Freedom From Illegal Arrest & Prolonged Pre-Trial Custody : Supreme Court's Recent Pro-Liberty Judgments Rein In PMLA, UAPA

Although the Supreme Court has been an avid advocate and upholder of an individual's right to life and personal liberty under Article 21 of the Constitution, some of its decisions in the past few years ended up garnering public attention as being opposed to the well-settled "bail is the rule, jail an exception" jurisprudence.

From outright denial of bail in some cases, to delays in hearing and listing of others, the court's manner of functioning attracted criticism from various fields. This was particularly true of cases where relief was sought under special statutes like the Prevention of Money Laundering Act (PMLA) and the Unlawful Activities (Prevention) Act (UAPA).

Indisputably, the driving force behind some of these liberty-averse decisions were statutory provisions like Section 45 PMLA and Section 43D(5) UAPA. While under Section 45 PMLA, an accused can be granted bail only when the court is satisfied that there are "reasonable grounds" for believing that he has not committed the offence and is not likely to commit any offence while on bail, under Section 43D(5) UAPA, bail cannot be granted in case there are "reasonable grounds" to believe that the accused is prima facie guilty.

Be that as it may, the Supreme Court seemingly began course-correcting in 2023, when it voided an arrest made by the Enforcement Directorate (ED; prosecuting agency under PMLA) without furnishing the grounds of arrest to the accused in writing [Refer: Pankaj Bansal v. Union of India]. Displeased that the agency merely read out the grounds of arrest, and did not furnish them in writing, the Court said that the same did not fulfil the mandate of Article 22(1) of the Constitution (no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for arrest) and Section 19(1) of PMLA.

Ordering immediate release of the accused, the Court stated, "it would be necessary, henceforth, that a copy of written grounds of arrest is furnished to the arrested person as a matter of course and without exception". Notably, it was also held that filing of a chargesheet would not validate an illegal arrest and remand order.

Among others, this ruling came to the aid of Prabir Purkayastha, NewsClick founder and Editor-in-Chief, who went into custody in October 3 last year in a UAPA case over allegations of receiving Chinese funds to propagate anti-national propaganda. Purkayastha was ordered to be released by the Supreme Court, considering that the mandate of Pankaj Bansal judgment was not complied with by Delhi police; that is, the grounds of arrest were not adequately furnished to him in writing.

It was the state agency's case that the grounds of arrest were supplied to Purkayastha vide the arrest memo as well as the remand application. As such, the mandate of Pankaj Bansal was satisfied. However, the court disagreed, noting that the arrest memo contained "reasons for arrest" and not the "grounds for arrest", and the remand application was not served prior to the passing of the order on remand.

Distinguishing "reasons for arrest" from "grounds of arrest", the Court said that reasons are formal and can apply generally to any person arrested of an offence. They may include - preventing the accused person from committing any further offence, taking measures for proper investigation of the case, etc. However, grounds are personal and specific to the person arrested and have to be necessarily supplied.

On the claim of remand application being served, the court said, "There is no hesitation in the mind of the Court to reach to a conclusion that a copy of the remand application, in the purported exercise of the communication of the grounds of arrest in writing, was not provided to the accused-appellant or his counsel before the passing of the remand order...which vitiates the arrest and the subsequent remand of the appellant. As a result, the appellant is entitled to a direction for release from custody by applying the ration of the judgment rendered by this court in Pankaj Bansal".

After closely examining the provisions of the PMLA and UAPA, it was opined that there was no substantial difference in the language used under Section 19 PMLA and Section 43B UAPA (procedure of arrest). Therefore, the Court extended the application of the Pankaj Bansal judgment to a case under UAPA.

Two months after this decision, the Supreme Court proceeded to question whether the "necessity of arrest" should be read into Section 19 PMLA (which gives the power to arrest), in view of the doctrine of proportionality. In other words, can it be a ground to challenge arrest? This time, the court was dealing with the case of Delhi Chief Minister Arvind Kejriwal, the first elected Chief Minister of a State/Union Territory to be arrested in India while continuing in office.

Kejriwal was arrested by the ED in connection with the Delhi Liquor Policy case after a gap of 1.5 years since registration of the ECIR, at the cusp of Lok Sabha Elections 2024. Among other things, the leader questioned the necessity and timing of his arrest and even accused the probe agency of withholding exculpatory material in the name of "unrelied documents".

