Supreme Court: PMLA Accused Who Has Spent Half Of Maximum Sentence As Undertial Can Be Given Bail Under S.436A CrPC

In the facts of this case, the appellant will

complete 3½ years of incarceration on 26th May, 2024.

Thus, he will complete half of the prescribed sentence.

In this case, obviously the trial has not started, as the

charge has not been framed. This Court has held that

Section 436A of the Code of Criminal Procedure, 1973 (for

short "CRPC") will apply even to a case under the PMLA.

But the Court can still deny the relief owing to the

ground such as where the trial was delayed at the

instance of the accused. As stated earlier, here there is

no occasion for the appellant to cause the delay in

trial, as even charge has not been framed. Moreover,

there is no other circumstance brought on record which

will compel us to deny the benefit of Section 436A of the

CRPC to the appellant. {Para 3}

4. The learned Additional Solicitor General submitted

that the power under Section 436A of the CRPC has to be

exercised by the Court of first instance.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.2601-2602 OF 2024

AJAY AJIT PETER KERKAR  VS. DIRECTORATE OF ENFORCEMENT & ANR.

Dated: May 16, 2024.

Leave granted.

1. Heard the learned senior counsel appearing for the

appellant and the learned counsel Additional Solicitor

General appearing for respondent No.1.

2. The appellant has been arrested in connection with

an offence punishable under Section 4 of the Prevention

of Money Laundering Act, 2002 (for short "the PMLA").

Paragraph 416 of a decision of this Court in the case

Vijay Madanlal Choudhary & Ors. Vs. Union of India & Ors.

 2022 SCC OnLine SC 929 reads thus:

"416. The Union of India also recognized the

right to speedy trial and access to justice as

fundamental right in their written submissions

and, thus, submitted that in a limited situation

right of bail can be granted in case of violation

of Article 21 of the Constitution. Further, it

is to be noted that the Section 436A of the 1973

Code was inserted after the enactment of the 2002

Act. Thus, it would not be appropriate to deny

the relief of Section 436A of the 1973 Code which

is a wholesome provision beneficial to a person

accused under the 2002 Act. However, Section

436A of the 1973 Code, does not provide for an

absolute right of bail as in the case of default

bail under Section 167 of the 1973 Code. For, in

the fact situation of a case, the Court may still

deny the relief owing to ground, such as where

the trial was delayed at the instance of accused

himself."

(underline supplied)

3. In the facts of this case, the appellant will

complete 3½ years of incarceration on 26th May, 2024.

Thus, he will complete half of the prescribed sentence.

In this case, obviously the trial has not started, as the

charge has not been framed. This Court has held that

Section 436A of the Code of Criminal Procedure, 1973 (for

short "CRPC") will apply even to a case under the PMLA.

But the Court can still deny the relief owing to the

ground such as where the trial was delayed at the

instance of the accused. As stated earlier, here there is

no occasion for the appellant to cause the delay in

trial, as even charge has not been framed. Moreover,

there is no other circumstance brought on record which

will compel us to deny the benefit of Section 436A of the

CRPC to the appellant.

4. The learned Additional Solicitor General submitted

that the power under Section 436A of the CRPC has to be

exercised by the Court of first instance.

5. In the facts of the case, we find that there is no

prospect of even the trial commencing, as the charge has

not been framed. In these facts, we find that the

appellant will be entitled to be enlarged on bail under

section 436A of the CRPC on 27th May, 2024. Hence, there

is no need to have multiplicity of proceedings.

6. Hence, we allow these appeals and direct that the

appellant shall be enlarged on bail under Section 436A of

the CRPC on 27th May, 2024.

7. For that purpose, the appellant shall be

immediately produced before the Special Court to enable

the appellant to complete the bail formalities such as

furnishing bail bonds etc. The Special Court will pass a

formal order fixing the terms and conditions for grant of

bail. The bail formalities shall be completed by 26th

May, 2024.

..........................J.

(ABHAY S.OKA)

..........................J.

(UJJAL BHUYAN)

NEW DELHI;

May 16, 2024.

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