Bail Provision under section 45 of PMLA-2002:

Why in News? India’s Supreme Court has granted bail to a prominent opposition leader of Delhi’s governing Aam Aadmi Party (AAP) in a money laundering case.

The top court said Manish Sisodia’s prolonged incarceration had “violated his right to a speedy trial”.

Mr Sisodia has been in jail for more than 17 months in a case related to alleged irregularities in a now-scrapped liquor policy in the city.

The court observed that when a trial gets prolonged, it is not open to the prosecution to oppose bail of the accused-undertrial on the ground that the charges are very serious. Bail cannot be denied only on the ground that the charges are very serious though there is no end in sight for the trial to conclude”.

Bail Provisions under Section 45 of PMLA ,2002:

Original Text of Section 45:

• When the PMLA was enacted in 2002, Section 45 laid down stringent conditions for granting bail to persons accused of offenses under the Act. Specifically:
• Sub-section (1): It provided that an accused person shall not be released on bail or on his own bond unless:
• The Public Prosecutor had been given an opportunity to oppose the bail application, and
• The court was satisfied that there were reasonable grounds to believe that the accused was not guilty of such offense and was not likely to commit any offense while on bail.
• These conditions applied to offenses where the term of imprisonment was more than three years under the PMLA.

2. Supreme Court Intervention: Nikesh Tarachand Shah Case (2017):

Challenge to Section 45:

• The stringent conditions of Section 45 were challenged in the courts. In the landmark case of Nikesh Tarachand Shah v. Union of India (2017), the Supreme Court of India struck down the twin conditions for bail as unconstitutional. The Court held that these conditions violated Articles 14 and 21 of the Constitution, as they were arbitrary and discriminatory.

Impact of the Judgment:

• After the judgment, the twin conditions under Section 45(1) could not be applied, and bail applications in PMLA cases were considered based on general principles of criminal law, making it easier for the accused to secure bail.

3. Amendments Following the Judgment:

2018 Amendment:

In response to the Supreme Court’s ruling, the government amended the PMLA in 2018. The amendment removed the specific reference to the twin conditions for bail under Section 45. However, it added that the offenses under PMLA should be treated as “cognizable and non-bailable,” meaning that the general principles under the Criminal Procedure Code (CrPC) for non-bailable offenses would apply.

4. Current Status of Section 45:

Post-Amendment Section 45:

• After the amendment, Section 45 still plays a significant role in the bail process under the PMLA, but without the stringent conditions that were initially present. The section now reads:
• “Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless—”
• It then refers to the general procedure for bail, without imposing the previously mentioned twin conditions.

5. Implications of Section 45:

Stringency in Bail Decisions:

• Even after the amendments, Section 45 ensures that the offenses under PMLA are treated with gravity, but it aligns with the constitutional mandates ensuring that bail is not unreasonably denied.

Balance between Rights and Crime Prevention:

• The changes to Section 45 reflect an attempt to balance the need to effectively combat money laundering with the fundamental rights of the accused, ensuring that the bail process remains fair and just.