Eventually, the case turned on the interpretation of Section 19 PMLA, as Kejriwal challenged his arrest and remand, instead of seeking bail, given that in the latter scenario he would have had to cross the threshold of Section 45 PMLA. Though the issue was not substantively gone into by the bench presiding, it was referred to a larger bench and Kejriwal granted interim bail.

Nonetheless, the judgment in Kejriwal's case was pathbreaking, inasmuch as the bench made the following observations - (i) an officer of the ED, exercising power of arrest under Section 19(1) PMLA cannot ignore material which exonerates the arrestee, and (ii) "reasons to believe" recorded by the Investigating Officer in writing shall also be furnished to an accused to enable him to contest the validity of arrest.

"Any such non-consideration would lead to difficult and unacceptable results. First, it would negate the legislative intent which imposes stringent conditions...Secondly, any undue indulgence and latitude to the DoE will be deleterious to the constitutional values of rule of law and life and liberty of persons. An officer cannot be allowed to selectively pick and choose material implicating the person to be arrested. They have to equally apply their mind to other material which absolves and exculpates the arrestee. The power to arrest under Section 19(1) of the PML Act cannot be exercised as per the whims and fancies of the officer."

Opining that the existence and validity of “reasons to believe” goes to the root of the power to arrest, the court observed,

"it would be incongruous, if not wrong, to hold that the accused can be denied and not furnished a copy of the “reasons to believe”. In reality, this would effectively prevent the accused from challenging their arrest, questioning the “reasons to believe”. We are concerned with violation of personal liberty, and the exercise of the power to arrest in accordance with law. Scrutiny of the action to arrest, whether in accordance with law, is amenable to judicial review. It follows that the “reasons to believe” should be furnished to the arrestee to enable him to exercise his right to challenge the validity of arrest."

Additionally, it was said that arrest under Section 19 PMLA cannot be made simply for the purposes of investigation. Rather, the power can be exercised only when the concerned officer is able to form an opinion, based on material in possession, and upon recording reasons in writing, that the arrestee is guilty.

It was further held that the subjective opinion of the arresting officer must be founded and based upon fair and objective consideration of the material, as available with them on the date of arrest. Also, on the reading of the “reasons to believe”, a court must form a 'secondary opinion' on the validity of the exercise undertaken for compliance of Section 19(1) PMLA when the arrest was made.

Pertinently, it was ED's case that "grave suspicion" is sufficient to frame charge and put an accused to trial. However, the court disagreed and stated,

"The language of Section 19(1) is clear, and should not be disregarded to defeat the legislative intent – to provide stringent safeguards against pre-trial arrest during pending investigations. Framing of the charge and putting the accused on trial cannot be equated with the power to arrest. A person may face the charge and trial even when he is on bail."

Still and all, it was acknowledged that there may be some cases where it may not be feasible to disclose all material, when the investigation is still in process. In such cases, the court stated, ED may claim redaction and exclusion of specific details, after furnishing proper justification.

Another significant observation in Kejriwal's case was that ED should have a uniform policy on when a person should be arrested under the PMLA. The data presented by the agency on the number of cases registered and arrests made led the bench to comment, "The data raises a number of questions, including the question whether the DoE has formulated a policy, when they should arrest a person involved in offences committed under the PML Act".

Not much time has elapsed since these 3 decisions (Pankaj Bansal, Prabir Purkayastha and Arvind Kejriwal) were passed. However, the message is loud and clear that arrests are not to be made under UAPA and PMLA at the whims of prosecuting agencies, without compliance with due procedure. As such, they are expected to have the effect of curbing unnecessary/illegal arrests under the two statutes, which contain an exceptionally high standard for an accused's release from custody and have taken a draconian form over the years.

Impact of long pre-trial incarceration and delay in trial on UAPA, PMLA cases

Shortly before the Kejriwal judgment came another breakthrough in Javed Gulam Nabi Shaikh v. State of Maharashtra, when the Supreme Court granted bail to a man, stating that if a prosecuting agency cannot protect the right to speedy trial of an accused, then it cannot oppose his bail application on the ground that the offence was serious. This man was under custody since February, 2020 in a case over alleged smuggling of counterfeit Indian currencies from Pakistan and the trial court had not even framed charges despite passage of four years.

Since the National Investigating Agency (the prosecuting agency in the case) intended to examine at least 80 witnesses, the Court wondered by when the trial could be expected to conclude. It also lamented that the trial courts and the High Courts in the country have forgotten the principle that bail is not to be withheld as a punishment.

