The Supreme Court Thursday set aside a Patna High Court order granting bail to an accused in an Enforcement Directorate case and ordered him to surrender. Calling the High Court order “casual and cavalier”, Justice Bela M Trivedi held that it had erred in granting bail to Kanhaiya Prasad, son of JD (U) MLC Radha Charan Sah and arrested by the ED in a case of alleged illegal sand mining in Bihar, since the stringent conditions to secure bail under the Prevention of Money Laundering Act (PMLA) had not been met. Allowing the ED plea for cancellation of bail, Justice Trivedi said, “The respondent (the accused) shall surrender before the Special Court within one week from today.” The High Court granted bail to Prasad in May last year on the ground that he had gone through “testimonial compulsion”, that the stringent provisions of bail under PMLA were not intended at “absolute restraint” on grant of bail, and that the “discretion” lay with the court. It also relied on Supreme Court judgments which said “jail was an exception and bail the rule”. The accused was subsequently released from jail, while the ED challenged the High Court order. In recent times, several accused of money laundering by the ED have been granted bail by the Supreme Court on grounds of long stint in jail, delay in trial, procedural lapses and the general principle of bail being the rule. Justice Trivedi, in her order, held that the Patna High Court had granted bail to Prasad “without considering the rigours of Section 45… on absolutely extraneous and irrelevant considerations”. Section 45 of the PMLA lays down that while considering bail, the court will give an opportunity to the ED prosecutor to oppose bail and grant the plea only if it believes the offence of money laundering is not made out. “There is no finding whatsoever recorded in the impugned order that there were reasonable grounds for believing that the respondent was not guilty of the alleged offence under the Act and that he was not likely to commit any offence while on bail. Non-compliance of the mandatory requirement of Section 45 has, on the face of it, made the impugned order unsustainable and untenable in the eye of law,” Justice Trivedi’s order stated. The judgment has relied on the July 2022 order in Vijay Madanlal Choudhary vs Union of India to underline that fulfilling the conditions laid down in Section 45 are “mandatory” for grant of bail. In Vijay Madanlal Choudhary, a bench headed by Justice A M Khanwilkar had dismissed concerns raised on the vast powers of the ED and possibility of misuse of the exacting standard for grant of bail in money laundering cases. While certain observations of this order are under reconsideration of the Supreme Court, the court, in some of its recent judgements, has also been lenient in granting bail under PMLA. Three days ago, the apex court granted bail to SP leader Azam Khan and his son in a case of alleged money laundering. The bench of Justices M M Sundresh and Rajesh Bindal set aside the Allahabad High Court order which had rejected their bail plea. “Taking into consideration the facts and circumstances of the case which include the period of incarceration undergone by the appellants, and that the chargesheet has already been filed, we are inclined to set aside the impugned order and grant bail to the appellants,” the bench said in its February 10 order. On August 9, 2024, while granting bail to former Delhi Deputy Chief Minister Manish Sisodia, the Supreme Court held that the stringent “twin conditions” to grant bail can be “relaxed” if the accused has undergone a long period of incarceration. Considering his right to a speedy trial, the court noted there was not even the remotest possibility of trial being concluded in the future. This order was relied upon by BRS leader K Kavitha and AAP’s Vijay Nair to secure bail. On August 28, 2024, the Supreme Court granted bail to Jharkhand Chief Minister Hemant Soren’s aide Prem Prakash in an ED case. It reiterated here that “bail is the rule, jail is the exception”.
