Fundamental Rights Of Undertrial Cannot Be Infringed Inspite Of Restrictive Statutory Provisions Under PMLA: Bombay HC
The Bombay High Court observed that the fundamental rights of an undertrial cannot be allowed to be infringed inspite of the restrictive statutory provisions like Section 45 of the PMLA Act.
The Court granted bail to a 72-year-old accused suffering from cancer while observing that statutory restrictions will not come in the way of the Court to grant bail to protect the fundamental right under Article 21 of the Constitution of an undertrial accused under the Prevention of Money Laundering Act, 2002 (PMLA) for siphoning off Rs. 71.78 crores from the Shivajirao Bhosale Cooperative Bank Ltd (Bank).
A Single Bench of Justice Madhav J. Jamdar observed, “Thus, inspite of restrictive statutory provisions like Section 45 of the PMLA Act, the right of the accused undertrial under Article 21 of the Constitution of India cannot be allowed to be infringed. In such a situation, statutory restrictions will not come in the way of the Court to grant bail to protect the fundamental right of the accused under Article 21 of the Constitution of India.”
Senior Advocate Aabad Ponda appeared for the applicant, while APP Shriram Shirsa represented the respondents
The prosecution alleged that the Reserve Bank of India (RBI) had noticed various discrepancies in the records/books of accounts of the bank during one of their periodical visit to the head office of the bank.
Following an audit, it was noticed that an amount of Rs. 71.78 crore was missing from the bank’s head office. An FIR was registered against the accused.
The accused was then arrested by the Enforcement Directorate (ED) under Sections 420, 406, 408, 409, 465, 468, and 471 of the IPC as well as under Sections 3 and 70 of the PMLA.
The High Court granted bail to the accused following his application under Section 439 of the CrPC read with Section 45 of the PMLA, while noting that he had been incarcerated since 2021.
The Bench reiterated that the courts were expected to appreciate the legislative policy against the grant of bail as enacted under Section 45 of the PMLA Act but stated that “the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.”
The Court referred to the decision in Manish Sisodia v. Directorate of Enforcement, wherein the Supreme Court held that if the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious.
Consequently, the Court held that “this is a case where the trial is unlikely to conclude any time soon and is likely to take a considerably long time. As noted hereinabove, the Applicant has completed more than half of the punishment and therefore, entitled to the benefit of Section 436A of the Cr.P.C.”
Accordingly, the High Court disposed of the bail application.
Cause Title: Suryaji Pandurang Jadhav v. The Directorate of Enforcement & Anr. (Neutral Citation: 2024:BHC-AS:37345)
Appearance:
Applicant: Senior Advocate Aabad Ponda; Advocates Prashant Patil, Swapnil Ambure, Nida Khan and Poorva Joshi
Respondents: APP Shriram Shirsa, Karishma Singh and Veera Shinde
