This Court, in the carefully couched paragraph
extracted above used the phrase “persons of tender age and
woman who are likely to be more vulnerable, may sometimes
be misused by the unscrupulous elements”. This is vastly
different from saying that the proviso to Section 45(1) of the
PMLA applies only to “vulnerable woman”. Further, this
Court in the case of Saumya Chaurasia (supra) does not
say that merely because a woman is highly educated or
sophisticated or a Member of Parliament or a Member of
Legislative Assembly, she is not entitled to the benefit of the
proviso to Section 45(1) of the PMLA. {Para 27}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2024
[Arising out of SLP(Criminal) No. 10778 of 2024]
KALVAKUNTLA KAVITHA Vs DIRECTORATE OF ENFORCEMENT
Author: B.R. GAVAI, J.
Citation: 2024 INSC 632.
1. Leave granted.
2. These appeals challenge the judgment and order dated
01.07.2024 passed by the learned Single Judge of the High
Court of Delhi at New Delhi in Bail Application Nos.1675 and
1739 of 2024, vide which the learned Single Judge has
refused to grant bail to the appellant herein.
3. Though the matter has been argued at length by Shri
Mukul Rohatgi, learned Senior Counsel along with Shri D.S.
Naidu and Shri Vikram Chaudhri, learned Senior Counsel
appearing on behalf of the appellant, and Shri S.V. Raju,
learned Additional Solicitor General of India (for short, ‘ASG’)
for the respondent(s), at length; learned ASG has suggested
that this Court should avoid elaborate discussions on the
merits, inasmuch as any observations may prejudice the
rights of either of the parties at the trial.
4. We appreciate the fairness of the learned ASG in
suggesting the Court not to record the detailed elaborations
on the merits of the case. It has been a consistent view of
this Court that the Courts should avoid elaborate discussion
at the stage of considering application for bail. We would
therefore avoid any discussion on the merits of the present
case inasmuch as the same may prejudice the rights of either
of the parties at the trial.
5. Shri Rohatgi, learned Senior Counsel submits that there
is no material on record so as to implicate the appellant
herein with the offences charged with. In any case, he
submits that insofar as the appeal arising out of SLP(Crl.)
No.10778 of 2024 is concerned, the complaint has been filed
by the prosecution and insofar as the appeal arising out of
SLP(Crl.) No.10785 of 2024 is concerned, the charge-sheet
3
has already been filed. It is submitted that since the
investigation is complete, further custody of the appellant
would not be required.
6. Shri Rohatgi, relying on the judgment of this Court in
the case of Manish Sisodia v. Directorate of
Enforcement1, submits that inasmuch as both the said case
and the present case arise out of the same set of facts and so
in the present case also there are about 493 witnesses to be
examined and the documents to be considered are in the
range of about 50,000 pages. He further submits that no
proceeds of crime have been recovered from the appellant.
Shri Rohatgi further submits that the appellant is a woman
and is therefore entitled to special treatment under proviso to
Section 45(1) of the Prevention of Money-Laundering Act,
2002 (for short, ‘PMLA’).
7. Shri S.V. Raju, learned ASG vehemently opposed these
appeals. He submits that the statements of various witnesses
as well as co-accused would clearly show that the present
appellant was a kingpin in arranging the deal between the
co-accused-Arvind Kejriwal and the south lobby. He submits
1 2024 SCC OnLine SC 1920 : 2024 INSC 595
that the statements of the witnesses clearly show that the
proceeds of the crime have passed through, or at least at her
instance. Learned ASG further submits that not only the
statements recorded under Section 50 of the PMLA but also
the statements recorded under Section 164 of the Code of
Criminal Procedure, 1973 before the learned Magistrate
would clearly implicate the present appellant in the trial.
8. Learned ASG further submits that the learned Trial
Judge has rightly refused to grant the benefit of the proviso
to Section 45(1) of the PMLA on the ground that the
appellant is a woman, inasmuch as she has indulged herself
into tampering with the evidence and influencing the
witnesses. He submits that the appellant has formatted her
mobile set in order to destroy the evidence which was against
her.
9. Learned ASG further submits that the sequence as to in
what manner the accused Arun Pillai has retracted his
statement would clearly show that it is the present appellant,
who has a role to play. He submits that though the statement
of Arun Pillai under Section 50 of the PMLA was recorded on
10.11.2022 after a period of more than three months, he has
retracted the statement on 09.03.2023. He further submits
that it is relevant to note that the first summons were issued
to the present appellant on 07.03.2023 i.e., two days prior to
the day Arun Pillai retracted his statement. He therefore
submits that the Court will have to draw an inference that
the appellant is indulging in influencing the witnesses.
