January 13, 2022 In Uncategorized

APEX COURT RULES THAT PMLA GETS TRIGGERRED WHILE CONSIDERING ANTICIPATORY BAIL PLEA IN A PMLA OFFENCE

A Two Judge Bench of the Hon’ble Supreme Court of India comprising of Justices A.M. Khanwilkar and C.T. Ravikumar passed an Order dated 04-01-2022 in the case of The Asst. Director Enforcement Directorate v. DR. V.C. Mohan {Criminal Appeal No.21 OF 2022 (Arising from the SLP(Crl.) No. 8441 of 2021 } and observed that “once the prayer for anticipatory bail is made in connection with offence under the PMLA Act, the underlying principles and rigors of Section 45 of the PMLA Act must get triggered — although the application is under Section 438 of Code of Criminal Procedure.”

In the present matter, the Respondent was charged for an offence concerning the Prevention of Money Laundering Act (PMLA Act). Vide Order dated 25-06-2021, the High Court of Telangana at Hyderabad (High Court) granted anticipatory bail to the Respondent in Criminal Petition No. 4134 of 2021.

Impugning the Judgment and Order dated 25-06-2021, an Appeal was filed in the Hon’ble Supreme Court of India by the State. After perusing the facts of the case and taking into consideration the arguments advanced by the Parties, the Apex Court observed that “Indeed, the offence under the PMLA Act is dependent on the predicate offence which would be under ordinary law, including provisions of Indian Penal Code. The mandate of Section 45 of the PMLA Act would come into play while considering the prayer for grant of anticipatory bail in connection with PMLA offence.”

While placing reliance on the case of Nikesh Tarachand Shah vs. Union of India & Anr. (2018) 11 SCC 1 (referred by the Respondent), the Bench noted that

“The observations made therein have been misunderstood by the respondent. It is one thing to say that Section 45 of the PMLA Act applies to offences under the ordinary law would not get attracted but once the prayer for anticipatory bail is made in connection with offence under the PMLA Act, the underlying principles and rigors of Section 45 of the PMLA Act must get triggered — although the application is under Section 438 of Code of Criminal Procedure.”

Therefore, while setting aside the Impugned Order dated 25-06-2021, the Supreme Court referred the Parties to the High Court for reconsideration of the Petition seeking a fresh anticipatory bail.

 

Sushila Ram Varma

Chief Consultant and Editor

The Indian Lawyer & Allied Services

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