1. Accused arrested under Section 4, Prevention of Money Laundering Act, 2002 — Application for bail under Section 436A, Code of Criminal Procedure, 1973. (Para 2 , 3 )
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2024 Supreme(SC) 907
SUPREME COURT OF INDIA
Abhay S. Oka, Ujjal Bhuyan, JJ.
Ajay Ajit Peter Kerkar – Petitioner
Versus
Directorate of Enforcement & Anr. – Respondents
Criminal Appeal No. 2601-2602 of 2024
Decided On : 16-05-2024
Important Points
IMPORTANT POINT
Section 436A of the Code of Criminal Procedure, 1973, provides for bail in cases where the trial has not commenced, emphasizing the right to a speedy trial and access to justice.
Section 436A of the Code of Criminal Procedure, 1973, provides for bail in cases where the trial has not commenced, emphasizing the right to a speedy trial and access to justice.
Subject
Criminal Law - Bail
Act Referred
Headnote
BAIL - PREVENTION OF MONEY LAUNDERING ACT - The court interpreted Section 436A of the Code of Criminal Procedure, 1973, affirming that it applies to cases under the Prevention of Money Laundering Act, 2002. The court emphasized the right to a speedy trial and access to justice as fundamental rights, allowing bail when the trial has not commenced and no delay is attributable to the accused. This interpretation influenced the court's decision to grant bail to the appellant, who had been incarcerated for 3½ years without the trial starting.
Fact of the Case:
The appellant was arrested under the Prevention of Money Laundering Act, 2002, and was set to complete 3½ years of incarceration without the trial commencing, as charges had not been framed.
Finding of the Court:
The court found that the appellant was entitled to bail under Section 436A of the Code of Criminal Procedure, 1973, as there was no delay in the trial caused by the appellant and the trial had not yet started.
Issues: Whether the appellant is entitled to bail under Section 436A of the Code of Criminal Procedure, 1973, in light of the provisions of the Prevention of Money Laundering Act, 2002, and the circumstances of the case.
Ratio Decidendi: The court held that Section 436A applies to cases under the PMLA and that the right to a speedy trial is fundamental. The absence of trial commencement and lack of delay caused by the accused justified the grant of bail.
Result: The court allowed the appeal and directed that the appellant be released on bail under Section 436A of the CRPC on 27th May, 2024, with the necessary bail formalities to be completed by 26th May, 2024.
Legal Category Hierarchy
Advocates:
Advocate Appeared:
For the Appellant :Mr. Neeha Nagpal Advocate, Mr. Malak Manish Bhatt Advocate, Mr. Vishvendra Tomar Advocate, Mr. Nikunj Mahajan Advocate, Mr. Amit Sibal Senior, Advocate, Mr. Rishabh Sharma Advocate, Mr. Darpan Sachdeva Advocate
For the Respondent:Mr. S.V. Raju ASG, Mr. Mukesh Kumar Maroria Advocate, Mr. Zoheb Hussain Advocate, Mr. Annam Venkatesh Advocate, Mr. Arkaj Kumar Advocate, Mr. Siddharth Dharmadhikari Advocate, Mr. Aaditya Aniruddha Pande Advocate, Mr. Bharat Bagla Advocate, Mr. Sourav Singh Advocate, Mr. Aditya Krishna Advocate, Mr. Preet S. Phanse Advocate, Mr. Adarsh Dubey Advocate, Ms. Yamini Singh Advocate
Advocate Appeared:
For the Appellant :Mr. Neeha Nagpal Advocate, Mr. Malak Manish Bhatt Advocate, Mr. Vishvendra Tomar Advocate, Mr. Nikunj Mahajan Advocate, Mr. Amit Sibal Senior, Advocate, Mr. Rishabh Sharma Advocate, Mr. Darpan Sachdeva Advocate
For the Respondent:Mr. S.V. Raju ASG, Mr. Mukesh Kumar Maroria Advocate, Mr. Zoheb Hussain Advocate, Mr. Annam Venkatesh Advocate, Mr. Arkaj Kumar Advocate, Mr. Siddharth Dharmadhikari Advocate, Mr. Aaditya Aniruddha Pande Advocate, Mr. Bharat Bagla Advocate, Mr. Sourav Singh Advocate, Mr. Aditya Krishna Advocate, Mr. Preet S. Phanse Advocate, Mr. Adarsh Dubey Advocate, Ms. Yamini Singh Advocate
Table of Contents
2. Whether the power to grant bail under Section 436A, Code of Criminal Procedure, 1973, must be exercised exclusively by the court of first instance. (Para 4 )
3. Section 436A, Code of Criminal Procedure, 1973, applies to PMLA cases; bail is permissible if half the maximum sentence is served, provided the accused did not delay trial. (Para 2 , 3 , 5 )
4. An accused under PMLA is entitled to bail under Section 436A, Code of Criminal Procedure, 1973, upon serving half the maximum sentence, absent trial delay caused by the accused. (Para 2 , 3 )
5. Appeals allowed — Appellant directed to be released on bail under Section 436A, Code of Criminal Procedure, 1973, upon completion of formalities. (Para 6 , 7 )
6. Does Section 436A of the Code of Criminal Procedure, 1973, apply to offences under the Prevention of Money Laundering Act, 2002?
