Is Bail Possible in CBI Cases Involving PMLA or UAPA?

Is Bail Possible in CBI Cases Involving PMLA or UAPA? A Comprehensive Legal Guide Under Indian Law

Introduction

Cases investigated by the Central Bureau of Investigation (CBI) often involve serious economic offences, corruption, terrorism, and threats to national security. When such cases also attract special statutes like the Prevention of Money Laundering Act, 2002 (PMLA) or the Unlawful Activities (Prevention) Act, 1967 (UAPA), the question of bail becomes far more complex and restrictive. Many accused persons and even legal practitioners assume that bail is practically impossible under these special laws.

The direct and clear legal answer is: Yes, bail is legally possible in CBI cases involving PMLA or UAPA, but it is significantly more difficult due to stringent statutory conditions and higher judicial thresholds.
There is no absolute prohibition on bail under either PMLA or UAPA, but the courts apply special tests before granting relief.

This detailed and structured blog post explains the complete legal position on bail in CBI cases involving PMLA or UAPA, covering statutory provisions, special bail conditions, judicial principles, landmark judgments, practical strategies, and frequently asked questions.

1. Understanding the Overlap: CBI, PMLA, and UAPA

CBI investigations may overlap with:

  • PMLA – Where proceeds of crime arising out of scheduled offences (like corruption, fraud, or economic crimes) are laundered.
  • UAPA – Where offences relate to terrorism, unlawful activities, or threats to national security.

In such situations:

  • The CBI investigates the predicate (scheduled) offence.
  • The Enforcement Directorate (ED) investigates money laundering under PMLA.
  • The National Investigation Agency (NIA) or CBI investigates offences under UAPA.

However, bail for offences under PMLA or UAPA is governed by their own special bail provisions, which override the general BNSS principles.

2. Direct Legal Answer: Is Bail Possible in PMLA or UAPA Cases?

Yes, bail is legally possible in CBI cases involving PMLA or UAPA, but it is subject to strict statutory conditions and a much higher judicial threshold.

  • Under PMLA, bail is governed by Section 45, which imposes “twin conditions.”
  • Under UAPA, bail is governed by Section 43D(5), which creates a near-presumption against bail.

Neither statute completely bars bail, but both make bail exceptional rather than routine.

3. Bail Under the Prevention of Money Laundering Act (PMLA)

(A) Special Bail Provision – Section 45 PMLA

Section 45 of PMLA lays down twin conditions for bail:

  1. The Public Prosecutor must be given an opportunity to oppose bail; and
  2. The court must be satisfied that:
    • There are reasonable grounds to believe that the accused is not guilty of the offence; and
    • The accused is not likely to commit any offence while on bail.

These conditions are in addition to the normal BNSS bail principles.

(B) Supreme Court Validation of Twin Conditions

In Nikesh Tarachand Shah v. Union of India (2017), the Supreme Court struck down Section 45 as unconstitutional.
However, Parliament amended Section 45 in 2018, and later in Vijay Madanlal Choudhary v. Union of India (2022), the Supreme Court upheld the validity of the twin conditions.

(C) Practical Implication for Bail Under PMLA

To get bail under PMLA, the accused must show:

  • Weakness in the prosecution case
  • Lack of mens rea
  • No direct involvement in laundering
  • Absence of proceeds of crime
  • Completion of investigation
  • Long incarceration
  • Delay in trial
  • Parity with co-accused

4. Bail Under the Unlawful Activities (Prevention) Act (UAPA)

(A) Special Bail Provision – Section 43D(5) UAPA

Section 43D(5) UAPA provides:

“No person accused of an offence under Chapters IV and VI of UAPA shall be released on bail if the court, on a perusal of the case diary or charge sheet, is of the opinion that there are reasonable grounds for believing that the accusation is prima facie true.”

This provision creates a reverse burden against the accused.

(B) Meaning of “Prima Facie True”

The Supreme Court in NIA v. Zahoor Ahmad Shah Watali (2019) held:

  • Courts must not conduct a detailed trial at bail stage
  • If allegations appear plausible on the face of records, bail must be denied
  • The prosecution version must be taken at face value

This judgment made UAPA bail extremely difficult.

