ECIR not FIR, presenting copy to accused is not mandatory: Supreme Court

The Supreme Court on Wednesday reiterated that an Enforcement Case Information Report (ECIR) cannot be equated with an FIR, and providing a copy of it to the person concerned in every case is not mandatory.

A bench of Justices A M Khanwilkar, Dinesh Maheshwari and C T Ravikumar said showing the ECIR’s copy is not required, it is enough if the Enforcement Directorate (ED), at the time of arrest, discloses the grounds for it.

“ECIR is an internal document of the ED and the fact that FIR, in respect of scheduled offence has not been recorded, does not come in the way of the authorities referred to in Section 48 to commence inquiry/investigation for initiating ‘civIndiail action’ of ‘provisional attachment’ of property being proceeds of crime,” the bench stated in its ruling.

The court was looking into the contention that the ED cannot arrest an individual based on an ECIR without informing him of its contents, which is per se arbitrary and violative of the constitutional rights of an accused.

Also read: Supreme Court upholds ED's power to arrest under PMLA

The petitioners claimed that in some cases, the ECIR was voluntarily provided, while in others it was not, which was completely arbitrary and discriminatory.

The bench said the person arrested for the offence of money-laundering is informed about the grounds of his arrest. The court explained that when the arrested is produced before a special court, it is up to the special court to call upon the ED representative to produce relevant records concerning the case and look into the need for a continued detention of the accused.

The apex court also said that the ECIR cannot be equated with an FIR, which is mandatorily required to be recorded and supplied to the accused. “Revealing a copy of an ECIR, if made mandatory, may defeat the purpose sought to be achieved by the 2002 Act including frustrating the attachment of property (proceeds of crime),” the bench said.

The bench noted that not supplying an ECIR—which is essentially an internal document of the ED—cannot be cited as violation of a constitutional right. “This is compliant with the mandate of Article 22(1) of the Constitution. It is not unknown that at times FIR does not reveal all aspects of the offence in question. In several cases, even the names of persons actually involved in the commission of offence are not mentioned in the FIR and described as unknown accused,” the bench said.

The bench said, even the particulars as unfolded are not fully recorded in the FIR; yet, the accused named in any ordinary offence is able to apply for anticipatory bail or regular bail, in which proceeding, the police papers are normally perused by the concerned court.

However, an ECIR may contain details of the material in possession of the authority and if revealed, it “may have deleterious impact on the final outcome of the inquiry/investigation,” the court said.

In some cases, the ED has furnished a copy of the ECIR to the person before filing the complaint. “That does not mean that in every case the same procedure must be followed. It is enough if ED, at the time of arrest, contemporaneously discloses the grounds of such arrest to such person,” the court ruled.