Yes, the court held that Section 436A of the Code of Criminal Procedure, 1973, applies to cases under the Prevention of Money Laundering Act, 2002, as it is a beneficial provision. (Para 2 , 3 )
7. Under what conditions can bail be granted under Section 436A of the Code of Criminal Procedure, 1973?
Bail can be granted when the accused has served half of the maximum prescribed sentence, provided the trial delay was not caused by the accused. (Para 2 , 3 )
8. Can a higher court grant bail under Section 436A CrPC if the trial has not yet commenced?
Yes, where there is no prospect of the trial commencing as charges have not been framed, the court may grant bail under Section 436A CrPC to avoid multiplicity of proceedings. (Para 5 )
JUDGMENT :
Abhay S. Oka, J.
Leave granted.
1. Heard the learned senior counsel appearing for the appellant and the learned counsel Additional Solicitor General appearing for respondent No.1.
2. The appellant has been arrested in connection with an offence punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (for short “the PMLA”). Paragraph 416 of a decision of this Court in the case Vijay Madanlal Choudhary Vs. Union of India reads thus:
“416. The Union of India also recognized the right to speedy trial and access to justice as fundamental right in their written submissions and, thus, submitted that in a limited situation right of bail can be granted in case of violation of Article 21 of the Constitution. Further, it is to be noted that the Section 436A of the 1973 Code was inserted after the enactment of the 2002 Act. Thus, it would not be appropriate to deny the relief of Section 436A of the 1973 Code which is a wholesome provision beneficial to a person accused under the 2002 Act. However, Section 436A of the 1973 Code, does not provide for an absolute right of bail as in the case of default bail under Section 167 of the 1973 Code. For, in the fact situation of a case, the Court may still deny the relief owing to ground, such as where the trial was delayed at the instance of accused himself.”
(underline supplied)
3. In the facts of this case, the appellant will complete 3½ years of incarceration on 26th May, 2024. Thus, he will complete half of the prescribed sentence. In this case, obviously the trial has not started, as the charge has not been framed. This Court has held that Section 436A of the Code of Criminal Procedure, 1973 (for short “CRPC”) will apply even to a case under the PMLA. But the Court can still deny the relief owing to the ground such as where the trial was delayed at the instance of the accused. As stated earlier, here there is no occasion for the appellant to cause the delay in trial, as even charge has not been framed. Moreover, there is no other circumstance brought on record which will compel us to deny the benefit of Section 436A of the CRPC to the appellant.
4. The learned Additional Solicitor General submitted that the power under Section 436A of the CRPC has to be exercised by the Court of first instance.
5. In the facts of the case, we find that there is no prospect of even the trial commencing, as the charge has not been framed. In these facts, we find that the appellant will be entitled to be enlarged on bail under section 436A of the CRPC on 27th May, 2024. Hence, there is no need to have multiplicity of proceedings.
6. Hence, we allow these appeals and direct that the appellant shall be enlarged on bail under Section 436A of the CRPC on 27th May, 2024.
7. For that purpose, the appellant shall be immediately produced before the Special Court to enable the appellant to complete the bail formalities such as furnishing bail bonds etc. The Special Court will pass a formal order fixing the terms and conditions for grant of bail. The bail formalities shall be completed by 26th May, 2024.
