Not Mandatory To Grant Bail Merely Because PMLA Accused Is A Woman: Supreme Court
The Supreme Court observed that it is not mandatory to grant bail by invoking the first proviso to Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA) merely because accused is a woman.
The Court noted that nowadays the educated and well placed women in the society engage themselves in the commercial ventures and enterprises, and advertently or inadvertently engage themselves in the illegal activities.
The Court was deciding a case in which a woman who was the Deputy Secretary in the office of the Chief Minister, Chhattisgarh was arrested and remanded to Enforcement Directorate (ED) custody. She had filed an appeal against the order of the Chhattisgarh High Court which had dismissed her bail application under Section 439 of the Criminal Procedure Code (CrPC).
The two-Judge Bench comprising Justice Aniruddha Bose and Justice Bela M. Trivedi observed, “The use of the expression “may be” in the first proviso to Section 45 clearly indicates that the benefit of the said proviso to the category of persons mentioned therein may be extended at the discretion of the Court considering the facts and circumstances of each case, and could not be construed as a mandatory or obligatory on the part of the Court to release them. Similar benevolent provision for granting bail to the category of persons below the age of sixteen years, women, sick or infirm has been made in Section 437 Cr.P.C. and many other special enactments also, however by no stretch of imagination could such provision be construed as obligatory or mandatory in nature, otherwise all serious offences under such special Acts would be committed involving women and persons of tender age below 16 years.”
Senior Advocate Siddharth Aggarwal appeared for the appellant/accused while ASG S.V. Raju appeared for the respondent/ED.
Brief Facts -
A search and seizure action under Section 132 of the Income Tax Act, 1961 was carried out against an individual and an FIR was lodged against him for the offences under Sections 186, 204, 120-B, and 353 of the Indian Penal Code (IPC). The appellant i.e., the accused was arrested and the ED sought judicial custody of her for 14 days, however, the Special Court granted the same initially for 5 days which was then extended. She filed an application under Section 437 of the CrPC read with Sections 45 and 65 of the PMLA before the Special Court.
The Special Court rejected her bail application and hence, she filed the same before the High Court. However, the High Court also rejected her application and the complainant filed a protest petition under Section 173(8) of the CrPC against the final report of the State Police praying for the completion of the investigation of offences. The accused being aggrieved by the order of the High Court, preferred the appeal before the Apex Court under Article 136 of the Constitution.
The Supreme Court in view of the above facts noted, “… the Court has a reason to believe that there was a bold attempt made by and on behalf of the appellant to misrepresent the facts for challenging the impugned order. … The Certificate to be issued by the Advocate-on-Record and the Affidavit to be filed by or on behalf of the petitioner/appellant at the end of the SLP as per the provisions contained in the Supreme Court Rules, do carry sanctity in the eyes of law. It is unbelievable that the battery of lawyers appearing for the appellant did not notice the apparent fact that when the chargesheet and cognizance order were not in existence before the High Court when the arguments were concluded and the judgment was reserved, non-consideration of the same by the High Court could not be made the basis for challenging the said order in the SLP before this Court.”
In the above regard, the Court further said that every party approaching the court seeking justice is expected to make full and correct disclosure of material facts and that every advocate being an officer of the court, though appearing for a particular party, is expected to assist the court fairly in carrying out its function to administer the justice.
“It hardly needs to be emphasized that a very high standard of professionalism and legal acumen is expected from the advocates particularly designated Senior advocates appearing in the highest court of the country so that their professionalism may be followed and emulated by the advocates practicing in the High Courts and the District Courts”, added the Court.
Coming back to the main issue of the case, the Court noted that the underlying principles and rigours of Section 45 of the Act must come into play and without exception ought to be reckoned to uphold the objectives of the Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money laundering.
“In essence, the courts should exercise the discretion judiciously using their prudence, while granting the benefit of the first proviso to Section 45 PMLA to the category of persons mentioned therein. The extent of involvement of the persons falling in such category in the alleged offences, the nature of evidence collected by the investigating agency etc., would be material considerations. … In the instant case as discussed hereinabove, there is sufficient evidence collected by the respondent Enforcement Directorate to prima facie come to the conclusion that the appellant who was Deputy Secretary and OSD in the Office of the Chief Minister, was actively involved in the offence of Money Laundering as defined in Section 3 of the PMLA”, also observed the Court.
Furthermore, the Court said that when the FIR is registered under particular offences which include the offences mentioned in the Schedule to the PMLA, it is the court of competent jurisdiction, which would decide whether the Charge is required to be framed against the accused for the scheduled offence or not.
“As held by the Three-Judge Bench in Vijay Madanlal (supra), it is only in the event the person named in the criminal activity relating to a scheduled offence is finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the criminal case (scheduled offence) against him/ her, there can be no action for money laundering against such a person or person claiming through him in relation to the property linked to the stated scheduled offence”, concluded the Court.
Accordingly, the Apex Court dismissed the appeal and imposed a cost of Rs. 1 lakh on the appellant for misrepresentation of facts in the appeal.
Cause Title- Saumya Chaurasia v. Directorate of Enforcement (Neutral Citation: 2023 INSC 1073)
Appearance:
Appellant: Senior Advocate Kapil Sibal, AOR Malak Manish Bhatt, Advocates Arshdeep Singh Khurana, Harshwardhan Parganiha, Neeha Nagpal, Aditya Chopra, Mandeep Singh, Harsh Srivastava, Arshiya Ghose, and Sidak Anand.
Respondent: AOR Mukesh Kumar Maroria, Advocates Zoheb Hossain, Annam Venkatesh, Sairica Raju, Chandra Prakash, Arkaj Kumar, Vivek, Manisha Dubey, Ankit Bhatia, Hitarth Raja, Agrimaa Singh, Kshitiz Aggarwal, Harsh Paul Singh, Samrat Goswami, Bhavini Srivastava, Vinayak Sharma, Gaurav Sarkar, and Sonali Sharma.
