1. Appeal against High Court order granting anticipatory bail for an offence under the Prevention of Money Laundering Act. (Para 2 )
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2022 Supreme(SC) 800
SUPREME COURT OF INDIA
A.M. KHANWILKAR, C.T. RAVIKUMAR, JJ.
The Asst. Director Enforcement Directorate - Appellant
Versus
Dr. V.C. Mohan - Respondent
Criminal Appeal No.21 of 2022 (Arising from the SLP(Crl.) No. 8441 of 2021)
Decided on : 04-01-2022
Important Points
The central legal point established in the judgment is that the mandate of Section 45 of the Prevention of Money Laundering Act must be considered when dealing with a prayer for anticipatory bail in connection with a PMLA offence.
Subject
Criminal Law - Bail and Anticipatory Bail
Act Referred
Headnote
PMLA Act - Anticipatory Bail - The court set aside the judgment granting anticipatory bail to the respondent in connection with an offence under the Prevention of Money Laundering Act (PMLA) and directed the High Court to reconsider the grant of anticipatory bail in light of the mandate of Section 45 of the PMLA Act.
Fact of the Case:
The appeal challenged the grant of anticipatory bail to the respondent in connection with an offence under the Prevention of Money Laundering Act (PMLA). The High Court had granted anticipatory bail to the respondent, treating the matter as if it was dealing with a prayer for anticipatory bail in connection with an ordinary offence under the Indian Penal Code.
Finding of the Court:
The court set aside the judgment and order of the High Court, emphasizing that the mandate of Section 45 of the PMLA Act must be considered when dealing with a prayer for anticipatory bail in connection with a PMLA offence. The court directed the parties to be relegated before the High Court for reconsideration of the grant of anticipatory bail.
Issues: The key issue was the misinterpretation of the nature of the offence under the PMLA Act and the failure to consider the mandate of Section 45 of the PMLA Act when granting anticipatory bail.
Ratio Decidendi: The court emphasized that the underlying principles and rigors of Section 45 of the PMLA Act must be triggered when considering a prayer for anticipatory bail in connection with a PMLA offence, even if the application is under Section 438 of the Code of Criminal Procedure.
Final Decision: The court set aside the impugned judgment and order, directing the High Court to reconsider the grant of anticipatory bail in connection with the stated PMLA offence. The High Court was instructed to decide the remanded/restored petition on its own merits and in accordance with the law.
Legal Category Hierarchy
Advocates:
Advocate Appeared:
For the Appellant : Mr. K. M. Nataraj, Mr. Jayant K Sud, Mr. Akshay Amritanshu, Adv.
Mr. Shailesh Madiyal, Adv., Ms. Indira Bhakar, Adv., Mr. Digvijay Dam, Adv., Mr. Manish, Adv., Mr. Mukesh Kumar Maroria, AOR
For the Respondent: Mr. Dama Seshadri Naidu, Adv., Mr. A.V.S. Raju, Adv., Ms. Shivali Choudhary, Adv., Mr. Somanatha Padhan, AOR
Advocate Appeared:
For the Appellant : Mr. K. M. Nataraj, Mr. Jayant K Sud, Mr. Akshay Amritanshu, Adv.
Mr. Shailesh Madiyal, Adv., Ms. Indira Bhakar, Adv., Mr. Digvijay Dam, Adv., Mr. Manish, Adv., Mr. Mukesh Kumar Maroria, AOR
For the Respondent: Mr. Dama Seshadri Naidu, Adv., Mr. A.V.S. Raju, Adv., Ms. Shivali Choudhary, Adv., Mr. Somanatha Padhan, AOR
Table of Contents
2. Respondent contended that the objection regarding the applicability of Section 45 of the PMLA Act was not raised before the High Court. (Para 6 )
3. The High Court erred by treating a PMLA anticipatory bail application as an ordinary offence under the Indian Penal Code, ignoring the mandate of Section 45 PMLA. (Para 3 , 4 , 5 , 6 )
4. For anticipatory bail applications concerning PMLA offences, the rigors of Section 45 of the PMLA Act must be triggered, regardless of the application being under Section 438 CrPC. (Para 4 , 5 )
5. Impugned order set aside and matter remanded to the High Court for fresh reconsideration of the anticipatory bail petition. (Para 7 , 8 , 9 , 10 , 11 )
6. Does the mandate of Section 45 of the PMLA Act apply to anticipatory bail applications filed under Section 438 of the CrPC?
