§ Section 45, in substance

Cognisable and non-bailable. Offences under the Act are cognisable and non-bailable; the Explanation added in 2019 confirms this notwithstanding anything in the Code.

Twin conditions, s. 45(1). No person accused of an offence under the Act shall be released on bail or on his own bond unless: (i) the Public Prosecutor has been given an opportunity to oppose; and (ii) where he opposes, the court is satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail.

Proviso. A person under sixteen, a woman, a sick or infirm person, or one accused, alone or with others, of laundering less than one crore rupees, may be released on bail if the Special Court so directs.

Additional limitation, s. 45(2). The limitations are in addition to those under the general code or any other law.

First condition

The Public Prosecutor must be heard; a right to be heard, not a veto

Second condition, first limb

Reasonable grounds for believing the accused is not guilty: more than prima facie, less than proof; no finding of innocence is recorded

Second condition, second limb

Reasonable grounds for believing the accused is not likely to commit any offence while on bail: antecedents, conduct, risk of repetition

Trigger

The second condition arises only where the Prosecutor opposes

Source of the standard

Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, on the similar MCOCA provision, followed in PMLA cases

📖 Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, decided 23 November 2017

The Supreme Court struck down Section 45(1) as it then stood, because the twin conditions applied only where the accused was also charged with a Part A scheduled offence punishable with more than three years, a classification it found arbitrary and without nexus to the object of the Act, violating Articles 14 and 21.

The effect of the amendment. The Finance Act, 2018 re-enacted Section 45 so that the twin conditions apply to all offences under the Act, curing the defect, and extended the proviso to cases below one crore rupees.

📖 Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929

The Supreme Court upheld the amended twin conditions, holding that Parliament was competent to re-enact them to cure the defects identified in Nikesh Tarachand Shah, and that they have a reasonable nexus with the purpose of the Act. It held that the conditions apply to anticipatory bail as well, and that Section 436A of the old Code applies to PMLA cases.

📖 P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, decided 4 December 2019

Granting regular bail, the Supreme Court held that the gravity of an economic offence is a relevant factor but not by itself a ground to deny bail; each case turns on its facts, the material, and the risk of tampering or flight. Earlier, in 2019, the Court had declined anticipatory bail to him, observing that economic offences with deep-rooted conspiracies call for caution at the pre-arrest stage.

📖 Manish Sisodia v. Directorate of Enforcement, Supreme Court, decided 9 August 2024

The Supreme Court granted bail after about seventeen months of custody with no prospect of early trial, holding that the right to a speedy trial is part of Article 21, that prolonged incarceration before trial cannot become punishment, and that trial courts and High Courts should not refuse bail by 'playing safe'.

📖 Prem Prakash v. Union of India, Supreme Court, decided 28 August 2024

The Court held that the principle that bail is the rule and jail the exception applies even under the PMLA; Section 45 only imposes conditions and does not reverse the principle. It also held that a Section 50 statement recorded from an accused while in judicial custody in another case of the same agency is not admissible against him.

📖 V. Senthil Balaji v. Deputy Director, Directorate of Enforcement, Supreme Court, decided 26 September 2024

The Court granted bail after more than fifteen months of custody, holding that where trial is not likely to conclude within a reasonable time, Article 21 permits bail notwithstanding Section 45, and that the twin conditions cannot be used to keep an undertrial in custody indefinitely. It relied on Union of India v. K. A. Najeeb, (2021) 3 SCC 713.

Regular bail

After arrest, before the Special Court or High Court; twin conditions apply where the Prosecutor opposes

Anticipatory bail

Available, but the twin conditions apply (Vijay Madanlal); granted sparingly in economic offences

Interim bail

Temporary release on medical, family or other exceptional grounds; in Arvind Kejriwal v. Directorate of Enforcement (2024), interim bail was granted pending a larger-Bench reference

Default bail

Where no complaint is filed within the period allowed under the BNSS provision on remand (sixty days for the ordinary PMLA offence, whose maximum is seven years), the accused has an indefeasible right to bail, and Section 45 does not bar it

Woman

May be released if the Special Court directs; in K. Kavitha v. Directorate of Enforcement (2024), the Supreme Court held the benefit of the proviso must be given effect, and cannot be denied merely because the woman is educated or well placed

Person below sixteen

May be released if the Special Court directs; a child is in any event dealt with under the Juvenile Justice Act

Sick or infirm

May be released if the Special Court directs, on proper medical evidence

Amount below one crore

Where the accused, alone or with others, is accused of laundering less than one crore rupees

Discretion

The proviso says 'may': it relaxes the twin conditions but does not make bail automatic

§ When the statute yields

• Prolonged incarceration. Where trial will not conclude within a reasonable time, the right to speedy trial under Article 21 may justify bail despite Section 45: K. A. Najeeb (2021); Manish Sisodia and Senthil Balaji (2024).

• Constitutional courts. The High Courts and the Supreme Court retain power to grant bail where continued custody would violate Article 21, notwithstanding statutory restrictions.

• Undertrial release. Section 436A of the old Code, now Section 479 of the BNSS, entitles an undertrial who has served half the maximum term to be considered for release.