2022 (6) TMI 46 - KERALA HIGH COURT

The normal rule is that  “bail is the rule and jail is the exception.”

Money Laundering - proceeds of crime - scheduled offence - alleged money scam - twin conditions of grant of bail, section 45(1) of the PMLA satisfied or not.

The law in regard to grant or refusal of bail is well-settled.

The considerations which normally weigh with the court in granting bail in non-bailable offences are:-

• the nature and seriousness of the offence;

• the character of the evidence;

• circumstances which are peculiar to the accused;

• a reasonable possibility of the presence of the accused not being secured at the trial;

• reasonable apprehension of witnesses being tampered with;

• the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.

Although "bail is the rule and jail is an exception" is well established in our criminal jurisprudence, the gravity of the offence is an important aspect which is required to be kept in view by the Court before releasing a person on bail.

Socio-economic offences constitute a class apart and need to be visited with a different approach in the matter of bail.

The reasonable ground mentioned in Section 45(1)(ii) of PMLA connotes substantial probable causes for believing that the accused is not guilty of the offence charged.

Twin conditions for granting bail are – (i). that the Public Prosecutor shall be allowed to oppose the application for release, and (ii). where the Public Prosecutor opposes application, the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and if released on bail is not likely to commit the same or similar offences if released on bail.

The investigation is going on and the same is at a crucial stage. Undoubtedly, the investigating agency may require further time to collect all the materials, particularly, the alleged nexus of the petitioner with the crime. The accused No. 1 (Sri. Nishad), the kingpin of the scam is absconding. The hon'ble judge made it clear that the decision in the particular bail application of the present accused is nowhere an adjudication on the merits of the dispute as opined that different yardstick may be required at different stages of the investigation.

The esteemed readers may know that different bail applications involve different considerations/yardstick for decision but the twin condition test although overruled still holds considerable gravity in decision making process of the hon'ble court/s.

---

Full Text:

2022 (6) TMI 46 - KERALA HIGH COURT

Bail presumption in money laundering cases requires reasonable grounds to believe accused is not guilty before release. Money laundering bail applications balance the presumption that bail is the rule against offence gravity and statutory constraints. Courts consider nature and seriousness, evidence quality, accused's circumstances, risk of non appearance and witness tampering, and public interest. The twin condition requires prosecutorial opposition and that, if opposed, there be reasonable grounds to believe the accused is not guilty and will not reoffend; investigative stage, missing materials and absconding principal suspects materially affect this assessment.