The Punjab and Haryana High Court has held that the first proviso to Section 45(1) of the Prevention of Money Laundering Act, 2002 exempts all women, as a class, from the rigours of the "twin conditions" for bail, and that any judicial attempt to exclude educated, professionally placed or socially influential women from the benefit of the proviso would amount to impermissible judicial legislation. [2026 LiveLaw (PH) 266]

Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA) makes all offenses under the act cognizable and non-bailable. It sets strict "twin conditions" that an accused must clear to secure bail.

i) The Public Prosecutor has been given an opportunity to oppose the application for such release; and

ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:

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

Justice Sumeet Goel, while granting regular bail to a woman accused of laundering proceeds of a ₹25 crore transnational cyber-fraud call centre operation, observed:

"Since, the legislature chose not to qualify the term 'woman', any attempt by the Court to carve out sub-categories, such as excluding educated, and professionally employed, etc. women from the purview of the proviso, would tantamount to impermissible judicial legislation and statutory supplanting."

The Court, however, drew a careful line between the applicability of the proviso and the exercise of discretion under it, holding that while education, official standing and socio-economic influence are irrelevant to whether the twin conditions stand displaced, those very factors remain live considerations when the bail plea is decided on merits.

The Court highlighted, "Pertinently, the statutory command in the proviso to Section 45(1) of the PMLA, is categoric: it exempts all women as a class from the stringent operation of the "twin conditions" without drawing any statutory distinction based on education, professional standing, social status, or societal exposure."

Violation Of Article 15(3)

"Since, the legislature chose not to qualify the term "woman", any attempt by the Court to carve out sub-categories, such as excluding educated, and professionally employed, etc. women from the purview of the proviso, would tantamount to impermissible judicial legislation and statutory supplanting. Ergo, as far as the initial applicability of the proviso is concerned, creating sub-classifications within the protected group runs contrary to the constitutional ethos of Article 15(3) and violates the plain-meaning rule of statutory interpretation, as enshrined in the maxim absoluta sententia expositor non indigent, i.e. where the language is plain, it requires no construction," it added.

The Court clarified further that, "a vital legal distinction must be drawn between the applicability of the proviso and the ultimate exercise of judicial discretion under it. While factors such as education, high official standing, socio-economic influence, and the specific role played in the offence are irrelevant (in case of a woman) for deciding whether the “twin conditions” stand displaced, they nevertheless be taken into account, where relevant, while adjudicating the bail plea on merits."

It elucidated that, "it goes without saying that it is neither pragmatic nor feasible to lay any universal exhaustive yardstick or inexorable set of guidelines for adjudication of this aspect as every case has its own unique factual conspectus, which has to be taken into account by the Court which is in seisin of the matter he legislature has deliberately used the term "woman" without qualification or exception. Applying the plain-meaning rule, the proviso applies universally to all women as a class. Consequently, judicial creation of sub-classifications; whether based on education, professional standing, high official capacity, or socio-economic status; is impermissible as it would amount to statutory supplanting."

The Judicial Discretion

The Court said that, "intentional statutory shift from the mandatory imperative "shall" in the main body of Section 45(1) of PMLA to the permissive auxiliary expression "may be" in the first proviso thereof demonstrates that the dispensation is an enabling, discretionary provision rather than an imperative command. The proviso lifts the statutory bar of the twin conditions to re-vest judicial discretion in the court; it does not confer an absolute, automatic, unconditional or indefeasible right to bail solely on the basis of gender."

Justice Goel opined that the, legal ambit of first proviso to Section 45(1) of PMLA is strictly confined to exempting a woman-accused seeking regular bail, from meeting the burden of the “twin conditions”. Lifting this statutory prohibition does not obliterate, supersede, or override the broader principles governing bail jurisprudence. "Once the “twin conditions” stand displaced, the general principles for grant/refusal of bail remain fully operative and must be satisfied independently."

The petitioner, Surabhi, sought regular bail registered by the Directorate of Enforcement under the PMLA.

According to the ED, the petitioner, in connivance with co-accused was the real owner and controller of M/s Certiszep Innovations (OPC) Private Limited, a company allegedly used to run an organised transnational cyber-fraud call centre, targeting citizens of the United States.

