Judicial Discourse
- The Supreme Court of India ("Supreme Court") in Kalvakuntla Kavitha vs. ED1 granted bail to an accused in the case of the ED relating to the Delhi Excise Policy Scam, setting aside an order of the Delhi High Court ("Delhi HC").2 The Supreme Court held that since proviso to Section 45(1) of the PMLA specifically provides for special treatment for a certain category of accused, namely women, hence, while denying such a benefit, the court will be required to give specific reasons for denial of such benefit. It further set aside the interpretation of the Delhi HC that such proviso was only applicable to 'vulnerable women'. The Supreme Court reiterated the principle that prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial.
- The Supreme Court in Frank Vitus vs. Narcotics Control Bureau3 granted bail to an accused in a case registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS"), holding that imposition of any bail condition which enables the police/investigating agency to track every movement of the accused by using any technology or otherwise would violate the fundamental right to privacy of the accused guaranteed under Article 21 of the Constitution of India. The bail condition of the accused having to drop a pin on Google Maps was set aside as illegal, and upon hearing Google LLC on technical aspects, such condition was also found to be redundant. The Supreme Court further set aside a bail condition that required the accused (a foreigner) to produce a certificate from the concerned embassy/high commission assuring that the accused will not leave the country and will appear before the trial court. The Supreme Court held that grant of such a certificate is beyond the control of the accused, who should not be denied bail if otherwise entitled, nor can a bail condition be imposed which is impossible for the accused to comply with.
- The Supreme Court in Nikhil vs. State of Maharashtra4 held that for suspending a sentence of an accused pending appeal, courts cannot impose a condition of depositing 50% of the compensation imposed under Section 357 of the Code of Criminal Procedure, 1973 ("CrPC"). The compensation had been directed to be paid after such accused was found guilty of criminal breach of trust.
- Various High Courts have held that any fresh proceedings after
July 1, 2024 would have to be filed/instituted under the Bharatiya
Nagarik Suraksha Sanhita, 2023 ("BNSS")
and not the repealed CrPC, in view of Section 531 of BNSS. Only
proceedings under the CrPC which were 'pending' or ongoing
as on July 1, 2024, would continue under the CrPC. In particular,
it has been clarified that:
- even if an FIR was registered under the CrPC prior to July 1, 2024, the petition for quashing of such FIR, if filed after July 1, 2024, must be filed under the BNSS (Punjab & Haryana High Court5, Delhi HC,6);
- if an FIR was registered under the CrPC prior to July 1, 2024, then the investigation and trial will be conducted as per the CrPC (Rajasthan High Court7);
- even if an application seeking anticipatory bail under the CrPC has been disposed of, if the subsequent application for anticipatory bail is filed after July 1, 2024, such subsequent application will be filed under the BNSS, and not the CrPC. Further, even though Section 482 of the BNSS no longer provides for an 'interim order' of anticipatory bail as Section 438 of the CrPC used to, the power to grant such interim relief is inherent in the High Court and Sessions courts (Bombay High Court8).
- The Supreme Court in Dhanraj Aswani vs. Amar S. Mulchandani and Anr9 held that when an accused is in custody in relation to one offence, his arrest or custody may still be sought subsequently for another offence, and therefore, the accused had the right to seek anticipatory bail for such apprehension of subsequent arrest. The clarification is important since multiple investigating agencies seek arrest, custody and interrogation in cases involving the PMLA and other scheduled offences.
- The Supreme Court in Abhishek Banerjee and Anr. vs. Directorate of Enforcement10 held that summons under Section 50 of the PMLA would not be bound by the procedure and limitations provided for summons under Section 160 of the CrPC, since the PMLA was overriding legislation and Section 160 of the CrPC was inconsistent with Section 50 of the PMLA in several ways.
- The Supreme Court in Prem Prakash vs. Union of India through ED11 held that even though a statement made by an accused under Section 50 of the PMLA while in the custody of ED officers is admissible in evidence, an incriminating statement made by such accused in relation to a different ED case would be inadmissible. The court reasoned that it cannot be ruled out that such an accused was in an environment of coercion. The bench also applied Section 25 of the Indian Evidence Act, 1872, which bars confessions made to police officers from being read in evidence against the accused, in the limited manner permitted by the court's judgment in Vijay Madanlal Choudhary and Ors. vs. Union of India and Ors12.
- The Supreme Court in Senthil Balaji vs. the Deputy Director, ED13 has held that stringent twin conditions for bail in statutes such as the PMLA, the NDPS Act and the Unlawful Activities (Prevention) Act, 1967 are inconsistent with inordinate delay in conclusion of the trial. While granting bail to Balaji in the PMLA case, the court observed that the trials for both the scheduled offence and the offence under PMLA could not possibly conclude in a reasonable time.
- The Karnataka High Court in Tavaragi Rajashekhar Shiva Prasad vs. State of Karnataka14 has held that when the police issue a notice summoning a person to appear (under Section 41-A of the CrPC or Section 35 of the BNSS), it is necessary for such notice to state the crime number, offence alleged, purpose of summoning and such notice should be accompanied by a copy of the FIR. Failing this requirement, the summoned person is not obliged to appear, and no coercive action can be taken for such non-appearance.
- The Allahabad High Court in Parthas Textiles vs. State of U.P.15 held that when a firm is accused of a criminal offence and its partner is not implicated as an accused, then under Section 63 of the CrPC, summons to such accused firm cannot be executed by way of service to such partner. However, under the expanded provision for summons in Section 65 of the BNSS, such service was valid.
- The Delhi HC in Adnan Nisar vs. ED16 has held that if an offence committed in a foreign state corresponds to any scheduled offence of the PMLA, and the proceeds of such crime committed in the foreign state have travelled to India, then such offence can be considered a predicate offence, and action initiated under the PMLA. Such action may include arrest, investigation and filing of complaint before the Special Court by the ED, even if the request received from the foreign state under the mutual legal assistance treaty ("MLAT") is only to obtain evidence.
Footnotes
1.. 2024 SCC OnLine SC 2269
2. Kalvakuntla Kavitha vs. CBI, 2024 SCC OnLine Del 4459
3. (2024) 8 SCC 415
4. SLP(Crl.) No. 10302/2023 decided on July 11, 2024
5. Abhishek Jain vs. State (U.T. of Chandigarh), 2024 SCC OnLine P&H 9874
6. Prince vs. State (NCT of Delhi), 2024 SCC OnLine Del 4909
7. Krishan Joshi vs. State of Rajasthan, 2024 SCC OnLine Raj 2042
8. Chowgule & Co. (P) Ltd. vs. State of Goa, 2024 SCC OnLine Bom 2501
9. Criminal Appeal No. 2501/2024 decided on September 9, 2024
10. Criminal Appeal No. 2221-2222 of 2023 decided on September 9, 2024
11. SLP (Crl.) No. 5416/2024 decided on August 28, 2024
12. 2022 SCC OnLine SC 929
13. Criminal Appeal No. 4011 of 2024 decided on September 26, 2024
14. 2024 SCC OnLine Kar 67
15. 2024 SCC OnLine All 4585
16. Bail Applicaion No. 3056/2023 decided on September 17, 2024
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