Section 436A CrPC Setting Cap For Pre-Trial Custody Applicable To PMLA Offences, Says Supreme Court At Hearing

The Supreme Court on Wednesday orally observed that Cr. P. C. section 436A is an independent scheme under the Cr. P. C. dealing with specific situations, which has not been modified by the Prevention of Money Laundering Act, and therefore section 436A will also apply under the PMLA regime by virtue of section 65 of the PMLA.The Court told Solicitor General of India Tushar Mehta that though the aspect of applicability of section 436A (maximum period for which an undertrial prisoner can be detained) under the PMLA has not been urged on the part of the petitioners, the Court considers it essential with a view to balance the interests of the accused and the prosecution and the public interest in general.A bench comprising Justice AM Khanwilkar, Justice Dinesh Maheshwari and Justice CT Ravikumar was hearing a batch of petitions challenging the various provisions of the PMLA.Section 436A provides that where a person has spent in custody as an undertrial half the period of maximum sentence for the offence, he should be ordinarily released on bail, subject to the objections by the Prosecutor.The provision reads as :Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties. Section 65 of the PMLA provides that the provisions of the Cr. P. C. shall apply, in so far as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act.Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties;Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that lawOn the question of applicability of the default bail or statutory bail provision of the Cr. P. C. to the PMLA which was posed by the bench to the SG on Tuesday, the SG on Wednesday replied, "Money laundering usually takes place cross-border, not just within the bounds of the country. This is the first distinction between money-laundering and TADA, MCOCA etc. The second is that there are certain tax haven countries where it is easy to park your illicit money and there are certain countries which give you a kind of a shelter by giving you citizenship with which India does not have any reciprocal treaty for extradition. Third, because of this very international nature of this offence, the accused, especially the main accused, has his own infrastructure, wherewithal in that respective country where he parks his money or where he is ensured stay . Fourth, this is a premeditated offence. It never takes place in the heat of the moment. So while committing an offence, I would ensure where my money will go, how it will be hidden, in which country, who will be helping me, what is my infrastructure when I want to escape and become a fugitive, and I will have everything ready for me. These factors have to be borne in mind, which are these offence-specific factors, Unlike MCOCA, which is an organised crime act, with gangs functioning in Maharashtra, this will have trans-border implications. Keeping that distinction in mind, kindly come to PMLA section 45 (which imposes twin conditions on the grant of bail in offences under the Act, notwithstanding the Cr. P. C.)".Justice A. M. Khanwilkar observed, "Those considerations would be important for bail. But this is statutory bail or default bail, as they say."The SG replied, "Section 45 starts with notwithstanding anything contained in the code of criminal procedure. So my first legal submission is that this ousts section 436A. Now come to subsection (2) of 45 [The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Cr. P. C. or any other law for the time being in force on granting of bail]. Wherever the legislature wanted to incorporate the provisions of Cr. P. C., it has specifically done so in 45."Justice Khanwilkar noted, "subsection two applies to limitations in 437 and 439 (of Cr. P. C.). It is not debarring the possibility of taking recourse to remedy under 436A, which has come by way of amendment. And there is good reason for which the provision has been introduced. The experience is that trials are not proceeding, trials remain pending, Investigation reports are not filed in time, all those are...

Section 436A CrPC Setting Cap For Pre-Trial Custody Applicable To PMLA Offences, Says Supreme Court At Hearing

Mehal Jain

Tags