Orrisa High Court: In a bail application under Section 439 of the Code of Criminal Procedure, 1973 (‘CrPC’) for offence under Section 3 of the Prevention of Money Laundering Act, 2002 (‘PMLA’), G. Satapathy*, J. granted bail to the accused considering the pretrial detention of the accused for nearly a year, the uncertainty regarding the commencement of the trial and regarding her status of a woman which attracts section 45 of the PMLA.
Factual Matrix
In this matter, two First Information Reports, (‘FIR’) were registered against the accused person, firstly for offences under Sections 384, 385, 387, 506 and 120-B of the Penal Code, 1860 (‘IPC’) and Section 67 of the Information Technology Act, (‘IT Act’). The second FIR was registered for the offences punishable under Sections 341, 328, 324, 354-C, 370, 386, 387, 388, 389, 419, 420, 465, 506 and 120-B of the IPC and Sections 66-E and 67 of the IT Act.
The Enforcement Directorate, (‘ED’) claimed the alleged offences to be scheduled offences under Section 2(1)(y) of the PMLA as illegal income of Crores of Rupees was extorted by way of honey trapping rich and influential people and making their nude videos and threatening them as well as blackmailing them of lodging false police cases and getting their nude videos viral on social media from the said crimes as defined under Section 2(1)(u) of the PMLA. Thus, the ED instituted a complaint for commission of offences under Section 3 of the PMLA which is punishable under Section 4.
The accused person sought bail on mainly two grounds, firstly, non-compliance of Section 19 of the PMLA while arresting the accused; secondly, the accused being a woman can be directed to go on bail in accordance with the proviso attached to Section 45 of the PMLA.
Analysis
Non-Compliance of Section 19 of the PMLA
The Court noted that the ED took the accused in remand for 7 days starting on 06-12-2022 for the purpose of investigation by way of the order of the Special Court and the formal arrest was made only on 13-12-2022 in which all the provisions of Section 19 of the PMLA were followed. The Court said that the sequence of events clearly indicated that the accused was taken into judicial custody on 05-12-2022 and immediately thereafter, on the same day she was given into the custody of ED and thereafter, she was formally arrested on 13-12-2022, and was produced before the Special Court. Placing its reliance on the produced documents, the Court noted that the communication regarding the arrest was made to the accused orally, as well as in writing with a copy of arrest memo and the grounds of arrest were also informed. The Court also said that the accused had also acknowledged the said documents by appending her signature. However, the Court noted that there was no document to indicate the basis on which the accused was taken into custody 7 days before the formal arrest. Besides that, the accused was again given in the custody of ED for another 6 days. The Court stated that “when liberty of a person is dearest to him/her, it should not be interfered with lightly or casually and the agency taking a person accused of an offence on remand has to satisfy the requirement of law scrupulously.” Further the Court said as there was no prima facie material in possession of the ED as required by Section 19(1) and the accused was not produced before the authority concerned within 24 hours as required by Section 19(3), hence, the custody was not in accordance with law. However, the Court found the ED had complied the mandate of Section 19(1) of PMLA belatedly on 13-12-2022 i.e., the date of formal arrest.
Whether the accused can claim the benefit of Proviso to Section 45(1) of PMLA being a woman?
The Court perused Section 45(1) of the PMLA, which carves out relaxation for children under the age of sixteen, women or sick or infirm persons, on the discretion of the Court to grant bail. The Court referred to Enforcement Directorate v. Preeti Chandra, 2023 SCC OnLine SC 930, wherein, it was said that the proviso to Section 45 of the PMLA confers a discretion on the Court to grant bail, where the accused is a woman.
However, on considering the facts of the matter at hand, in light of the proviso to Section 45 of the PMLA, the Court said that the benefit of the provision should be extended to person in deserving cases. Hence, the Court exercised this discretion not merely on the fact that the accused was a woman, but for the other reason that there might be a delay in the trial of the case due to the inability of the ED to apprehend the co-accused in respect to the accused’s detention as an under-trial prisoner for nearly 1 year. The Court also pointed towards the uncertainty of the commencement of the trial how much time would be required for the completion. In this regard, the Court referred to Tarun Kumar v. Enforcement Directorate, 2023 SCC OnLine SC 1486 wherein it was held that “when the detention of the accused is continued by Court, the Courts are expected to conclude the trial within a reasonable time, further ensuring the right of this speedy trial guaranteed by Article 21 of the Constitution.” Therefore, the Court considered that the accused was deserving of the benefit of the proviso to Section 45(1) of the PMLA.
Decision
The Court considered it appropriate to secure the attendance of the accused, as a condition for bail, apart from the tripod test which is required to be satisfied by the accused for grant of bail. The Court said that the tripod test needs to be satisfied by the accused, which consists of flight risk, tampering of evidence and influencing of witnesses. Further, the Court said that the flight risk, in the present case can be averted by directing the accused to surrender her passport and since the complaint has been filed there is little risk of tampering of evidence and influencing witnesses can be curbed by imposing appropriate conditions.
Therefore, the Court granted bail on the vital aspect of pre-trial detention of the accused for nearly 1 year, the uncertainty in the execution of non bailable arrest warrant against the co- accused adversely delaying the commencement and completion of the trial, and the status of the accused as a woman which confers the Court the power to grant bail by the virtue of the proviso of Section 45, if it deems fit.
The bail application of the accused was allowed and may be released on furnishing bail bonds of Rs. 2,00,000/-.The accused was to be released on bail on basis of the following conditions, that the accused:
-
shall not commit any offence while on bail, influence the persons concerned with the case and tamper the evidence.
-
shall appear before the Court on every date of posting without fail, unless there is a sufficient cause not to.
-
shall deposit her Passport till the conclusion of the trial, unless otherwise allowed.
-
shall inform the Court and the ED about her residential address, mobile number(s), email etc. and shall not switch off her mobile phone or change its number without informing the Court.
-
if she misuses the liberty of the bail, to secure her presence, a proclamation under Section 82 of the CrPC may be issued and if the accused still fails to appear then the Court may initiate proceedings under Section 174-A of the IPC.
-
shall appear before ED as and when required.
[Archana Nag v. Directorate of Enforcement, (ED), 2023 SCC OnLine Ori 6518, Decided on 04-12-2023]
*Judgment Authored by: Justice G. Satapathy
Advocates who appeared in this case :
Counsel for the Petitioner: Advocate J. Pal
Counsel for the Prosecution: Advocate G. Agarwal
Buy Code of Criminal Procedure, 1973 HERE
Buy Penal Code, 1860 HERE
