“Any Incriminating Statement…”: Supreme Court’s Fresh Fire On Bail Denials

Stressing that bail is the rule and jail exception, the Supreme Court today said any incriminating statement given by an accused to the investigating officer while in custody in a money laundering case will not be admissible as evidence.

The court made the strong observation while granting bail to Prem Prakash, allegedly an aide of Jharkhand Chief Minister Hemant Soren, in a money laundering case. This comes a day after the Supreme Court granted the relief to Bharat Rashtra Samithi leader K Kavitha, who was arrested in March in a money laundering case linked to Delhi’s now-scrapped liquor policy. Earlier this month, AAP leader Manish Sisodia was also granted bail in a money laundering case.

In today’s judgment, the bench of Justice BR Gavai and KV Viswanathan said, “Relying on the judgment in Manish Sisodia, we have said that even in PMLA (Prevention of Money Laundering Act), bail is a rule and jail the exception.”

The bench referred to Section 45 of the PMLA that mentions twin conditions for bail — there should be prima facie satisfaction that the accused has not committed the offence and that he is not likely to commit any offence while on bail.

All that Section 45 specifies, the court said, is the conditions to be met for bail. “Liberty of the individual is always the rule and deprivation, by procedure established by law, the exception. Twin test does not take away this principle,” it added.

The bench clarified that any incriminating statement made by an accused in custody in a PMLA case before an investigating officer will not be admissible in court. “It will extremely unfair to make such statements admissible as it will be against all canons of justice.”

The prosecution, the court said, has to prima facie crystallise the issues and facts for consideration of bail under PMLA.

“The appellant is not prima facie guilty of the offences and unlikely to tamper with evidence, hence a fit case for bail. Observations only limited to bail and shall not influence the trial in accordance with law,” the bench said, granting the relief to Prem Prakash.

The top court’s latest order has come a day after the relief to BRS leader K Kavitha in which the court questioned central agencies if they were free to “pick and choose” an accused.

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The bench of Justice BR Gavai and KV Viswanathan said it was “sorry to see this state of affairs”. “The prosecution has to be fair. You can’t pick and choose anyone. What is this fairness? A person who incriminates himself has been made a witness,” the bench said.

Earlier this month, while granting relief to Mr Sisodia, the court had cited ‘bail is the rule’ principle.

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“Trial court and High Court ought to have given due weightage to this. Courts have forgotten that bail ought not to be withheld as punishment,” the court had said, holding the accused’s right to liberty as “sacrosanct”.