While delivering its landmark judgment on a very significant legal point having certainly quite far reaching implications pertaining to the long time spent wrongly by undertrials in custody, the Supreme Court in a remarkable, robust, rational and recent judgment titled V Senthil Balaji vs The Deputy Director in Criminal Appeal No. 4011 of 2024 (Arising out of Special Leave Petition (Crl.) No. 3986 of 2024) and cited in Neutral Citation No.= 2024 INSC 739 and so also in 2024 LiveLaw (SC) 750 that was pronounced as recently as on September 26, 2024 in the exercise of its criminal appellate jurisdiction has held that a case of clean acquittal where the accused had spent long years under custody as an undertrial may give rise to a claim for compensation. I very strongly feel that the clean acquittal of an accused after the time spent in long undertrial custody must definitely give rise to claim for compensation! There should be no may creating doubt and giving unfettered discretionary powers to Judges who may decide as per his or her discretion!
No doubt, clean acquittal of an accused must definitely be hugely compensated so that the Government ensures strictly that no one is ever detained irrationally in jail for a long time without being even tried which goes against the very spirit of democracy and cannot be ever justified under any circumstances! When we have already spent 78 years of independence and are nearing 100 years this is the least that must be done on a war footing! There has to be zero tolerance for prolonging undertrial in jail without being even tried! Only then can we have the right to call ourselves truly democratic in the real sense!
It must be definitely asked: Why do we see posts of Judges lying hugely vacant both in lower courts and so also in the higher courts? Why do we never see any such vacancy in posts involving our politicians? Why should even an accused be made to spend a huge time most unfairly as an undertrial notwithstanding that Article 21 of Constitution guarantees to every citizen as fundamental right the right to life and personal liberty?
It must also be asked: Why can’t Centre ensure proper mechanism to tackle it on a war footing? How can Centre be ever exonerated for its role in the piling up of huge pendency of cases? Of course, it is an undeniable and so also an unpalatable fact that Centre itself is the biggest litigator and why can’t it stop litigating on trivial issues due to which pendency rate goes up hugely? It is for Centre to ponder and reform itself because it has been elected to serve the people and not rule over people like the colonial Britishers!
It is however good to see that the Supreme Court at least observed that some day, the Constitutional Courts will have to address this peculiar situation. It was also most sagaciously underscored by the top court that a clean case of acquittal do not include cases where the witnesses turned hostile or faulty investigation. We need to note that the Apex Court made these key observations in the context of its decision pertaining to long incarceration as an undertrial should be considered as a ground for grant of bail even in cases under special statutes like the Prevention of Money Laundering Act.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Abhay S Oka for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Augustine George Masih sets the ball in motion by first and foremost putting forth in para 2 that:
This appeal takes exception to the judgment and order dated 28th February 2024 passed by a learned Single Judge of the High Court of Judicature at Madras by which a bail application preferred by the appellant under Section 439 of the Code of Criminal Procedure, 1973 has been rejected. The bail application was filed in connection with an alleged offence under Section 3 of the Prevention of Money Laundering Act, 2002 (for short, ‘the PMLA’), which is punishable under Section 4 of the PMLA.
To put things in perspective, the Bench envisages in para 3 stating that, Between 2011 and 2016, the appellant was holding the post of Transport Minister in the Government of Tamil Nadu. Broadly, the allegation against the appellant is that while discharging his duties as a Minister, in connivance with his personal assistant and his brother, he collected large amounts by promising job opportunities to several persons in various positions in the Transport Department.
This led to the registering of three First Information Reports against the appellant and others. The said First Information Reports are FIR no. 441 of 2015 dated 29th October 2015 (CC Nos. 22 and 24 of 2021), FIR No. 298 of 2017 registered on 9th September 2017 (CC No. 19 of 2020) and FIR no. 344 dated 13th August 2018 (CC No. 25 of 2020). In the first FIR, six charge sheets have been filed. More than 2000 accused have been named in the charge sheets. 550 witnesses have been named. In the case of the second FIR, there are 14 accused named in the chargesheet. In connection with this FIR, 24 witnesses have been cited. In the third FIR, 24 accused have been named in the chargesheet and 50 prosecution witnesses have been cited.
