Bail to under-trial prisoners - evolving jurisprudence
NOVEMBER 04, 2024
By Dr M S Krishna Kumar, Advocate
Introduction
SEC.45 of the Prevention of Money Laundering Act, 2002 (PMLA) imposes twin conditions for grant of bail to a person accused of an offence under the Act (a) Public Prosecutor (PP) has been given an opportunity to oppose bail; (b) where the PP opposes the bail the Court is satisfied that there are reasonable grounds to believe that such person is not guilty of offence and is not likely to commit any offence while on bail. Though a bail application is moved under Sec.439 of Criminal Procedure Code (CrPC) read with Sec.45 of PMLA 2002, by virtue of a non-obstante clause in Sec.45, the twin conditions prevail over CrPC as observed by various High Courts and Apex Court. The Hon'ble Supreme Court in the celebrated case of Vijay Madanlal Choudhary Vs UOI & others 1 while upholding the constitutional validity of Sec.45 of the Act including granting bail for which rigors of provision would apply, however, observed that the beneficial provision of Section 436A of the CrPC could be invoked by the accused arrested for offence punishable under the 2002 Act. The Apex Court observed that Sec.436A of 1973 Code is in recognition of ‘constitutional right' of accused for speedy trial under Art. 21, which upholds the tenets of speedy justice. The Apex Court set in motion a new bail jurisprudence under PMLA by holding that if trial cannot proceed even after accused having undergone one-half of minimum period of imprisonment, there is no reason to deny bail to the accused. This Article examines the paradigm shift in granting bail under PMLA 2002.
Sec.45 of PMLA 2002
While Sec 45 (1) of the PMLA 2002 with a non-obstante clause (provisions of the Act override CrPC) imposes twin conditions for grant of bail to a person accused of committing money laundering offence, Sec.45(2) stipulated that the limitation for granting bail is in addition to the limitation under CrPC or any other law for time being in force. It is to be noted that Sec.212(6) of the Companies Act, 2013 contains identical twin conditions for grant of bail. Sec.37 of NDPS Act, 1985 contains provisions akin to PMLA.
Sec.436A of CrPC - Maximum Period for which an undertrial prisoner can be detained.
Sec.436A (1) of the Code provides that where a person who has undergone detention for a period extending up to one-half of maximum period of imprisonment specified for that offence (not being an offence punishable with death penalty) he shall be released by Court on his personal bond. 1st Proviso of Sec.436A (1), however, provides that the Court after hearing the PP and recording reasons in writing may order for continued detention, longer than one-half of the period. 2nd Proviso provides that no person shall be detained during investigation/trial for more than maximum period of imprisonment provided for the said offence under that law.
Section 479 in Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS 2023) - Maximum period for which undertrial prisoner can be detained.
The CrPC has been replaced by BNSS 2023, from 1st July 2024. Corresponding provision Sec.479(1) of BNSS 2023 also provides that a person who has undergone detention for a period extending up to one-half of maximum period of imprisonment specified for that offence (not being an offence punishable with death penalty) he shall be released by Court on his personal bond. 1st proviso, however, inserts a new scenario which provides that where such person is a first-time offender (who has never been convicted for any offence in the past) he shall be released if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law. Sec.479(3) empowers the Superintendent of Jail to make an application in writing to the Court, where accused person detained has completed one-half or one-third of imprisonment.
Inhuman conditions in jail - under-trial prisoners overcrowding jails without trial.
A letter dated 13th June 2013 addressed by Justice R.C. Lahoti, a former Chief Justice of India to Hon'ble the Chief Justice of India relating to conditions in 1382 prisons in India sought for intervention of Apex Court in public interest, as a citizen of India. By order dated 5th July 2013 the letter was registered as a Public Interest Litigation (PIL) 2 The Social Justice Bench of Apex Court passed an order on 13th March, 2015 required the Union of India to furnish certain information primarily relating to the more serious issue of over-crowding in prisons and improving the living conditions of prisoners. Issues raised in PIL are overcrowding in prisons; unnatural deaths of prisoners; gross inadequacy of staff; and the available staff being untrained or inadequately trained
With regard to the issue regarding effective implementation of Section 436A of the Code of Criminal Procedure, (Cr.P.C.), the affidavit filed by UOI stated that an advisory had been issued by the Ministry of Home Affairs of the Government of India on 17th January, 2013 to all the States and Union Territories to implement the provisions of Section 436A of the Cr.P.C. to reduce overcrowding in prisons.
By letter dated 22.9.2014, MHA drew attention of Director General of Prisons of all States/Union Territories to the directions of Apex Court in Bhim Singh v. Union of India 3 dated 5th September, 20146 relating to Section 436A of the Cr.P.C. and to take necessary steps to comply with the orders passed by this Court. 4
After the substituted provisions of Sec.479 of BNSS 2023 came into force, which is more beneficial vis-a-vis Section 436A of CrPC, the Apex Court directed the ASG to obtain instructions from Department with regard to application of provisions especially with reference to all first time offenders, to all undertrials across the country. (Order dated 23.8.2024) The Apex Court directed implementation of Section 479 of the BNSS by calling upon Superintendents of Jails across the country wherever accused persons are detained as undertrials, to process their applications upon their completion of one-half/one-third, as the case may be.5
Application of Sec.479 of BNSS to bail applications under Sec.45 of PMLA 2002
Sec.479 of BNSS 2023 (corresponding Sec.436A of CrPC) provides for maximum period for which undertrial prisoner can be detained, while empowering the Courts to release such accused on bail on completion of one half or one third (for first time offenders) of maximum period of imprisonment. This provision has a chequered history from its insertion by Ordinance with effect from 23rd June 2005, to comply with Art 21 of Constitution of India which ensures right to speedy trial, and the accused should not languish in prisons especially in inhuman conditions for no fault of theirs, when the trial is yet to commence or inordinately delayed.
