S.45 PMLA Doesn't Bar Power Of Court To Grant Bail If There's Delay In Trial : Justice Sanjiv Khanna

Supreme Court judge Justice Sanjiv Khanna on Wednesday (March 20) orally observed that Section 45 of the Prevention of Money Laundering Act(PMLA) does not bar a Court from granting bail to an accused if there is prolonged incarceration and delay in trial.

According to Section 45 of the PMLA, bail can be granted to an accused in a money laundering case only if twin conditions are satisfied - there should be prima facie satisfaction that the accused has not committed the offence and that he is not likely to commit any offence while on bail.

Justice Khanna said that the right to bail on the ground of prolonged incarceration is something which flows from Article 21 of the Constitution which is not taken away by Section 45. Justice Khanna added that the judgment in the Manish Sisodia's case, where the accused was granted liberty to apply for bail if there was delay in trial, made this aspect clear.

A bench comprising Justices Sanjiv Khanna and Dipankar Datta was hearing the bail application of Prem Prakash, alleged to be the aide of Jharkhand Chief Minister Hemant Soren, in a money laundering case. Noting that the accused has spent 18 months in jail, Justice Khanna told Additional Solicitor General SV Raju :

"He has already suffered incarceration for 18 months. That Constitutional right is not taken away by Section 45. It is very clear. Even in Manish Sisodia, I said that the default bail is something separate. And even otherwise, if there is a delay in trial, the power of the Court to grant bail is not taken away. Manish Sisodia is very clear on that. You cannot say it is a bar. It is an enabling provision. It is not a bar as far as delay is concerned, because this right flows from Article 21."

ASG argued that as per the statute (Section 436A CrPC), the undertrial has to spend at least 50% of the maximum sentence to seek bail on the ground of delay.

However, Justice Khanna disagreed, saying that Section 436A CrPC is only an enabling provision and does not disable the Court from granting bail.

"Mr. Raju, I am very clear on that. That is an enabling provision, not a disabling provision. If there is delay, the Court can give interim bail," Justice Khanna said.

Although the bench was inclined initially to grant interim bail to the accused, at the request of ASG, the bench adjourned the hearing by a month to ascertain the progress of trial. The Trial Court was directed to expedite the trial and conduct it preferably on a day-to-day basis.

During the hearing, the bench pointed out that when criminal conspiracy (Section 120B of the Indian Penal Code) is not linked to a scheduled offence, PMLA cannot be invoked as held in the recent Supreme Court judgment. However, the ASG argued that if the complaint otherwise makes out a predicate offence, PMLA can be invoked, regardless of the sections mentioned. ASG argued that he can demonstrate that the complaint makes out predicate offences.

Case : Prem Prakash v Union of India SLP(Crl) No. 691/2023