CASE DETAILS:
| Bench B.R. Gavai J. K.V. Viswanathan J. | Case no. SLP (cri) no. 10778 of 2024 | Acts/law PMLA |
Kalvakuntla Kavithahas been in custody since Marchon Kalvakuntla Kavitha has been in custody since March on charges of corruption and money laundering, which are linked to the Delhi Excise policy scam.
Recently the apex court in Kalvakuntla Kavitha vs. Directorate of enforcement has set aside the order of the High Court wherein a learned single judge refused to grant bail to appellant Kalvakuntla Kavitha. The court did not elaborate on the case’s merits as it was a bail application. The appellant herein is being prosecuted for two cases CBI case and an ED case. On perusal of the record, it has been observed that in the CBI case chargesheet has been filed and in the ED case a complaint has been filed.
The counsel for the appellant herein Advocate Mukul Rohatgi cited the judgment Manish Sisodia vs. Directorate of Education 2024 Scconline SC 1920, both the said case and the present case arises from the same facts, moreover 493 witnesses are to be examined and documents. He further contended that no proceeds of crime have been recovered from Kalvakuntla Kavitha and counsel relied on Section 45 (1) of Prevention of Money-Laundering Act, 2002 (PMLA).
Learned ASG opposed the appeal, and contended that statement recorded under section 50 of PMLA and under section 164 of Crpc will implicate the appellant moreover statement of witnesses will establish that proceeds of the crime has been passed through appellant. It was further asserted that appellant is indulged in influencing the witnesses.
Since in CBI case chargesheet has been filed and in ED case complaint has been filed court concluded in para 10 that the custody of the appellant herein is not necessary. Court also observed that likelihood of conclusion of trail in future is not possible considering the number of witnesses and documents.
This bench emphasized on the well settled principle of law “bail is rule and jail is exception” it is also imperative to note that Article 21 is superior than statutory restrictions.
SECTION 45(1) PMLA:
Relevant portion of the said section is as under:
“Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees, may be released on bail, if the special court so directs:”
This bench has construed the above said provision and observed in para 16 that women can be released on bail without satisfying the twin test requirements. Tough the “women” will not be automatically entitled for bail under the aforesaid proviso in fact the application of the said proviso depends on the facts and circumstances of each case.
In para 17 court construed that if any statute provides special treatment for certain category of accused same should be granted otherwise court denying the same should give the reason as why such benefit should not be granted.
Court has set out the relevant para of learned single judge as under:
…..as benefit of proviso to Section 45 is concerned, when it is the case of applicant herself that she is a well-educated and accomplished woman, who has remained Member of Parliament, Member of Legislative Council, etc., this Court is bound to keep in mind the observations of the Hon'ble Apex Court in case of Saumya Chaurasia (supra)….
In para 68 learned single judge gave finding while denying benefit under section 45 of PMLA Act as under:
68. Thus, Smt. K. Kavitha cannot be equated to a vulnerable woman who may have been misused to commit an offence, which is the class of women for whom the proviso to Section 45 of PMLA has been incorporated, as held by the Hon'ble Apex Court in case of Saumya Chaurasia (supra). Accordingly, this Court is of the considered opinion that Smt. K. Kavitha is not entitled to the benefit of proviso to Section 45 of PMLA.”.
In para 22 of present case court interoperated that learned single judge erroneously observed that section 45 (1) proviso only applicable on “valnurable woman”.
This court held that learned single judge wrongly applied Saumya Chaurasia v. Directorate of Enforcement (2024) 6 SCC 401 wherein court observed that category of persons added in section 45 (1) proviso should be dealt more sympathetically reason being such persons are likely to be more vulnerable and may sometimes be misused for committing such crimes.
Considering the finding of Saumya Chaurasia (supra) this court observed in present case in para 27 that finding of the said case does not mean that section 45(1) proviso only includes “vulnerable women”. Moreover only because women is highly educated that does not mean she is not entitled to the benefit under section 45(1) proviso.
Decision:
Present appeal was allowed thereby bail was granted, this court set aside the finding of learned single judge and appellant was directed to be released on furnishing bail bond.
Complete judgment of KALVAKUNTLA KAVITHA vs. DIRECTORATE OF ENFORCEMENT