Yes. When a prayer for anticipatory bail is made in connection with an offence under the PMLA Act, the underlying principles and rigors of Section 45 of the PMLA Act must be triggered, even if the application is filed under Section 438 of the Code of Criminal Procedure. (Para 4 , 5 )
7. Does the existence of a predicate offence under ordinary law exempt a PMLA case from the rigors of Section 45 PMLA?
No. Although an offence under the PMLA Act is dependent on a predicate offence under ordinary law, this does not mean the mandate of Section 45 of the PMLA Act is excluded when considering anticipatory bail. (Para 4 )
8. Is a court obligated to examine jurisdictional mandates like Section 45 of the PMLA Act if no party raises an objection?
Yes. It is the duty of the court to examine jurisdictional facts, including the mandate of Section 45 of the PMLA Act, regardless of whether a specific objection was taken by the parties. (Para 6 )
ORDER :
1. Leave granted.
2. This appeal takes exception to the judgment and order dated 25.06.2021 passed by the High Court of Telangana at Hyderabad in Criminal Petition No. 4134 of 2021, whereby the High Court granted anticipatory bail to the respondent in connection with offence concerning the Prevention of Money Laundering Act (for short 'PMLA Act') being F.No. ECIR/HYZO/20/2019/2246 bearing summons dated 11.05.2021.
3. For the nature of order that we propose to pass suffice it to observe that the High Court considered the matter as if it was dealing with prayer for anticipatory bail in connection with ordinary offence under the Indian Penal Code.
4. Indeed, the offence under the PMLA Act is dependent on the predicate offence which would be under ordinary law, including provisions of Indian Penal Code. That does not mean that while considering the prayer for grant of anticipatory bail in connection with PMLA offence, the mandate of Section 45 of the PMLA Act would not come into play.
5. Mr. Dama Seshadri Naidu, learned senior counsel appearing for the respondent invited our attention to the dictum in paragraph 42 of the judgment in Nikesh Tarachand Shah vs. Union of India & Anr. reported in (2018) 11 SCC 1. The observations made therein have been misunderstood by the respondent. It is one thing to say that Section 45 of the PMLA Act to offences under the ordinary law would not get attracted but once the prayer for anticipatory bail is made in connection with offence under the PMLA Act, the underlying principles and rigors of Section 45 of the PMLA Act must get triggered — although the application is under Section 438 of Code of Criminal Procedure. As aforesaid, the High Court has not touched upon this aspect at all.
6. It is urged before us by the respondent that this objection was never taken before the High Court as it is not reflected from the impugned judgment. It is not a question of taking objection but the duty of court to examine the jurisdictional facts including the mandate of Section 45 of the PMLA Act, which must be kept in mind.
7. Accordingly, we deem it appropriate to set aside the impugned judgment and order and relegate the parties before the High Court for reconsideration of Criminal Petition No. 4134 of 2021 afresh for grant of anticipatory bail filed under Section 438 of the Code of Criminal Procedure in connection with stated PMLA offence.
8. The High Court may hear the remanded proceedings expeditiously, preferably within four weeks from the date of receipt of copy of this order. The interim protection given by the High Court to the respondent shall continue for a period of four weeks from today and to be subject to the outcome of the said remanded/restored petition, referred to above.
9. Needless to observe, the High Court will decide the remanded/restored petition on its own merits and in accordance with law.
10. The appeal(s) stands disposed of in the above terms.
11. Pending applications, if any, stand disposed of
