Bail under the Prevention of Money Laundering (PMLA) Act of 2002
The basis of Bail lies on the principle that there is an assumption of innocence of a person until he is found guilty. In most of the cases where bail is granted, a sum of money or property has to be deposited to the Court as a guarantee that the accused will appear in Court, whenever required.
The Section 45 of the Prevention of Money Laundering (PMLA) Act of 2002 provides that the accused cannot be granted bail for any offence under the Act unless ‘the public prosecutor’, appointed by the Government, gets a chance to oppose his bail. If he does so, the court has to be convinced that the accused was not guilty of the crime and additionally, that they were not likely to commit any offence while out on bail.
To simplify, Section 45 imposes twin conditions, which are:-
- The public prosecutor must get a chance to oppose the accused’s bail application, and
- The Court must be convinced that the accused is innocent and he/she is not likely to commit any offence while on bail.
In Nikesh Tarachand Shah v. Union of India Writ Petition (Criminal) No. 67 of 2017 the Hon’ble Supreme Court held the above-mentioned conditions unconstitutional and observed that these conditions violate article 14 and 21 of the Constitution of India as the conditions applied only to offences, punishable by imprisonment of three or more years. Thus, Section 45 of PMLA has been amended in 2019, which proposes uniform applicability of bail conditions to different offences and empowers the investigating agency to arrest without warrant if the twin conditions are fulfilled.
Furthermore, In Gautam Kundu vs Manoj Kumar Assistant Director Criminal Appeal No. 1706 of 2015, the Hon’ble Apex 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.
In Neeru Yadav v. State of Uttar Pradesh and another (2014) 16 SCC 508; Supreme Court has provided four points which are to be kept in mind while granting Bail,
(a) While granting bail, the Court has to keep in mind the nature of the accusations as well as the severity of the punishment.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of a threat for the complainant, should also be considered by the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
The Orissa High Court in Indu Dewan vs. Republic of India (C.B.I.) 2016 (II) OLR 834 held that consideration of bail in economic offences should not be in the same footing as of other offences and in the present case, Petitioner actively involved in economic offences. The petitioner in economic offences of serious consequences deserves no sympathy for the larger interest of public and society.
Authored By: Adv. Anant Sharma & Chhatresh Kumar Sahu