Anticipatory Bail under the Prevention of Money Laundering (PMLA) Act of 2002
For Anticipatory Bail, a person can apply under Section 438 of the Code of Criminal Procedure (Cr P.C.) which is issued only by the Sessions Court and High Court.
Five most important points which must be kept in mind while applying for an anticipatory bail under the Prevention of Money Laundering (PMLA) Act of 2002:-
- The nature/gravity of the offence committed by the person seeking Anticipatory Bail.
- The Evidence confiscated from the Accused and all the facts of the Prosecution’s Case.
- The Statement of the Investigating Officer and Government Lawyer.
- The background of the accused i.e. whether he/she was previously involved in any criminal activity whatsoever.
- The Initial Report of the Investigating Officer and all the statements registered in the Case File.
According to Section 438 of the Code of Criminal Procedure, 1973 the High Court or the Sessions Court may include directions or conditions while deciding the Anticipatory Bail Application filed by the Applicant, depending upon the facts of the case as the Court may think fit including that : –
● the person shall make himself available for interrogation by a police officer as and when required;
● the person shall not, directly or indirectly induce, make a threat or promise to any person connected with the facts of the case to prevent him from disclosing such facts to the Court or any police officer;
● the person shall not leave India without the prior permission of the Court;
The above-mentioned conditions are primary in nature whereas there are other several conditions which shall be duly taken into consideration before applying for the grant of Bail, by the Court.
Under the Prevention of Money Laundering (PMLA) Act of 2002 if a person is indulged in the offence of Money Laundering i.e. the transformation of financial gain of various crimes into legitimate assets and other financial assets, he/she can be presumed guilty of offences under PMLA and if held guilty, be punished accordingly.
In P. Chidambaram vs Directorate Of Enforcement Criminal Appeal No. 1340 2019, the Hon’ble Supreme Court dismissed the appeal of the appellant, the court concluded that granting anticipatory bail to the appellant will hamper the investigation and that this is not a fit case for exercise of discretion to grant anticipatory bail. Furthermore, the anticipatory bail at the stage of an investigation might hinder the investigation as crucial evidence can be concealed by the accused.
In Gautam Kundu Vs. Manoj Kumar, Govt. of India Criminal Appeal No. 1706 of 2015, the issue that whether the provisions of Section 45 of the PMLA are binding on the High Court while considering the application for bail Under Section 439 of the Code of Criminal Procedure was raised. The Court held that Section 45 of the PMLA will have an overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. It means that even when the High Court is exercising special power to grant being under Section 439 of the Code the restriction in Section 45 of the Prevention of Money Laundering (PMLA) Act of 2002 is applicable.
Authored By: Adv. Anant Sharma & Chhatresh Kumar Sahu