SC Leads Us Through The Mist Surrounding The Grant Of Bail: Keep Reading To Know More!

• On 7 October,2021 the Hon’ble SC issued guidelines on the grant of bail to those accused who are not arrested during investigation on the chargesheet being filed. The court clarified that the twin conditions imposed on the grant of bail by section 45 of the Prevention of Money Laundering Act have been struck down by the court in the case of Nikesh Tarachand Shah vs. Union of India and Another (2018) SCC
• One of the concerns raised during the hearing in question in the present case of Satender Kumar Antil vs. CBI was that the Lower Courts while hearing bail matters interpret them in such a way that the twin conditions laid down in section 45 of PMLA are given effect. The bench repeatedly said that the purpose of their October order was to make the grant of bail easier.
• Expressing dismay at the strictness adopted by the lower Courts while granting bail, the Court said “We have been converted into a bail court. In nearly 40% of the cases we are called upon to grant anticipatory bail… the cases which should have been finished at the TC level or at least the HC level, it seems that somewhere the signal has gone wrong. Some rectification is required…”
• While expressing concern over the fact that jail has now become a norm, while the investigation is suspended, the Court remarked-

“In economic offences, the idea is to recover the amount.. it cannot be that everyone is kept behind bars…. economic offences are also crimes against society but it should not go to a stage where everyone is kept behind bars, and the investigation does not complete..”

• The Court further held that “if during the course of the investigation, there is no cause to arrest the accused, merely because the chargesheet is filed does not ipso-facto become a ground of arrest”.
• It was also pointed out that not granting bail is resulting in an overcrowding in jails. The jails of our country are already heavily burdened while lacking in several basic amenities ranging from the lack of sleeping places to a lack of medical facilities. This is not made easier by the fact that the Courts are heavily inclined to not grant bail to the accused.
• In the case of Aman Preet Singh vs. CBI, the Hon’ble Court had held that “If a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because chargesheet has been filed would be contrary to the governing principles for the grant of bail”.
• Lastly, in the case of P. Chidambaram vs. Directorate of Enforcement (2019) the Hon’ble Supreme Court had reiterated the triple test for the grant of bail which reads as follows-

a) That the accused is not a “flight risk”.
b) That it is not likely that the accused will tamper with the evidence.
c) That it is not likely that the accused would influence the witnesses.

• In the absence of the above stated conditions, it is not reasonable for the accused to languish in jail for an extended period of time with no hope of rejoining the society any time soon. It is a heavy blow to his fundamental right to live with dignity.

And now, a question for our readers:

When has Section 45 of the Prevention of Money Laundering Act been amended?