Apex Court in Manish case while concerned about the prolonged period of incarceration suffered by the appellant, emphasized right to speedy trial under Art. 21 of Constitution of India as fundamental right. The Apex court Manish Sisodia Vs DOE - SC 6 observed as follows "..As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor…" The Court granted bail as prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial.
The Apex court in Badshah Majid Malik Vs DoE-SC 7 - by exercising the powers under first proviso to Section 479 (1) of the BNSS granted bail as the Petitioner had undergone detention for a period of more than 1/3rd of the maximum period of imprisonment provided for the offence alleged against him, as the maximum sentence for the scheduled offence under Sections 132, 135(1)(a)(ii) and 135(1)(b)(ii) read with Section 140 of the Customs Act, 1862 is three years.
Following the ratio laid down by Apex Court in Badshah Majid Malik case, the Hon'ble Madras High Court recently in Ahmed A.R Buhari Vs DOE - Mad 8 - invoking the powers under first proviso to Section 479 (1) of the BNSS granted bail as the Petitioner already suffered 2 years and 6 months, which is more than 1/3rd of the maximum punishment for the offence under Section 4 of PMLA.
Recently, the Hon'ble Delhi H.C in the case of Vaibhav Jain Vs DOE - Del9 - granted bail by applying Sec.436A of CrPC on the ground that the Petitioners are in custody for more than 24 months and trial is yet to commence. The Delhi H.C observed that Constitutional courts have power to grant bail on the grounds of violation of Part III of Constitution and Section 45 does not act as a hindrance to the same, as the sacrosanct right to liberty and fair trial is to be protected even in cases of stringent provisions present in special legislations. The court held that Section 45 of the PMLA would have to give way to the constitutional mandate of Article 21.
Recently, the Apex Court in the case of Prem Prakash Vs DOE- SC 10 granted bail, while noting that they do not find any justification for continued detention of Petitioner as he has been in custody for over one year and trial is yet to commence. The Apex court held that Sec.45 of PMLA needs to be understood and applied on the basis of judgments rendered, and further Art. 21 of Constitution being a higher constitutional right, statutory provisions should align with higher constitutional edict.
Conclusion
Apex Court has observed that it is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception".11 Detention without trial is a serious inroad on personal freedom but it bears the sanction of our Constitution.12 Detention without trial is an anathema to all those who love personal liberty and such a law makes deep inroads into basic human freedoms13 Bail jurisprudence has evolved in PMLA 2002 especially after the ratio of Apex Court in Vijay Madanlal Choudhary case, to follow Sec.436A of CrPC, now governed by Sec.479 of BNSS 2023. After the Apex court has set a new procedure for Bail in IN RE- Inhuman Conditions in 1382 Prisons14 directing the Prison authorities to initiate action under above provisions, the law was set into motion followed by Apex Court and High Courts granting bail to accused under PMLA 2002 in terms of Sec.436A of CrPC/Sec.479 of BNSS 2023., overriding the stringent twin conditions under Sec.45 of PMLA 2002. As trial under PMLA for money laundering offence is also intrinsically connected to the trial of "scheduled offence" which, may or may not be tried in the same Court, may take years to decide and in the meantime the accused are destined to languish in prisons as pre-trial prisoners, the change in bail jurisprudence is a much awaited one.
[The views expressed are strictly personal.]
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1 2022 SCC online SC 929 = 2022-TIOL-60-SC-PMLA-LB
2 Numbered as W.P ( C) 406/2013
3 MANU/SC/0786/2014
4 Order dated 5th Feb 2016 in W.P (C) 406/2013
5 Order dated 23rd Aug 2024 in W P (CIVIL) NO. 406/2013 - IN RE-INHUMAN CONDITIONS IN 1382 PRISONS
6 Manish Sisodia Vs DOE - SC - SLP Crl No. 8781/2024 dated 09.08.2024 = 2024-TIOLCORP-06-SC-PMLA
7 SLP Crl. 10846/2024 - 18.10.2024
8 Crl O P 25602/2024 dated 24.10.2024
9 BAIL APPLN. 3301/2024, CRL.M.(BAIL) 1529/2024 - 29.10.2024
10 SLP Crl. 5416/2024 dated 28.08.2024 = 2024-TIOLCORP-07-SC-PMLA
11 Supra note 6
12 Justice Y.V Chandrachud in ADM Jabalpur Vs S.S Shukla & others 1976 AIR 1207
13 Justice H. R. Khanna in ibid
14 Supra note 6
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