"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. Article 21 of the Constitution applies irrespective of the nature of the crime", observed the court.

Soon after, the Supreme Court granted bail to a man booked under the PMLA, while relaxing the rigors of Section 45 and, taking into account long period of incarceration and unlikelihood of trial completion in near future.

This new avenue for bail under PMLA subsequently helped former Delhi Deputy CM Manish Sisodia, who underwent nearly 18 months of pre-trial custody in connection with the Delhi liquor policy case. While granting bail to him, the Supreme Court took into account the long period of pre-trial incarceration as well as the fact that the trial (involving about 495 witnesses and thousands of documents) was not likely to commence/conclude in the near future.

Securing the right to speedy trial, the bench presiding over Sisodia's case also lamented that trial courts and High Courts in the country have forgotten the principle that "bail is the rule, jail an exception" and attempt to play safe. Further, an observation made by a predecessor bench in the same case, to the effect that prolonged incarceration and delay in trial should be read into Sections 439 of the Code of Criminal Procedure and Section 45 PMLA, was reiterated.

Insofar as it was the prosecution agencies' (CBI and ED) case that the delay in trial was occasioned by Sisodia himself, as he kept on filing unwarranted applications seeking "unrelied documents", the Court held that an accused is entitled to inspect even "unrelied documents" to ensure a fair trial. Thus, Sisodia was not guilty of delay on that count.

More recently, the Supreme Court supported the grant of bail in deserving cases under UAPA, saying that acting otherwise would be a violation of the rights under Article 21 of the Constitution (Refer: Jalaluddin Khan v. Union of India). It was held that "bail is the rule, jail an exception" principle stands true even in case of special statutes like UAPA; and even if allegations of the prosecution are serious, the court's duty is to consider the case for bail in accordance with law.

Interestingly, the decision was in complete contrast to the one rendered by a co-ordinate bench of the Supreme Court in Gurwinder Singh v. State of Punjab & Another in February. In the latter case, bail was denied to a man charged under UAPA for allegedly promoting Khalistani terror movement, with an observation that mere delay in trial was no ground to grant bail in grave offences.

From the phraseology of Section 43D(5) UAPA, the court inferred in Gurwinder Singh that the intention of the Legislature, while enacting UAPA, was to make "jail" the rule and "bail" an exception. Further, it opined that there was a "complete embargo" on the grant of bail under the proviso to the provision. The Court also distinguished the accused's case from K.A. Najeeb's, in whose case it was held that right to speedy trial is a fundamental right and violation thereof is a ground for bail in UAPA cases.

To quote the judgment, "The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is the exception' – unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5)– 'shall not be released' in contrast with the form of the words as found in Section 437(1) CrPC - 'may be released' – suggests the intention of the Legislature to make bail, the exception and jail, the rule".

"Bail must be rejected as a 'rule', if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied – that the Courts would proceed to decide the bail application in accordance with the 'tripod test' (flight risk, influencing witnesses, tampering with evidence)."

It is apposite to mention that the judgment in Gurwinder Singh was recently distinguished by another co-ordinate bench of the Supreme Court in Sheikh Javed Iqbal v. State of Uttar Pradesh, while granting bail to a man accused under UAPA. It was observed that the accused had undergone long incarceration of nine years with little progress in trial.

The Court was also of the view that statutory restrictions cannot stop a constitutional court from granting bail if right of the accused under Article 21 is violated. "In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb (supra) being rendered by a three Judge Bench is binding on a Bench of two Judges like us", it said.

Other pro-liberty decisions on bail and arrest

♦ On May 16, the Supreme Court held that ED cannot arrest an accused under Section 19 PMLA after the Special Court has taken cognizance of the complaint of money laundering (Refer: Tarsem Lal v. Directorate of Enforcement). If it wants custody of such an accused, then it will have to apply to the Special Court.

The crux of the issue was whether execution of a bond by the accused, for showing his presence before the court under Section 88 CrPC, amounted to applying for bail (which would make twin conditions of bail under Section 45 PMLA applicable).

The Court held that if the accused is not arrested by ED till the filing of complaint, the Special Court, while taking cognizance of the complaint, as a normal rule, must issue summons to the accused and not a warrant (even if the accused is on bail). If the accused appears before the Special Court pursuant to summons, he cannot be treated as being in custody. Therefore, it is not necessary for him to apply for bail. However, the special court can direct the accused to furnish bonds in terms of Section 88 CrPC.

