Section 436A CrPC Akin To Statutory Bail ; Can Be Invoked By Accused Arrested Under PMLA : Supreme Court

The Supreme Court observed that the beneficial provision of Section 436A of Criminal Procedure Code could be invoked by the accused arrested for offence punishable under the Prevention of Money Laundering Act, 2002 Act.Section 436A CrPC needs to be construed as a statutory bail provision and akin to Section 167 CrPC, the bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar observed in a judgment in which it upheld the the Constitutional validity of "twin conditions" for bail under amended Section 45 PMLA.Very recently, another Supreme Court bench [in Satender Kumar Antil vs Central Bureau Of Investigation | 2022 LiveLaw (SC) 577] had observed that Section 436A CrPC would apply to the Special Acts also in the absence of any specific provision. In the present case, though the issue qua applicability of Section 436A is not seen raised by the petitioners, the bench noticed it while considering the issue whether the rigors of twin conditions in Section 45 PMLA will apply in respect of anticipatory bail filed under Section 438 CrPC. The court answered this issue in the affirmative. Whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 must come into play, it held.In this context, it noticed that an exception may have to be carved out to the strict compliance of the twin conditions in the form of Section 436A CrPC. Referring to the provisions, and the objective behind it, the court made these observations:Not appropriate to deny the relief of Section 436A CrPC To PMLA AccusedThe 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.Recognition of the constitutional right of the accused regarding speedy trial The court further observed that Section 436A is comparable with the statutory bail provision or, so to say, the default bail, to be granted in terms of Section 167 of the 1973 Code consequent to failure of the investigating agency to file the chargesheet within the statutory period and, in the context of the 2002 Act, complaint within the specified period after arrest of the person concerned. In the case of Section 167 of the 1973 Code, an indefeasible right is triggered in favour of the accused the moment the investigating agency commits default in filing the chargesheet/complaint within the statutory period. The provision in the form of Section 436A of the 1973 Code, as has now come into being is in recognition of the constitutional right of the accused regarding speedy trial under Article 21 of the Constitution. For, it is a sanguine hope of every accused, who is in custody in particular, that he/she should be tried expeditiously — so as to uphold the tenets of speedy justice. If the trial cannot proceed even after the accused has undergone one-half of the maximum period of imprisonment provided by law, there is no reason to deny him this lesser relief of considering his prayer for release on bail or bond, as the case may be, with appropriate conditions, including to secure his/her presence during the trial.Constitutional obligation of the State to ensure that trials are concluded expeditiouslyThe bench rejected the Solicitor General submission that this interpretation can impact the objectives of the PMLA and is in the nature of super imposition of Section 436A CrPC over Section 45 PMLA. The bench made these observations:It is the constitutional obligation of the State to ensure that trials are concluded expeditiously and at least within a reasonable time where strict bail provisions apply. If a person is detained for a period extending up to one-half of the maximum period of imprisonment specified by law and is still facing trial, it is nothing short of failure of the State in upholding the constitutional rights of the citizens, including person accused of an offence.Section 436A of the 1973 Code, is a wholesome beneficial provision, which is for effectuating the right of speedy trial guaranteed by Article 21 of the Constitution and which merely specifies the outer limits within which the trial is...

Section 436A CrPC Akin To Statutory Bail ; Can Be Invoked By Accused Arrested Under PMLA : Supreme Court

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