Proceeds of crime of approximately ₹25 crore were said to have been generated between June 2024 and August 2025 and received in India through hawala channels, with the petitioner alleged to have routed and layered the funds through her own accounts, those of family members and third parties, before integrating them into movable and immovable assets. The ED also alleged payment of ₹8 lakh per month to a person in a law enforcement agency for protection of the call centre.

The agency further alleged that the petitioner remained absconding from 25.08.2025 to 15.12.2025, used fake identity documents at hotels during that period, admitted to having no legitimate source of income, and that employees' statements under Section 50 PMLA contradicted her denial of any association with the call centre.

Appearing for the petitioner, Senior Advocate Vikram Chaudhri inter alia argued that the petitioner, a 29-year-old woman, was not required to meet the rigours of Section 45; that her implication rested substantially on the disclosure statement of a co-accused harbouring a personal grudge, without independent corroboration; that no rent agreement, partnership deed, bank mandate or other document connected her with the entity; that she had cooperated with the ED prior to arrest.

Additional Solicitor General Satyapal Jain, appearing for the ED, contended that being a woman does not vest an indefeasible right to bail in an offence of this nature, and pointed to the petitioner's active role, flight risk and capacity to influence witnesses.

After analysing the submissions, Justice Goel began from first principles, observing that personal liberty is "not a mere statutory concession conferred by state benevolence, but an inalienable, natural right intrinsic to human existence", and that pre-trial detention must never degenerate into punitive incarceration.

Tracing the gender-conscious protection in the first proviso to Section 437(1) CrPC, now preserved in the first proviso to Section 480(1) BNSS to the constitutional architecture of protective discrimination under Article 15(3), the Court held that such affirmative bail provisions are not an exception to Article 14 but a manifestation of its complementary mandate of equal protection, calibrated to socio-institutional realities.

On the statutory language, the Court noted that the main body of Section 45(1) employs the mandatory "shall" for the twin conditions, while the proviso deliberately substitutes it with the permissive "may be" — a shift confirming that the proviso confers an enabling discretion rather than an imperative command.

Applying the settled rule that a proviso must be construed strictly in relation to the principal enactment, the Court held that since the main body of Section 45(1) deals exclusively with the twin conditions, the proviso operates solely to exempt women, minors and the sick or infirm from that burden, and "cannot be extended beyond its statutory office to grant any broader immunity or create an absolute, automatic entitlement to bail."

The Court relied on Supreme Court cases including Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280 and Satender Kumar Antil v. CBI, (2022) 10 SCC 51 on the CrPC proviso, and on Saumya Chaurasia v. Directorate of Enforcement, (2024), Directorate of Enforcement v. Preeti Chandra, 2023 , Shashi Bala v. Directorate of Enforcement (Crl. Appeal No. 212 of 2025, decided on 15.01.2025) under the PMLA.

On merits, the Court noted that the petitioner had been arrested on 16.12.2025 and, as per the custody certificate dated 06.08.2026, had undergone over seven months' incarceration and that the prosecution complaint had been filed within six weeks of arrest, yet the trial remained at the pre-cognizance stage; and that the prosecution proposed to examine 73 witnesses and rely on 111 documents running into 6,728 pages, making conclusion of trial in the near future unforeseeable.

The Court further observed that the material relied upon was substantially documentary and electronic and already in the agency's custody, that no further custodial interrogation appeared necessary, and that the ED had brought forth no list or details of vulnerable witnesses, nor anything tangible to suggest flight risk or witness tampering.

Holding that the allegations, though yet to be established by cogent evidence at trial, could not by themselves justify indefinite incarceration, the Court granted bail on conditions including deposit of passport, furnishing of a demand draft/FDR/bank guarantee of ₹20 lakh, filing of a monthly affidavit of non-involvement in any offence, and intimation of her cellphone number to the Investigating Officer.

Title: Mrs. Surabhi @ Surbhi Duhan v. Directorate of Enforcement, through its Assistant Director, Chandigarh Zonal Office-1, Chandigarh

Appearances: Mr. Vikram Chaudhri, Senior Advocate with Ms. Hargun Sandhu, Advocate for the petitioner;

Mr. Satyapal Jain, Additional Solicitor General of India (through VC) with Ms. Meghna Malik, Senior Panel Counsel and Ms. Ritika, Advocate along with Mr. Vikash, Assistant Director, ED.

Click here to read order