The Bombay High Court on Tuesday sought to know from the Enforcement Directorate (ED) if an accused has the right to participate in proceedings before a special court to determine if he/she is a fugitive economic offender.
The query was made by a division bench of Justices I A Mahanty and A M Badar while hearing two petitions filed by diamantaire Mehul Choksi, accused in the multi-crore Punjab National Bank (PNB) scam.
In one petition Choksi has sought dismissal of a plea filed by the ED in a lower court for him to be declared fugitive economic offender, and in the second to permit him to cross-examine those persons on whose statements the ED is relying to declare Choksi a fugitive economic offender.
Choksi's advocate Vijay Aggarwal on Tuesday argued that the diamond businessman, who is presently out of India, was unable to travel to the country due to persistent health issues.
He said Choksi's advocates should be permitted to cross-examine witnesses so as to prove to the court that he (Choksi) was unable to travel and was not evading prosecution.
The ED's lawyer, Hiten Venegaonkar, however, opposed both the petitions and said Choksi left the country only to avoid the proceedings and was not cooperating with the probe despite several summons being issued to him by the prosecuting agency and also a non-bailable warrant issued by a lower court.
Presently, a special court set up under the Prevention of Money Laundering Act (PMLA) is hearing the ED's plea seeking for Choksi to be declared a fugitive economic offender under the recently enacted Fugitive Economic Offender Act.
The bench then sought to know what role does the accused have during such court proceedings.
"When the special court is in the process of determining whether the accused person left the country with the intention of evading prosecution or had left the country even before any complaint was filed, does the accused have no role to play?" Justice Mahanty asked.
"Does the accused have no right to present witnesses or cross-examine witnesses relied on by the prosecuting agency?" he added.
The bench has now posted the petitions for further hearing on June 10.
The court also directed Aggarwal to file an affidavit on behalf of Choksi, saying he had in the past agreed to return to India within a period of three months.
Venegaonkar said the ED, before the special PMLA court, had made an offer to provide Choksi with temporary travel documents to enable him to return to India and participate in the probe.
"At that time, the accused person (Choksi) had agreed to return within a period of three months. However, till date he has not come back," Venegaonkar said.
Choksi and his nephew Nirav Modi are wanted by the ED and the CBI for allegedly defrauding the PNB to the tune of Rs 13,400 crore, in collusion with a few of its employees.