The offences alleged in the aforementioned crimes are mainly under Section 120B, 419, 420, 467 and 471 of the Indian Penal Code and Sections 7, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Section 34 of the Indian Penal Code has been invoked. These offences are scheduled offences within the meaning of Section 2(y) of the PMLA. Therefore, relying on the final reports filed in aforementioned scheduled offences, for an offence of money laundering under Section 3 of the PMLA punishable under Section 4, the Enforcement Directorate (ED) registered an Enforcement Case Information Report (for short ECIR) bearing ECIR No. MDSZO/21/2021 on 29th July 2021.
As it turned out, the Bench enunciates in para 4 that:
The appellant was arrested on 14th June 2023 in connection with the said ECIR and was remanded to judicial custody. A complaint was filed for the offence under Section 3 of the PMLA Act, which is punishable under Section 4, on 12th August 2023. The appellant is the only accused named in the complaint. Cognizance has been taken based on the complaint by the Special Court under the PMLA. The scheduled offence cases have been transferred to the learned Assistant Sessions Judge, Additional Special Court for Trial of Criminal Cases related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu (Special MPMLA Court), Chennai.
Most forthrightly, the Bench mandates in para 25 propounding that:
Considering the gravity of the offences in such statutes, expeditious disposal of trials for the crimes under these statutes is contemplated. Moreover, such statutes contain provisions laying down higher threshold for the grant of bail. The expeditious disposal of the trial is also warranted considering the higher threshold set for the grant of bail. Hence, the requirement of expeditious disposal of cases must be read into these statutes. Inordinate delay in the conclusion of the trial and the higher threshold for the grant of bail cannot go together. It is a well-settled principle of our criminal jurisprudence that bail is the rule, and jail is the exception. These stringent provisions regarding the grant of bail, such as Section 45(1)(iii) of the PMLA, cannot become a tool which can be used to incarcerate the accused without trial for an unreasonably long time.
It cannot be lost sight of that the Bench makes it a point to point out in para 26 that:
There are a series of decisions of this Court starting from the decision in the case of K.A. Najeeb (Union of India v. K.A. Najeeb (2021) 3 SCC 713), which hold that such stringent provisions for the grant of bail do not take away the power of Constitutional Courts to grant bail on the grounds of violation of Part III of the Constitution of India. We have already referred to paragraph 17 of the said decision, which lays down that the rigours of such provision will melt down where there is no likelihood of trial being completed in a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. One of the reasons is that if, because of such provisions, incarceration of an undertrial accused is continued for an unreasonably long time, the provisions may be exposed to the vice of being violative of Article 21 of the Constitution of India.
Most significantly, the Bench encapsulates in para 27 what constitutes the cornerstone of this notable judgment postulating that:
Under the Statutes like PMLA, the minimum sentence is three years, and the maximum is seven years. The minimum sentence is higher when the scheduled offence is under the NDPS Act. When the trial of the complaint under PMLA is likely to prolong beyond reasonable limits, the Constitutional Courts will have to consider exercising their powers to grant bail. The reason is that Section 45(1)(ii) does not confer power on the State to detain an accused for an unreasonably long time, especially when there is no possibility of trial concluding within a reasonable time.
What a reasonable time is will depend on the provisions under which the accused is being tried and other factors. One of the most relevant factor is the duration of the minimum and maximum sentence for the offence. Another important consideration is the higher threshold or stringent conditions which a statute provides for the grant of bail. Even an outer limit provided by the relevant law for the completion of the trial, if any, is also a factor to be considered. The extraordinary powers, as held in the case of K.A. Najeeb (Union of India v. K.A. Najeeb (2021) 3 SCC 713), can only be exercised by the Constitutional Courts.