(C) Liberal Turn in Later Judgments

Later cases like:

  • Union of India v. K.A. Najeeb (2021)
  • Thwaha Fasal v. Union of India (2021)

The Supreme Court held:

  • Prolonged incarceration and delay in trial can override Section 43D(5)
  • Article 21 cannot be suspended
  • Bail can be granted if trial is unlikely to conclude soon

5. Comparison: Bail Under PMLA vs UAPA

AspectPMLAUAPA
Bail sectionSection 45Section 43D(5)
Nature of restrictionTwin conditionsPrima facie true test
Burden of proofOn accusedOn accused
Judicial approachStrict but flexibleExtremely strict
Constitutional overrideArticle 21 applicableArticle 21 applicable
Bail chancesDifficultVery difficult
Liberalization by SCYesYes (limited)

6. Does CBI’s Involvement Make Bail Harder?

Yes, practically speaking.

Reasons:

  • CBI cases involve high public interest
  • Evidence is voluminous and technical
  • Allegations often involve large sums or national security
  • Courts adopt extra caution

However, CBI involvement alone does not legally bar bail.

7. Role of Article 21: Constitutional Safety Valve

The Supreme Court has repeatedly held:

“Statutory restrictions on bail cannot completely override the fundamental right to personal liberty under Article 21.”

In K.A. Najeeb (2021), the Court granted bail under UAPA due to:

  • Five years of incarceration
  • Trial not even commenced
  • Over 200 witnesses
  • Impossibility of early conclusion

Thus, long custody + slow trial = strong bail ground, even under PMLA or UAPA.

8. When Bail Is More Likely in PMLA or UAPA Cases

Bail chances improve when:

  • Investigation is complete
  • Charge sheet is filed
  • Accused is not a mastermind
  • No recovery pending
  • No prior criminal record
  • Parity with co-accused
  • Serious medical issues
  • Trial delay exceeding 3–5 years
  • Weak prima facie case

9. Practical Strategy to Seek Bail in Such Cases

A robust bail strategy should include:

  1. Challenging applicability of PMLA/UAPA
  2. Highlighting weak mens rea
  3. Emphasizing long custody
  4. Arguing documentary nature of evidence
  5. Showing parity with co-accused
  6. Pointing out trial delays
  7. Offering strict bail conditions
  8. Citing Supreme Court precedents
  9. Invoking Article 21
  10. Seeking interim bail first if needed

10. Frequently Asked Questions (FAQs)

Q1. Is bail completely barred under PMLA?

No. Bail is not barred but is subject to twin conditions under Section 45.

Q2. Is bail completely barred under UAPA?

No. Bail is not barred but is extremely restricted under Section 43D(5).

Q3. Can the High Court grant bail under PMLA or UAPA?

Yes. High Courts have full power under Section 483 BNSS and constitutional jurisdiction.

Q4. Can bail be granted after filing of charge sheet?

Yes. Filing of charge sheet improves bail chances under both PMLA and UAPA.

Q5. Can long custody alone justify bail?

Yes. As per K.A. Najeeb, prolonged incarceration can override statutory bail restrictions.

Q6. Can bail be granted on medical grounds?

Yes. Serious illness is a recognized ground even under PMLA and UAPA.

Q7. Can bail be cancelled later?

Yes. Bail can be cancelled if conditions are violated or liberty is misused.

11. Key Takeaways

  • Yes, bail is legally possible in CBI cases involving PMLA or UAPA.
  • Bail under PMLA is governed by strict twin conditions.
  • Bail under UAPA is governed by the prima facie true test.
  • Neither law creates an absolute bar on bail.
  • Article 21 acts as a constitutional safeguard.
  • Long incarceration and trial delay are powerful bail grounds.
  • Supreme Court jurisprudence supports liberty even in special law cases.

Conclusion

Bail in CBI cases involving the Prevention of Money Laundering Act or the Unlawful Activities (Prevention) Act is undoubtedly one of the most challenging areas of criminal jurisprudence in India. The correct legal position is that bail is possible, but not easy, under both PMLA and UAPA. Special statutory restrictions—such as the twin conditions under Section 45 PMLA and the prima facie true test under Section 43D(5) UAPA—significantly raise the threshold for securing bail.

However, Indian constitutional law does not permit indefinite incarceration merely because an offence is serious or politically sensitive. The Supreme Court has consistently held that Article 21 remains a controlling constitutional safeguard, even in cases governed by stringent special statutes. Prolonged custody, slow trials, weak prima facie evidence, parity with co-accused, and serious medical conditions can tilt the balance in favor of bail even under these restrictive regimes.

Therefore, yes, bail is legally possible in CBI cases involving PMLA or UAPA, provided a well-structured legal strategy is adopted, supported by constitutional principles and binding judicial precedents. Each case must be evaluated on its own facts, and a carefully drafted bail application remains the most effective tool to protect personal liberty in these complex and high-stakes matters.

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.

Advocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304


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