Do PMLA accused have to meet twin test for bail under Section 45 if summoned after trial court cognisance? Supreme Court to examine

The Supreme Court is set to consider whether an accused who is not arrested during the period of probe under Prevention of Money Laundering Act (PMLA), would also be required to meet the law’s stringent conditions of bail if arrayed as an accused after trial court takes cognisance of the Enforcement Directorate (ED) complaint and summons such person [Tarsem Lal vs Directorate of Enforcement]. .A bench of Justices Abhay S Oka and Ujjal Bhuyan stated the matter needs to be heard at length after the ED counsel contended that the accused in a money-laundering case would otherwise be easily able to get bail.Section 45 of the PMLA requires the Court to provide the Public Prosecutor an opportunity to oppose the bail application of the accused. It also states that the Court can release the accused only if satisfied that there are reasonable grounds for believing that he is not guilty of the offence and that he is not likely to commit any offence while on bail.These conditions make it difficulty for a money laundering accused to get bail. The top court also raised the question of whether the accused is required to apply for bail under regular provisions of Code of Criminal Procedure (CrPC) if he appears before special court pursuant to the summons issued by the special court under PMLA. The bench thus framed the following question:"The question is, if pursuant to the summons issued by the special court, the accused appears before the special court whether he is required to apply for bail in terms of Section 437 of the Code of Criminal Procedure, 1973. If the answer to the said issue is in 2 affirmative, the other question is whether such a bail plea will be governed by the twin conditions imposed by Section 45 of the PMLA Act," the order stated..The top court will also consider whether such money laundering accused can be arrested by ED under Section 19 of the PMLA after cognizance of the complaint has been taken by the special court under PMLA."Prima facie, it appears to us that once cognizance of a complaint filed under Section 44 is taken by the special court under the Prevention of Money Laundering Act, 2002 (for short "the PMLA Act"), the power to arrest vesting under Section 19 of the PMLA Act cannot be exercised," the bench noted in its order..The legal question before the apex court arose in relation to a Punjab and Haryana High Court order denying the pre-arrest bail to several accused in a money laundering case connected to an alleged land scam involving revenue officials.The top court in January had granted the accused interim protection, and sought the response of the ED in the matter..When the matter came up for hearing on March 1, Justice Oka remarked that the bench was worried about the accused in such cases, who will have to meet the stringent twin test even after the cognisance stage.The judge pointed to a recent order by Justice Bela M Trivedi granting bail to a money-laundering accused whom the CBI court had denied bail.The bench will taken up the matter on April 9..Senior Advocate Sidharth Luthra with advocates Harshit Sethi, Nikilesh Ramachandran, Mansi Tripathi, Manmeet Singh Bindra, Nikhil Jain, Divya Jain, Rhail Mahajan, Shubham Seth, Anuj Panwar, Kamal Verma, and Lovekesh Aggarwal appeared for the accused.Additional Solicitor General SV Raju with advocates Zoheb Hussain, Annam Venkatesh, Arkaj Kumar and Mukesh Kumar Maroria appeared for the ED..In November 2017, the top court had struck down Section 45(1) of the PMLA to the extent it imposed the two additional conditions for grant of bail to money-laundering accused.The provision was revived later by the Centre by making certain amendments to PMLA. Pertinently, the 2017 decision of the top court was overruled in July 2022 by a bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar in the case of Vijay Madanlal Choudhary vs. Union of India.The 2022 ruling invited vehement criticism and led to several review applications being filed.Retired Supreme Court judge Justice Rohinton Fali Nariman had in March last year termed the decision very unfortunate.Former Chief Justice of India (CJI) UU Lalit had also endorsed the same view and opined that in Indian criminal jurisprudence, the principle is not guilty, until proven to be guilty.The Supreme Court in August 2022, issued notice to the Central government in review plea filed by Congress leader Karti Chidambaram challenging the Vijay Madanlal ruling..[Read order]