Once prayer for anticipatory bail is made in connection with offence under PMLA Act, rigors of Sec. 45 must get triggered, says Top Court

Read Order: THE ASST. DIRECTOR ENFORCEMENT DIRECTORATE vs. DR. V.C. MOHAN

Tulip Kanth

New Delhi, January 7, 2022: In a case pertaining to the Prevention of Money Laundering Act, the Supreme Court has 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.

This appeal took exception to the judgment passed by the High Court of Telangana at Hyderabad in a Criminal Petition, whereby the High Court granted anticipatory bail to the respondent in connection with offence concerning the PMLA Act.

The Division Bench of Justice A.M. Khanwilkar and Justice C.T. Ravikumar opined that the High Court considered the matter as if it was dealing with prayer for anticipatory bail in connection with ordinary offence under the Indian Penal Code.

According to the Bench, the offence under the PMLA Act is dependent on the predicate offence which would be under ordinary law, including provisions of Indian Penal Code. That does not mean that while considering the prayer for grant of anticipatory bail in connection with PMLA offence, the mandate of Section 45 of the PMLA Act would not come into play, added the Court.

Referring to the judgment of the Supreme Court in Nikesh Tarachand Shah vs. Union of India & Anr., the Bench stated that the observations made therein have been misunderstood by the respondent. 

“It is one thing to say that Section 45 of the PMLA Act 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. As aforesaid, the High Court has not touched upon this aspect at all”, said the Bench.

On the argument of the respondent that this objection was never taken before the High Court as it was not reflected from the impugned judgment, the Top Court noted that it was not a question of taking objection but the duty of court to examine the jurisdictional facts including the mandate of Section 45 of the PMLA Act, which must be kept in mind. 

Thus, the Division Bench set aside the impugned judgment and order and relegated the parties before the High Court for reconsideration of the Criminal Petition afresh for grant of anticipatory bail filed under Section 438 of the Code of Criminal Procedure in connection with stated PMLA offence.