Offenders involved in the crime of money laundering and the linked proceeds of crime are treated as a "separate class" from ordinary criminals and courts should not treat bail pleas of such persons casually, the Supreme Court ruled on Wednesday as it cancelled bail given to a man by the Patna high court.
The apex court said providing bail relief to such accused by passing "cryptic" orders without considering the seriousness of the crime cannot be vindicated.
A Division bench of Justices Bela M Trivedi and Prasanna B Varale was hearing an appeal filed by the Enforcement Directorate (ED) against the HC's order giving bail to a Bihar-based man Kanhaiya Prasad who was arrested and chargesheeted by the federal agency in an alleged illegal sand mining linked money laundering case.
It also asked the accused to surrender before the designated special Prevention of Money Laundering Act (PMLA) court "within one week from today."
The apex court, while setting aside the HC order, said the order (passed by the High Court) was "in teeth of Section 45 of PMLA and also in the teeth of the settled legal position" and hence sent the matter to the HC for "fresh consideration".
The SC bench said it was "well-settled" that the offence of money laundering was not an "ordinary" offence.
"The PMLA has been enacted to deal with the subject of money laundering activities having transnational impact on financial systems including sovereignty and integrity of the countries."
"The offence of money laundering has been regarded as an aggravated form of crime world over and the offenders involved in the activity connected with the proceeds of crime are treated as a separate class from ordinary criminals," the SC said.
Any casual or cursory approach, it said, by the courts while considering the bail application of the offender involved in the offence of money laundering and granting him bail by passing cryptic orders without considering the seriousness of the crime and without considering the rigours of section 45, cannot be vindicated.
"Accordingly, the impugned order is set aside, and the matter is remanded to the high court for consideration afresh with the request to the Chief Justice to place the matter before the Bench other than the Bench which had passed the impugned order," the apex court said.
It clarified that it was not expressing any opinion on the "merits" of the case while delivering the said order.
The division bench said the HC "utterly failed" to consider the mandatory requirements of Section 45 and to record its satisfaction whether reasonable ground existed for believing that the respondent (Kanhaiya Kumar) was not guilty of the alleged offence and that he was not likely to commit any offence while on bail.
It said, "merely because the prosecution complaint (chargesheet) had been filed and the cognizance was taken by the court that itself would not be the ground or consideration to release the respondent on bail, when the mandatory requirements as contemplated in Section 45 have not been complied with."
The apex court went on to reject the plea of the defence that its client was not an accused in the predicate offence saying the crime of money laundering was an "independent" offence when it came to the process or activity connected with the proceeds of crime.
It said the HC order granting bail to the accused was "unsustainable" and "untenable" in the eye of the law as that court granted relief to him on "absolutely extraneous and irrelevant considerations" without considering the rigours of Section 45.
The twin conditions to be satisfied by the court before granting bail to a money laundering accused include the provision of giving a chance to the prosecutor (ED) to oppose the bail application of the accused and the satisfaction that the accused to be granted bail is not guilty of the offence and not liable to commit any offence while on bail.
The SC said there was "no finding whatsoever" in the HC order on these two conditions that are mandatory before granting the bail.
The ED appealed before the SC, saying the HC had "thoroughly misinterpreted and misread the ratio of the judgement of the three-judge bench in Vijay Madanlal Choudhary and Ors. Vs. Union of India & Ors..."
The SC said it "hardly needs to be stated that the objective of the PMLA is to prevent money laundering which has posed a serious threat not only to the financial systems of the country but also to its integrity and sovereignty."
The offence of money laundering is a very "serious" offence which is committed by an individual with a "deliberate" desire and the motive to enhance his gains, disregarding the interest of the nation and the society as a whole, and such offence by no stretch of imagination can be regarded as an offence of trivial nature, it said.
The stringent provisions have been made in the Act to combat the menace of money laundering, the apex court said.
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