It was further observed that a bond furnished in terms of Section 88 CrPC is only an undertaking. Therefore, the order accepting bond under Section 88 does not amount to grant of bail and hence, it is not necessary to fulfil the twin conditions of Section 45 PMLA.

♦ On July 8, the Supreme Court held that a bail condition enabling the police to constantly track movements of the accused, and virtually peep into their private life, cannot be imposed (Refer: Frank Vitus v. Narcotics Control Bureau)

Deleting the condition of dropping a PIN on Google Maps, imposed on a Nigerian national accused in a drugs case, the court said,

"If a constant vigil is kept on every movement of the accused released on bail by the use of technology or otherwise, it will infringe the rights of the accused guaranteed under Article 21, including the right to privacy. The reason is that the effect of keeping such constant vigil on the accused by imposing drastic bail conditions will amount to keeping the accused in some kind of confinement even after he is released on bail. Such a condition cannot be a condition of bail."

It was further opined that the condition of dropping a PIN on Google Maps was incorporated in the case without considering the technical effect of dropping a PIN and the relevance of the condition as a condition of bail.

The Court also relaxed a bail condition that required the accused to obtain an assurance from his Embassy that he would not leave India. It said that no condition that defeats the purpose of granting bail can be imposed.

♦ On July 23, while dealing with a PMLA case, the Supreme Court held that bail orders should not be normally stayed (Refer: Parvinder Singh Khurana v. Directorate of Enforcement). Highlighting that the rights guaranteed under Article 21 of the Constitution are curtailed when a person is arrested, the Court said that the power to stay bail order should be exercised sparingly and only in exceptional cases where a strong prima facie case for cancellation exists, such as cases where bail is granted without recording reasons, or where there is evidence of the accused misusing liberty (such as tampering with evidence or threatening witnesses). Further, reasons for granting the stay must be recorded.

In this case, the court had earlier expressed shock that the Delhi High Court stayed a regular bail order for a year, without giving any reasons, while the ED's plea for cancellation of the bail was pending. Underlining the importance of liberty, the court said,

"Liberty granted to an accused under the order granting bail cannot be lightly and causally interfered with by mechanically granting an exparte order of stay of the bail order... Moreover, since the issue involved is of the accused's right to liberty guaranteed by Article 21 of the Constitution, if an exparte stay is granted, by issuing a short notice to the accused, the Court must immediately hear him on the continuation of the stay."

♦ While dealing with the case of a man who was remanded to custody despite a prevailing interim anticipatory bail order, and who thereafter raised the issue of custodial torture, the Supreme Court observed that Courts must apply their minds on whether custody remand is genuinely required or not.

"Criminal jurisprudence requires that before exercising the power to grant police custody remand, the Courts must apply judicial mind to the facts of the case so as to arrive at a satisfaction as to whether the police custody remand of the accused is genuinely required. The Courts are not expected to act as messengers of the investigating agencies and the remand applications should not be allowed in a routine manner", the Court said.

For arresting and remanding the accused in ignorance of its order, the Supreme Court held a Police Inspector and a Chief Judicial Magistrate guilty of contempt and refused to accept the explanation of the Magistrate that in Gujarat, it is routine practice to give the police liberty to seek remand of the accused, while granting anticipatory bail.

Concluding Remarks

The Supreme Court going above and beyond in recent times to secure and safeguard individuals' right to personal liberty, as well as to curb unwarranted State interference with the same has rekindled hopes. While a concern regarding particular benches taking anti-liberty approaches looms, it is safe to say that the questions put to agencies in the above cases and actions taken against arbitrary arrests/detentions are likely to have a ripple effect so as to guide their future conduct.

Delay in trial and prolonged pre-trial detention are two major vices of the criminal justice system. Having read them into the stringent provisions of PMLA and UAPA, besides raising concerns about "necessity of arrest" (in PMLA cases atleast) and securing access to "unrelied documents", the Supreme Court has opened avenues for undertrials which were hitherto unknown. It won't be wishful thinking to hope that the same would go a long way in ensuring that people don't languish in jails pending trial in PMLA, UAPA cases, only on prosecution agencies' claim that "offences are serious" and "PMLA/UAPA is a special statute".

(The author is a Desk Editor/Supreme Court Correspondent at LiveLaw. She can be reached at debbyjain.legal@gmail.com)