonment of up to three years or a fine of INR5,000, or both, thereby deterring destruction of evidence. Civil Proceedings Under the CPC, courts regulate and control the evi - dence placed before them. High Courts in India have their own specific rules in relation to maintenance of evidence. For example, the Delhi High Court Rules require old and delicate documents to be safeguard - ed, such as by using a protective covering or by using photocopies while sealing the original. The CPC also permits appointment of a receiver under Order XL to preserve property that is the subject matter of a suit for realisation, management or improvement of a property, or to collect rent and profits while the suit is pending. Additionally, under Order XXXIX Rule 7 of the CPC, a party may seek court orders for inspec - tion, detention or preservation of property forming the subject matter of the suit. Similarly, under the A&C Act, the court or the arbitral tribunal may issue interim directions for preservation of evidence which is in the exclusive possession of a party, and which is neces - sary for protection of the subject matter of the arbi - tration. Physical Search of Documents The Bharatiya Sakshya Adhiniyam, 2023 (BSA) that replaced the Indian Evidence Act, 1872 from 1 July 2024 empowers courts to require production of any document at any time, as the court may deem fit (unless this falls under a recognised privileged com - munication). However, under criminal law, the rights of the victim are limited and do not extend to conducting a physical search of documents at the defendant’s residence or place of business. However, it may be noted that the provisions relating to privileged com - munications have been retained under the BSA. In civil proceedings, a claimant may seek discovery and inspection of the evidence through application to the court. Inspection usually takes place at the office
Law enforcement agencies often have their own inter - nal manuals governing the preservation and storage of evidence. For example, the Central Bureau of Investi - gation (CBI) manual provides that all documents and material objects seized during an investigation must be promptly sealed in a scientific manner and deposited in the designated property room, with details recorded in the submodule of crimes or relevant register. Such items can be issued to the investigating officer as and when required for the purpose of investigation upon proper receipt and must be returned thereafter. The manual also states that every investigating officer shall be personally responsible for the safe custody of such documents/items at all stages of the investigation. As mentioned in 1.3 Claims Against Parties Who Assist or Facilitate Fraudulent Acts , 1.5 Proprie- tary Claims Against Property and 1.7 Prevention of Defendants Dissipating or Secreting Assets , the ED under the PMLA may attach any property that it rea - sonably suspects to be “proceeds of crime”. Attach - ment preserves such property for use as evidence at trial. The Prevention of Money Laundering (Receipt and Management of Confiscated Properties) Rules, 2005 further regulate identification, maintenance and custody of confiscated properties. Where an attached asset is depreciating in nature, courts may permit its sale in order to realise its maximum value, even during the pendency of the trial. Following concerns raised by Financial Action Task Force (FATF) regarding use of cryptocurrencies in money-laundering activities, Indian enforcement agencies have also begun attaching cryptocurrencies and assets of such exchanges as proceeds of crime. As a measure of statutory recognition, in March 2023 the government of India (for the first time) formally brought “cryptocurrency” and “virtual digital assets” under the regulatory ambit of the PMLA, thereby mak - ing compliance with reporting requirements manda - tory. Moreover, the police and the courts are given the pow - er to seize and attach any property that is governed by the procedure provided in the BNSS. Under these criminal statutes, “property” is defined very broadly to
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