10. On perusal of the record, we find that in CBI case
charge-sheet has been filed and in ED case complaint has
been filed. As such, the custody of the appellant herein is
not necessary for the purpose of investigation.
11. The appellant has been behind the bars for the last five
months. As observed by us in the case of Manish Sisodia
(supra), taking into consideration that there are about 493
witnesses to be examined and the documents to be
considered are in the range of about 50,000 pages, the
likelihood of the trial being concluded in near future is
impossible.
12. Relying on the various pronouncements of this Court,
we had observed in the case of Manish Sisodia (supra) that
the prolonged incarceration before being pronounced guilty of
an offence should not be permitted to become punishment
without trial.
13. We had also reiterated the well-established principle
that “bail is the rule and refusal is an exception”. We had
further observed that the fundamental right of liberty
provided under Article 21 of the Constitution is superior to
the statutory restrictions.
14. We are further of the view that the proviso to Section
45(1) of the PMLA would entitle a woman for special
treatment while her prayer for bail is being considered.
15. The said proviso to Section 45(1) of the PMLA reads
thus:-
“Provided that a person, who, is under the age of
sixteen years, or is a woman or is sick or infirm, or
is accused either on his own or along with other co-accused of money-laundering a sum of less than
one crore rupees, may be released on bail, if the
special court so directs:”
16. A perusal of the above proviso would thus reveal that
the proviso permits certain category of accused including
woman to be released on bail, without the twin requirement
under Section 45 of the PMLA to be satisfied. No doubt that,
as argued by the learned ASG, in a given case the accused
even if a woman may not be automatically entitled to benefit
of the said proviso and it would all depend upon the facts
and circumstances of each case.
17. However, when a statute specifically provides a special
treatment for a certain category of accused, while denying
such a benefit, the Court will be required to give specific
reasons as to why such a benefit is to be denied.
18. The order of the learned Single Judge, which denies the
special treatment to the present appellant makes for an
interesting reading. The learned Judge observed thus:-
“65. As mentioned in the contents of the application
itself, the applicant Smt. K. Kavitha, is a member of
the Telangana Legislative Council from the
Nizamabad Local Bodies Constituency and has held
significant political positions, including Member of
Parliament (MP) for Nizamabad formerly. During
her tenure in the Lok Sabha, she served on several
committees. She had initiated a 'Free Meal Initiative'
in her constituency, providing meals at state
hospitals and during the pandemic. She is also the
founder of the Telangana Jagruti Skill Centre,
offering vocational training to youth, and as per her
pleadings has been involved in educating poor
children in the Nalgonda district since 2006. It is
claimed in the pleadings that she is a prominent
figure in the Telangana statehood movement. She
holds a Bachelor's degree in Engineering and a
Master's degree in Sciences. She has also served as
the National Commissioner of Bharat Scouts and
Guides since 2005 amongst many other
achievements mentioned in the pleadings.
66. It is heartening to note that the applicant Smt.
K. Kavitha, is a highly qualified and wellaccomplished person, having made significant
contributions to politics and social work as enlisted
by her in her pleadings. The same were not disputed
8
by the investigating agencies. Her educational
qualification and the activities, she has enlisted for
the betterment of society in the State of Telangana
are essentially, one side of herself and is impressive.
However, while deciding the present bail
applications, though this Court may appreciate
these accomplishments, it cannot lose sight of
serious allegations levelled by the prosecution and
the evidences collected during the course of
investigation and presented before this Court, which
prima facie reveal her role in the offence in
question.
67. Furthermore, as far as benefit of proviso to
Section 45 is concerned, when it is the case of
applicant herself that she is a well educated and
accomplished woman, who has remained
Member of Parliament, Member of Legislative
Council, etc., this Court is bound to keep in
mind the observations of the Hon'ble Apex Court
in case of Saumya Chaurasia (supra). The material
collected by the Directorate of Enforcement, which
has been discussed in the preceding paragraphs
has pointed out that the applicant herein was one of
the chief conspirators in the entire conspiracy
relating to formulation and implementation of new
Excise Policy of Delhi. In fact, some other accused
persons were working on behalf of the applicant and
as per her instructions, as noted in the preceding
discussion.
68. Thus, Smt. K. Kavitha cannot be equated to
a vulnerable woman who may have been misused
to commit an offence, which is the class of
women for whom the proviso to Section 45 of
PMLA has been incorporated, as held by the
Hon'ble Apex Court in case of Saumya Chaurasia
(supra). Accordingly, this Court is of the
considered opinion that Smt. K. Kavitha is not
entitled to the benefit of proviso to Section 45
of PMLA.”
