Can't Deny Benefit Of First Proviso To S.45 PMLA Merely Because A Woman Is Well-Educated Or An MP/MLA : Supreme Court In K Kavitha Case

The proviso, which confers discretion on the court to grant bail where the accused is a woman or belongs to any of the other categories mentioned, states -

“Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees, may be released on bail, if the special court so directs.”

The Bench of Justices BR Gavai and KV Viswanathan Bench, in the present order, sharply criticised the impugned judgment of the Delhi High Court which had dismissed Kavitha's pleas for bail. For reference, a single judge Bench of Justice Swarana Kanta Sharma, while denying her the benefit of this aforementioned proviso, had observed that K. Kavitha cannot be equated to a vulnerable woman as she was a highly qualified and well-accomplished person. For this, reliance was placed on the Supreme Court judgment in Saumya Chaurasia case.

However, the Supreme Court, without mincing its words, opined that the Court, in Saumya Chaurasia, does not say that merely because a woman is highly educated or sophisticated or an MLA, they should be denied the benefit of the proviso. Against this backdrop, the Court noted that the Single Judge of the High Court had “totally misdirected herself” while denying this benefit to the present appellant.

At the outset, the Supreme Court said that the perusal of this proviso revealed that it permitted certain categories of accused including women to be released on bail without the twin requirement under section 45 of the PMLA Act to be satisfied. However, it will all depend on the facts and circumstances of each case. In a given case, the benefit of this proviso can be denied to be woman.

Stating this, the Court marked that when the statute specifically provides special treatment for a category of accused, the Court will have to come to a specific reasoning for denying the same benefit.

“The order of the learned single judge, which denies the benefit to the appellant, makes an interesting reading...Day in and day out, it is argued before us in numerous cases that the merely because an appellant is an MLA, MP, a Minister or a Chief Minister, he should not be given a special status and should be treated equally with the other accused.  However, the learned judge, in the present case, while denying the benefit of proviso to Section 45(1) comes to a "heartening conclusion" that the appellant is highly qualified and well-accomplished person, having made significant contributions to politics and social work….The learned single judge proceeds to observe that the present appellant cannot be equated to vulnerable woman….The learned single judge observes that the proviso to Sec.45 is applicable only to vulnerable women.”

The Court said that the single judge had “totally misapplied” the ratio laid down in the Saumya Chaurasia case. It was pointed out that the Supreme Court has observed that Courts need to be more sensitive and sympathetic towards the category of persons included in the first proviso to Section 45 and similar provisions in the other Acts.

It was further observed that the persons of tender age and women who are likely to be more vulnerable, may sometimes be misused by the unscrupulous elements and made scapegoats for committing such Crimes. At the same time, it added, “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.”

Therefore, the Court had put a word of caution that while deciding such matters, the Courts should exercise discretion judiciously. Merely because women are highly educated or sophisticated or an MLA, they should be denied the benefit of the proviso.

"The Court therefore puts a caution that the Courts, while deciding such matters, should exercise the discretion judiciously using their prudence... Further, this Court in the case of Saumya Chaurasia (supra) does not say that merely because a woman is highly educated or sophisticated or a Member of Parliament or a Member of Legislative Assembly, she is not entitled to the benefit of the proviso to Section 45(1) of the PMLA."

We therefore find that the learned single bench totally misdirected herself while denying the benefit of Section 45(1) of the PML Act.,” the Court said while setting aside the impugned judgment.

Kavitha has approached the Supreme Court challenging the Delhi High Court's judgment dated July 1, 2024, whereby her pleas for bail in the liquor policy cases (registered by CBI and ED) were dismissed.  

Kavitha was arrested on the evening of March 15 by the ED and has been under custody since then. The CBI arrested her while she was in judicial custody in the ED case.

Today, the Court allowed her release on bail in both cases on furnishing bonds for Rs 10 lakhs each. The Court further directed her to deposit the passport and that she should not attempt to influence or intimidate the sureties.

Case Title : KALVAKUNTLA KAVITHA Versus DIRECTORATE OF ENFORCEMENT | SLP(Crl) No. 10778/2024 & KALVAKUNTLA KAVITHA v. CENTRAL BUREAU OF INVESTIGATION |SLP(Crl) No. 10785/2024

Citation : 2024 LiveLaw (SC) 614