S R Senapati ( Consultant-Author) ( Part -C of series- commentary )- ‘BAIL In PMLA Offence’ -
Why & how difficult in getting Bail once arrested by PML Authority particularly during Investigation/Inquiry ?
I am highlighting particularly one recent case Law of Supreme Court of India which very comprehensively decided terms & conditions of Bail on different facts & circumstances of crime & role of accused person in committing that crime: Satender Kumar Antil vs. C.B.I. - MA No.1849 of 2021 in SLP(Crl.) No.5191 of 2021 dated 11.07.2022. In the said case Hon’ble Supreme Court has strictly emphasized implementation of provisions of Cr.PC particularly Sections 41 & 41A & Sections 436A & 440.
Criminal Procedure Code-Section 437 enunciates details of procedure on application for ‘Regular Bail’ & Section 438 states on ‘Anticipatory Bail’(Bail before arrest is effected during investigation/inquiry on crime & role of said accused person in the said crime).
Bail can be granted to the accused person while in police custody and /or in judicial custody or even after conviction & sentence. Normally, it is somehow difficult to get Bail if arrested during investigation/inquiry of crime & role of accused person in same crime & Grant of Bail during investigation while in police custody and /or in judicial custody largely depend at the discretion of Court considering severity & Complexities of Crime & Role of Accused Person & co-operation & participation of accused person in the said Investigation/Inquiry & possibility of accused person in tampering of evidence( oral-witness & documentary etc.) of said crime.
Under PML Act being a special act , Section 45(1) ( upheld in Vijay Madanlal Choudhary vs. Union Of India decided on 27 July, 2022 by Supreme Court of India in SLP(Criminal) No.4634 of 2014-But Supreme Court on 25 August 2022 issued notice on a review petition in the case Karti P Chidambaram v. Directorate of Enforcement R.P. (Crl.) No. 219/2022, seeking review of the judgment passed in Vijay Madanlal Choudhary v. Union of India SLP (Crl.) No. 4634 of 2014 under PML Act, which is pending ) states two conditions: Unless Public Prosecutor is given reasonable opportunity of being heard & the Ld.Court is satisfied that there is reasonable ground to believe that accused person is not guilty of offence & he is not likely to commit any offence while on Bail.
In absence of any Bail Act made by Legislature and other than exceptions of principles as per certain special Act like PMLA ,However, It is always the Ld. Court to decide the Bail matters on following principles during investigation while in police custody and during trial by the competent Court while in judicial custody :
1.Bail is the Rule , Jail is exception but depending on severity & Complexities of Crime & Role of Accused Person;
2.Whether Accused has/is co-operating & participating in Investigation;
3.Probability of joining Trial process in the competent Court, if on Bail;
4.Probability of repeating crime again, if on Bail;
5.Possibility of violating terms of Bail ,once granted Bail(may result to cancellation of Bail, if necessary) & may evade appearance in Trial / or, in further investigation, if any ;
6.Possibility of tampering/influencing/manipulating of evidence( oral-witness & documentary etc.) by the accused, while on Bail.
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