A lower court in Delhi granted bail to Arvind Kejriwal, who is in jail in the PMLA case. But the very next day, the Delhi High Court stayed the trial court’s order. A bench headed by Justice Sudhir Kumar Jain in the Delhi High Court was hearing the ED’s urgent appeal. In which a stay was sought on Kejriwal’s bail. The High Court has reserved the judgment while staying the bail.
Why did ED ask for a stay?
ED challenged the decision of Rouse Avenue Court in the High Court and argued that the trial court did not apply the ‘twin test’ formula under PMLA while granting bail to Kejriwal. If the twin test had been applied, bail would not have been granted. After hearing the arguments of ED, the High Court stayed Kejriwal’s bail. A status report has been sought by Monday (24 June). After this, the decision will be given.
What is the provision for bail in PMLA?
Section 45 of the Prevention of Money Laundering Act (PMLA) has provisions related to bail. This section first states that no court can grant bail for crimes under this law. Then some exceptions are also mentioned. According to Section 45, before hearing the bail plea of an accused jailed under PMLA, it is mandatory for the court to hear the public prosecutor. This section states that if the public prosecutor opposes bail, then the court will have to apply the twin test formula.
What is Twin Test Formula? (What is Twin Test)
There are two conditions of the twin test…
1- The court must have “sufficient grounds to believe that the accused would prima facie not be found guilty of the offence in question…”
2- If the accused is granted bail, “there is no likelihood of him committing any offence of this nature in future while on bail…”
Supreme Court advocate Adarsh Tiwari says in conversation with https://hindi.AnyTV.com/ That the twin test is considered to be the toughest in criminal cases. In simple words, it is easy to get bail in a 302 case, but bail is very difficult in the twin test, because in 302 or other sections, the court does not see whether the accused will be proven guilty or not. The judge takes the decision after looking at the nature and seriousness of the charge.
Not only PMLA has such provisions, but many other serious crimes also have similar rules. For example, Section 36AC of The Drugs and Cosmetics Act, 1940, Section 37 of The Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 43D(5) of the UAPA Act 1967. For example, the provision related to bail in UAPA states, “No person accused of an offence under Chapter IV (Punishment for terrorist activities) and Chapter VI (terrorist organisation) of this Act shall be released on bail unless the public prosecutor has been given an opportunity of being heard…”
Advocate Tiwari says that similarly there is section 21(4) of MCOCA, in which the same twin test applies. In the case of Sukesh Chandrashekhar in April 2024, the Delhi High Court granted bail to the Tihar Jail Superintendent after 30 months in the ‘Sunil Kumar vs NCT Delhi’ case.
So will you never get bail?
Section 436A of the CrPC states that if an accused completes more than half of the sentence during the trial, he is entitled to bail. This means that if the ED is unable to complete the trial in a money laundering case within 3.5 years, then the concerned accused is entitled to bail, whether the twin test applies or not.
Tags: Arvind Kejriwal, CM Arvind Kejriwal
FIRST PUBLISHED : June 22, 2024, 13:28 IST