Appeal against the dismissal of bail
2. These appeals challenge the judgment and order dated 01.07.2024 passed by the learned Single Judge of the High Court of Delhi at New Delhi in Bail Application Nos.1675 and 1739 of 2024, vide which the learned Single Judge has refused to grant bail to the appellant herein.
3. Though the matter has been argued at length by Shri Mukul Rohatgi, learned Senior Counsel along with Shri D.S. Naidu and Shri Vikram Chaudhri, learned Senior Counsel appearing on behalf of the appellant, and Shri S.V. Raju, learned Additional Solicitor General of India (for short, ‘ASG’) for the respondent(s), at length; learned ASG has suggested that this Court should avoid elaborate discussions on the merits, inasmuch as any observations may prejudice the rights of either of the parties at the trial.
Custody is not required since Final report and complaint were filed
10. On perusal of the record, we find that in CBI case charge-sheet has been filed and in ED case complaint has been filed. As such, the custody of the appellant herein is not necessary for the purpose of investigation
Since 493 witnesses and documents are 50000 pages the likelihood of trial concluded in near future is impossible
11. The appellant has been behind the bars for the last five months. As observed by us in the case of Manish Sisodia (Manish Sisodia v. Directorate of Enforcement – 2024 SCC OnLine SC 1920 : 2024 INSC 595), taking into consideration that there are about 493 witnesses to be examined and the documents to be considered are in the range of about 50,000 pages, the likelihood of the trial being concluded in near future is impossible.
Bail is the rule and refusal is an exception is well-established principle
13. We had also reiterated the well-established principle that “bail is the rule and refusal is an exception”. We had further observed that the fundamental right of liberty provided under Article 21 of the Constitution is superior to the statutory restrictions.
Section 45(1) PMLA: special treatment for woman
14. We are further of the view that the proviso to Section 45(1) of the PMLA would entitle a woman for special treatment while her prayer for bail is being considered.
15. The said proviso to Section 45(1) of the PMLA reads thus:-
“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 coaccused of money-laundering a sum of less than one crore rupees, may be released on bail, if the special court so directs:”
A woman may not be automatically entitled to benefit of section 45 PMLA it depends upon the facts and circumstances of each case
16. A perusal of the above proviso would thus reveal that the proviso permits certain category of accused including woman to be released on bail, without the twin requirement under Section 45 of the PMLA to be satisfied. No doubt that, as argued by the learned ASG, in a given case the accused even if a woman may not be automatically entitled to benefit of the said proviso and it would all depend upon the facts and circumstances of each case.
When denying a benefit under section 45 PMLA court is required to give specific reasons for denial
17. However, when a statute specifically provides a special treatment for a certain category of accused, while denying such a benefit, the Court will be required to give specific reasons as to why such a benefit is to be denied.
Since accused is MP or MLA court should not give any special treatment
19. Day in and day out it is argued before us on behalf of the prosecution that merely because an accused has a special status in terms of he/she being a Member of Parliament or a Member of Legislative Assembly or a Minister or a Chief Minister, etc., they should not be given a special treatment and should be treated equally as any other accused.
20. However, the learned Single Judge in the present case, while denying the benefit of the proviso to Section 45(1) of the PMLA, comes to a “heartening conclusion” that the appellant is highly qualified and a well-accomplished person. The learned Single Judge further observed that the appellant has made significant contributions to politics and social work. The learned Single Judge further observed that while deciding her bail application, the Court may appreciate her accomplishment, however, it cannot lose sight of the serious allegations levelled by the prosecution and the evidence collected during the course of the investigation and presented before the Court.
Hon’ble High Court misapplied the ratio of Apex court judgment Saumya Chaurasia v. Directorate of Enforcement for vulnerable woman
22. We find that the learned Single Judge erroneously observed that the proviso to Section 45(1) of the PMLA is applicable only to a “vulnerable woman”.
23. We further find that the learned Single Judge totally misapplied the ratio laid down by this Court in the case of Saumya Chaurasia v. Directorate of Enforcement [(2024) 6 SCC 401:2023 INSC 1073].
24. A perusal of the judgment of this Court in the case of Saumya Chaurasia (supra) would show that this Court has observed that the Courts need to be more sensitive and sympathetic towards the category of persons included in the first proviso to Section 45 of the PMLA and similar provisions in the other Acts. The Court observes that the persons of tender age and women who are likely to be more vulnerable may sometimes be misused by unscrupulous elements and made scapegoats for committing such crime.
27. This Court, in the carefully couched paragraph extracted above used the phrase “persons of tender age and woman who are likely to be more vulnerable, may sometimes be misused by the unscrupulous elements”. This is vastly different from saying that the proviso to Section 45(1) of the PMLA applies only to “vulnerable woman”. Further, this Court in the case of Saumya Chaurasia (supra) does not say that merely because a woman is highly educated or sophisticated or a Member of Parliament or a Member of Legislative Assembly, she is not entitled to the benefit of the proviso to Section 45(1) of the PMLA.
28. We, therefore, find that the learned Single Judge of the High Court has totally misdirected herself while denying the benefit of the proviso to Section 45(1) of the PMLA.
Appeal allowed and bail granted
Party
Kalvakuntla Kavitha …Appellant(S) versus Directorate of Enforcement …Respondent(S) – Criminal Appeal No. of 2024 [Arising Out of SLP (Criminal) No. 10778 of 2024] With Criminal Appeal No. of 2024 [Arising Out of SLP (Criminal) No. 10785 Of 2024] – 2024 INSC 632 – AUGUST 27, 2024.
Kalvakuntla Kavitha vs. Directorate of Enforcement 355242024_2024-08-27
