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Section 45 of the PMLA UPSC NOTE

 Supreme Court verdict on the Prevention of Money Laundering Act

  • The Supreme Court gave a fillip to the right to personal liberty by holding that a person summoned by a designated special court under the Prevention of Money Laundering Act (PMLA), is presumed to be not in custody and need not apply for bail under the draconian conditions posed by the anti-money laundering law.

  • The judgment limits the power of arrest by the Directorate of Enforcement (ED) after a special court takes cognisance of a case.

  • The Bench said the ED would have to separately apply for the custody of a person once he or she appears in court. 

  • The Central agency would have to show specific grounds that necessitated custodial interrogation

  • However, the special court can direct the accused to furnish bonds in terms of Section 88 of the Code of Criminal Procedure

  • An order accepting bond under Section 88 does not amount to grant of bail and hence the twin conditions of Section 45 of the PMLA are not applicable to it

  • The twin conditions of bail under Section 45 of the PMLA pose stringent thresholds for an accused

  • For one, the person has to prove in court that he or she is prima facie innocent of the offence

  • Secondly, the accused should be able to convince the judge he would not commit any offence while on bail

  • The burden of proof is entirely on the incarcerated accused, who would be often handicapped to fight the might of the state.

  • The twin conditions make it almost impossible for an accused to get bail in the PMLA.

  • The judgment said an accused, who appears in the special court, could be exempted from personal appearance in the future

  • If an accused does not appear after a summons is served, the special court could issue a bailable warrant followed by a non-bailable one.

  • In its verdict, the top court said the ED would have to separately apply f

  • or the custody of a person who appears in court

  • The agency would have to show specific grounds that necessitated custody.

  • If the ED wants to conduct a further investigation concerning the same offence, it may arrest a person not shown as an accused in the complaint filed under Section 44(1)(b) of the PMLA, provided the requirements of Section 19 (procedures of arrest) under the Act were fulfilled

  • The question of law in the case was whether an accused can apply for bail under the regular provisions of the Code of Criminal Procedure

  • If so, whether such a bail plea would also have to satisfy the twin conditions imposed by Section 45 of the PMLA.

Section 45 in The Prevention of Money-Laundering Act, 2002

  • Offences to be cognisable and non-bailable

  • [1] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless

    • (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

  • (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:

  • Provided that a person, who is under the age of sixteen years or is a woman or is sick or infirm [or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs:

  • Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by

    • (i) the Director; or

    • (ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government.

  • (1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed;

  • [2] The limitation on granting of bail specified in of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.


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Learnerz IAS | Concept oriented UPSC Classes in Malayalam: Section 45 of the PMLA UPSC NOTE
Section 45 of the PMLA UPSC NOTE
Learnerz IAS | Concept oriented UPSC Classes in Malayalam
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