[emphasis supplied]
19. Day in and day out it is argued before us on behalf of
the prosecution that merely because an accused has a
special status in terms of he/she being a Member of
Parliament or a Member of Legislative Assembly or a Minister
or a Chief Minister, etc., they should not be given a special
treatment and should be treated equally as any other
accused.
20. However, the learned Single Judge in the present case,
while denying the benefit of the proviso to Section 45(1) of the
PMLA, comes to a “heartening conclusion” that the appellant
is highly qualified and a well-accomplished person. The
learned Single Judge further observed that the appellant has
made significant contributions to politics and social work.
The learned Single Judge further observed that while
deciding her bail application, the Court may appreciate her
accomplishment, however, it cannot lose sight of the serious
allegations levelled by the prosecution and the evidence
collected during the course of the investigation and presented
before the Court.
21. The learned Single Judge thereafter proceeds to observe
that the present appellant cannot be equated to a “vulnerable
10
woman”.
22. We find that the learned Single Judge erroneously
observed that the proviso to Section 45(1) of the PMLA is
applicable only to a “vulnerable woman”.
23. We further find that the learned Single Judge totally
misapplied the ratio laid down by this Court in the case of
Saumya Chaurasia v. Directorate of Enforcement (2024) 6 SCC 401 : 2023 INSC 1073.
24. A perusal of the judgment of this Court in the case of
Saumya Chaurasia (supra) would show that this Court has
observed that the Courts need to be more sensitive and
sympathetic towards the category of persons included in the
first proviso to Section 45 of the PMLA and similar provisions
in the other Acts. The Court observes that the persons of
tender age and women who are likely to be more vulnerable
may sometimes be misused by unscrupulous elements and
made scapegoats for committing such crime.
25. No doubt that this Court observes that nowadays the
educated and well-placed women in the society engage
themselves in commercial ventures and enterprises and
advertently or inadvertently engage themselves in the illegal
activities. The Court therefore puts a caution that the Courts,
while deciding such matters, should exercise the discretion
judiciously using their prudence.
26. This Court in the case of Saumya Chaurasia (supra),
while paraphrasing proviso to Section 45(1) of the PMLA
stated in paragraph 23 as follows:
“23. ….. No doubt the courts need to be more
sensitive and sympathetic towards the category of
persons included in the first proviso to Section 45
and similar provisions in the other Acts, as the
persons of tender age and women who are likely to
be more vulnerable, may sometimes be misused by
the unscrupulous elements …….”
27. This Court, in the carefully couched paragraph
extracted above used the phrase “persons of tender age and
woman who are likely to be more vulnerable, may sometimes
be misused by the unscrupulous elements”. This is vastly
different from saying that the proviso to Section 45(1) of the
PMLA applies only to “vulnerable woman”. Further, this
Court in the case of Saumya Chaurasia (supra) does not
say that merely because a woman is highly educated or
sophisticated or a Member of Parliament or a Member of
Legislative Assembly, she is not entitled to the benefit of the
proviso to Section 45(1) of the PMLA.
28. We, therefore, find that the learned Single Judge of the
High Court has totally misdirected herself while denying the
benefit of the proviso to Section 45(1) of the PMLA.
29. In the result, we allow these appeals, in the following
terms:-
(i) The impugned judgment and order dated 01.07.2024
passed by the learned Single Judge of the High Court
of Delhi at New Delhi in Bail Application Nos.1675
and 1739 of 2024 are quashed and set aside;
(ii) The appellant is directed to be released forthwith on
bail in connection with Complaint Case No.31 of
2022 arising out of ECIR/HIUII/14/2022 dated
22.08.2022, P.S. HIU, Directorate of Enforcement
and RC-0032022A0053 dated 17.08.2022, P.S. CBI,
ACB, on furnishing bail bonds in the sum of
Rs.10,00,000/- in each of the cases;
(iii) The appellant shall not make any attempt to tamper
with the evidence or influence the witnesses;
(iv) The appellant shall deposit her passport with the
learned Trial Judge; and
(v) The appellant shall regularly attend the Trial Court
and cooperate with the expeditious disposal of the
trial.
30. Though we have not observed anything on the merits of
the matter, any observation in this judgment would not
prejudice the trial.
31. Pending application(s), if any, shall stand disposed of.
..............................J.
(B.R. GAVAI)
..............................J.
(K.V. VISWANATHAN)
NEW DELHI;
AUGUST 27, 2024.
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