This photo taken on April 15, 2024 shows BRS leader K. Kavitha after leaving Rouse Avenue Court with the CBI under trial in a money laundering case related to Delhi vehement policy. Supreme Court on Kavitha’s plea on August 27, 2024 released order regarding bail to her.
On Tuesday, August 27, 2024, the Supreme Court granted release from custody to Bharat Rashtra Samithi (BRS) leader K Kavitha regarding various money laundering and corruption cases filed by CBI and ED concerning the Delhi excise policy scam.
Justice B.R. Gavai and Justice K.V. Viswanathan, who constituted a Bench, also expressed dismay at the order of the Delhi High Court which had declined to entertain an application regarding a very rare coupling tolerance of bail provisions in the Prevention of Money Laundering Act 2002, that is extended to women, to Kavitha when she sought bail from the high court in April.
In a recent decision of July 1, the Delhi High Court rejected the request for bail of the BRS leader stating that she is a well-educated woman and hence there is no reason to regard her to be within any of the exceptions. Scarcely a month after, a trial court order in April by Judge Kaveri Baweja reasoned that the specific PMLA provision in question was to apply to clearly ‘well-educated’ and ‘well-placed in society woman’ cannot.
What is the exception?
Section 45 of the PMLA imposes stiff ‘twin conditions’ for seeking the bail in case of money laundering. Roman numerals, i. The accused has to prove that he/she is prima facie innocent of the offence. ii. The prosecution has to convince the judge that even if the person is let out on bail he/she will not commit any offence. These excessive limitations make this provision look draconian in character almost eliminating prospects of securing bail before trial or upon the completion of charge sheet being filed.
Even so, that standard of bail has an important exception. As explained in section 45 (1) of the section, ‘arrest is not necessary in the case of children under sixteen or women or sick or infirm’ – so for them these two conditions are lifted. It sounds like the exemptions that are available for women and children in other criminal law acts – like that under S 437 of the Cr PC 1973.
What did the top Court say?
To begin with, a Bench of Justices B.R. Gavai and k V Viswanathan finally graced that the relief which is granted to the women under the PMLA statute has its foundation in article 15(3) of the Constitution which requires the State to make special provisions for women and children who have been identified as weak as such.
In the impugned order, the High Court reasoned that K. Kavitha is a “well-educated and accomplished woman” with significant achievements in politics and social service. Justice Swarana Kanta Sharma further noted that she has been both a Member of Parliament and a Member of the Legislative Council.
Therefore, the judge emphasized, Mrs. the BRS leader such cannot be compared to a ‘sheltered woman probably used to facilitate an offence’ – the classification of a woman even the PMLA exemption applies to.
Stress was also placed upon the present judgment of the Supreme Court Saumya Chaurasia v. Directorate of Enforcement (2023) in order to support this proposition that in the present day educated and well-placed women could also go into illegal activities while running after businesses.
Nevertheless, Justice B.R. Gavai while passing an order observed that the High Court has, in fact, vis-a-vis the judgement in Saumya Chaurasia, “misapplied” it. He considered the acknowledgment as an aggressive judicial stance and urged the said ruling had in fact encouraged the judges to be “more sensitive and sympathetic” toward the category of vulnerable persons encompassed in the first proviso of section 45 of the PMLA.
Though there was no prescription to the effect that bail be granted in every such case involving the persons in this category, the Bench did make it out that the 2023 ruling lived up to the hallowed principle enunciated by the judges to make fans and practicians alike, ‘apathy is worse than bias’, Read more about such details in your content and more bail whips on those braches, any inner-where depriving one’s liberty is put under a consideration.
“Further, this Court in Saumya Chaurasia does not say that simply because a woman is learned and civilised or is a Member of Parliament or a Member of Legislative Assembly she does not come under or cannot benefit the provisions of the Section 45(1) PMLA,” Justice Gavai clarified.
K. Kavitha has been granted bail by Supreme Court in the cases related to excise policy
What are the legal authorities?
In June of last year, bail was also awarded to 49-year-old Preeti Chandra, wife of Unitech promoter Sanjay Chandra, in a money laundering case pursued by ED, by the Delhi High Court. In this context, the investigating agency had also put forth that she is not a housewife but actively manages several companies and hence does not fulfill the precondition for the bail under the provisions of the PMLA Act.
Justice Jasmeet Singh, while treating such a viewpoint as irrelevant, observed that there is a clear and a permissive statute in regard to discouraged imports – both the PMLA and the Constitution do not have a provision on what should be the educational level of social class of a woman. Even then the jurisdiction of such provisions pushing the vision of ‘within the constitution’ has to be broad.
“The Court asserted however that the Respondent’s submission that there is a valid argument to be made as to what kind of woman is fit to be included in the exclusion to section 45(1) PMLA by inventing an ad-hoc less educated business women, high class women etc within the broader category of ‘woman’ is fraught with misconceptions.”
However, there were certain caveats added – the accused can be granted bail but he/she must not be a flight risk, nor must there be any threat of witness influence or evidence tampering. This bail order has subsequently been affrimed by the Supreme Court in the month of August in the previous last year.
