Prevention of Money Laundering Act, 2002
The Twin Conditions for Bail under Section 45
Bail under the PMLA is harder to obtain than under the ordinary law because of Section 45(1), which imposes two conditions on the release of an accused. The first gives the Public Prosecutor the opportunity to oppose. The second, where the Prosecutor opposes, requires the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence on bail. The Supreme Court upheld the conditions in 2022, but has since recognised important ways around them. This note examines each condition and the exceptions.
The two gates on the road to bail under Section 45, and the ways around them
1. The Provision
§ Section 45(1), in substance Notwithstanding anything in the Code, 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. Proviso. A person who is under sixteen, or is a woman, or is sick or infirm, or is accused, alone or with co-accused, of money laundering a sum of less than one crore rupees, may be released on bail if the Special Court so directs. History. The twin conditions as originally framed were struck down in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1; re-enacted in 2018 to apply to all PMLA offences; and upheld in Vijay Madanlal Choudhary (2022). |
2. The First Condition: Opportunity to the Public Prosecutor
§ A hearing right, not a veto • What it requires. The Public Prosecutor must be heard before bail is granted. • What it does not do. It does not allow the Prosecutor to block bail by objecting; it guarantees the prosecution's participation. • Its trigger for the second. The second condition applies only where the Prosecutor opposes. Where there is no opposition, the court decides on the general principles of bail, still applying its mind to the material. |
3. The Second Condition: Reasonable Grounds for Believing the Accused Not Guilty
§ The heart of Section 45 Two limbs, both required. Reasonable grounds for believing that the accused is not guilty, and that he is not likely to commit any offence while on bail. Meaning of reasonable grounds. More than a prima facie case, but less than proof: grounds that would lead a reasonable person, on a broad view of the material, to believe the accused is not guilty. No finding of innocence. In Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, on the similar provision in the Maharashtra Control of Organised Crime Act, the Supreme Court held that the court does not record a finding of not guilty; it forms a view on the material for the limited purpose of bail. This approach has been followed under the PMLA. The foundational facts. In practice, the court asks whether a live scheduled offence exists, whether the property is really proceeds of crime, and whether the material links the accused to it; weaknesses here satisfy the condition. |
4. The Ways around the Gates
Route | The position |
|---|---|
The proviso | Persons under sixteen, women, the sick or infirm, and those accused of laundering less than one crore rupees may be released if the Special Court so directs; in K. Kavitha v. Directorate of Enforcement (2024), the Supreme Court held the benefit for women must be given effect |
Delay and Article 21 | Prolonged incarceration without a realistic prospect of early trial may justify bail despite the twin conditions: Union of India v. K. A. Najeeb, (2021) 3 SCC 713, applied in Manish Sisodia v. Directorate of Enforcement and V. Senthil Balaji v. Deputy Director (2024) |
Bail as the rule | Prem Prakash v. Union of India (2024): even under the PMLA, bail is the rule and jail the exception, subject to the statutory conditions |
Not arrested before cognizance | Tarsem Lal v. Directorate of Enforcement (2024): an accused not arrested during investigation who appears on summons after cognizance is not in custody, and the twin conditions do not govern his bond |
Undertrial release | Section 436A of the old Code, now s. 479 BNSS, applies: release after half the maximum term as an undertrial (Vijay Madanlal Choudhary, 2022) |
5. Frequently Asked Questions
What are the twin conditions for bail under the PMLA?
First, the Public Prosecutor must be given an opportunity to oppose; second, where the Prosecutor opposes, the court must be satisfied there are reasonable grounds for believing the accused is not guilty and not likely to commit an offence on bail.
Does the court have to find the accused innocent?
No. It forms a view on the material, for bail only, that there are reasonable grounds for believing him not guilty.
Who is exempt from the twin conditions?
Under the proviso, persons under sixteen, women, the sick or infirm, and those accused of laundering less than one crore rupees may be released if the Special Court directs.
Can delay alone justify bail?
Prolonged incarceration without a prospect of early trial can justify bail under Article 21, as the Supreme Court held in Manish Sisodia and Senthil Balaji (2024).