Patiala House Court (New Delhi): In a bail application plea under Section 439 of the Code of Criminal Procedure, 1973 (‘CrPC’) read with Section 45 of the Prevention of Money Laundering Act, 2002 (‘PMLA’) filed by Bollywood actress Jacqueline Fernandez, Additional Sessions Judge Shailendra Malik, has granted her bail.
Bail was sought on the grounds that during investigation Jacqueline remained available with the investigating agency a sand when called upon, and the agency never arrested her during the investigation. Further, her case falls within the first proviso to Section 45(1) of PMLA, being woman. It was also stated that there was no sufficient evidence with the agency against Jacqueline of being guilty of the offence of money laundering and she satisfies the twin conditions provided by Section 45 PMLA.
It was stated that the main accused Sukesh Chandrashekhar and his associates exorted amount of Rs. 200 crores from the complainant, however nowhere in evidence was it proved that Jacqueline was aware either regarding the complaint or that the alleged gifts given to her were out of the proceeds of crime.
Enforcement Directorate(‘ED’) has opposed the application by stating that Jacqueline is involved in economic offences, which are class apart offences and need to be examined differently at the time of consideration of bail. Further, she did not satisfy the twin conditions of Section 45 PMLA, as she knew Sukesh Chandrashekhar and was taking lavish gifts and money for herself and her relatives.
The Court took note of Court on its own motion v. CBI, 2004 SCC OnLine Del 53, wherein it was held that the Court must grant bail to the accused who has not been arrested during investigation by the agency, and of Court on its Own Motion v. State, 2018 SCC OnLine Del 12306, wherein it was held that Metropolitan Magistrate cannot even examine the discretion of Investigating Officer for not arresting the accused during investigation.
However, in the context of complaint filed under Section 3 of PMLA, the Court viewed that, even if Jacqueline has not been arrested during investigation of ED, still while seeking the bail, she was required to fulfill the requirements of twin conditions provided under Section 45 PMLA, which were upheld in the judgment of Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929.
Further, the Court viewed that the expression “accused involved in money laundering of less than one crore” was added to the proviso of Section 45 only to create an additional category of those people which can be exempted from satisfying the rigors of twin conditions of Section 45. Thus, Jacqueline being a woman having not been arrested by the ED is entitled for the said exemption. However, this does not mean that a woman or other categories provided under the said proviso, will get bail as a matter of right in every money laundering case and they must have to fulfill the conditions in terms of Section 439 CrPC.
The Court, without expressing much on the merits of the matter, said that that it is yet to be examined if there was knowledge, intention or connection of Jacqueline in taking those gifts from the proceeds of the crime. Thus, granted her bail.
[Enforcement Directorate v. Sukash Chandrashekhar, 2022 SCC OnLine Dis Crt (Del) 50, decided on 15-11-2022]
*Apoorva Goel, Editorial Assistant has reported this brief.