The judges of the Constitutional Courts have vast experience. Based on the facts on record, if the Judges conclude that there is no possibility of a trial concluding in a reasonable time, the power of granting bail can always be exercised by the Constitutional Courts on the grounds of violation of Part III of the Constitution of India notwithstanding the statutory provisions. The Constitutional Courts can always exercise its jurisdiction under Article 32 or Article 226, as the case may be. The Constitutional Courts have to bear in mind while dealing with the cases under the PMLA that, except in a few exceptional cases, the maximum sentence can be of seven years.
The Constitutional Courts cannot allow provisions like Section 45(1)(ii) to become instruments in the hands of the ED to continue incarceration for a long time when there is no possibility of a trial of the scheduled offence and the PMLA offence concluding within a reasonable time. If the Constitutional Courts do not exercise their jurisdiction in such cases, the rights of the undertrials under Article 21 of the Constitution of India will be defeated.
In a given case, if an undue delay in the disposal of the trial of scheduled offences or disposal of trial under the PMLA can be substantially attributed to the accused, the Constitutional Courts can always decline to exercise jurisdiction to issue prerogative writs. An exception will also be in a case where, considering the antecedents of the accused, there is every possibility of the accused becoming a real threat to society if enlarged on bail. The jurisdiction to issue prerogative writs is always discretionary.
Equally significant and most remarkably, the Bench then on an optimistic note propounds in para 28 stating that:
Some day, the courts, especially the Constitutional Courts, will have to take a call on a peculiar situation that arises in our justice delivery system. There are cases where clean acquittal is granted by the criminal courts to the accused after very long incarceration as an undertrial. When we say clean acquittal, we are excluding the cases where the witnesses have turned hostile or there is a bona fide defective investigation. In such cases of clean acquittal, crucial years in the life of the accused are lost. In a given case, it may amount to violation of rights of the accused under Article 21 of the Constitution which may give rise to a claim for compensation.
It is worth noting that the Bench notes in para 29 that:
As stated earlier, the appellant has been incarcerated for 15 months or more for the offence punishable under the PMLA. In the facts of the case, the trial of the scheduled offences and, consequently, the PMLA offence is not likely to be completed in three to four years or even more. If the appellant’s detention is continued, it will amount to an infringement of his fundamental right under Article 21 of the Constitution of India of speedy trial.
While adding a rider, the Bench hastens to add in para 30 expounding that:
The decisions of the learned SG relied upon indicate that the appellant’s influential position in the State may have resulted in a so-called compromise between the bribe givers and the bribe takers. Considering the apprehension of the appellant tampering with the evidence, stringent conditions must be imposed.
As a corollary, the Bench then directs in para 31 stipulating that:
Therefore, the appeal is allowed, and the appellant shall be enlarged on bail till the final disposal of CC No. 9 of 2023 pending before the Principal Session Judge, Chennai, on the following conditions:
- The appellant shall furnish bail bonds in the sum of Rs.25,00,000/- (Rupees twenty-five lakhs only) with two sureties in the like amount;
- The appellant shall not directly or indirectly attempt to contact or communicate with the prosecution witnesses and victims of the three scheduled offences in any manner. If it is found that the appellant directly or indirectly made even an attempt to contact any prosecution witness or victim in the scheduled as well as offences under the PMLA, it will be a ground to cancel the bail granted to the appellant.
- The appellant shall mark his attendance every Monday and Friday between 11 am and 12 noon in the office of the Deputy Director, the Directorate of Enforcement at Chennai. He shall also appear on the first Saturday of every calendar month before the investigating officers of the three scheduled offences;
- Before the appellant is enlarged on bail, he shall surrender his passport to the Special Court under the PMLA at Chennai;
- The appellant shall regularly and punctually remain present before the Courts dealing with scheduled offences as well as the Special Court and shall cooperate with the Courts for early disposal of cases; and
- If the appellant seeks adjournments on non-existing or frivolous grounds or creates hurdles in the early disposal of the cases mentioned above, the bail granted to him shall be liable to be cancelled.
Finally, the Bench then concludes precisely by holding in para 32 that:
The appeal is allowed on the above terms.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
