The Section 45 PMLA Proviso: Bail for Women, Children, the Sick or Infirm, and Cases Below ₹1 Crore

Section 45 of the Prevention of Money-laundering Act, 2002 contains both a stringent general rule and a deliberately protective proviso. The general rule imposes the familiar “twin conditions” for bail. The proviso permits the Special Court to release specified classes of accused: a person below sixteen years of age, a woman, a person who is sick or infirm, or a person accused—alone or with co-accused—of money laundering a sum below ₹1 crore.

The proviso is neither decorative nor an automatic release clause. Its correct operation lies between those extremes. The Supreme Court’s judgment in Kalvakuntla Kavitha v Directorate of Enforcement, Criminal Appeals arising from SLP (Crl.) Nos. 10778 and 10785 of 2024, 2024 INSC 632, decided on 27 August 2024, is the principal authority on how courts must approach the “woman” category. It also supplies a broader interpretive discipline applicable to every category expressly protected by Parliament.

The statutory architecture

Section 45(1) begins with a non-obstante clause and ordinarily prevents release for an offence under the PMLA unless the Public Prosecutor has an opportunity to oppose bail and, where bail is opposed, the court is satisfied that there are reasonable grounds for believing the accused is not guilty and is unlikely to commit an offence while on bail.

The first proviso then states that a qualifying person “may be released on bail, if the Special Court so directs”. Its function is to permit release without insisting that the twin conditions be satisfied. That is the express holding in paragraph 16 of Kalvakuntla Kavitha. The word “may” preserves discretion; the identification of protected categories gives that discretion a statutory direction.

This produces two important consequences. First, a court cannot apply the twin conditions unchanged and thereby erase the proviso. Secondly, membership of a protected class does not compel release regardless of flight risk, witness interference, destruction of evidence, non-cooperation or other legitimate considerations under ordinary bail law.

Kalvakuntla Kavitha: facts and procedural posture

The appeals arose from a Delhi High Court order dated 1 July 2024 refusing bail in connected CBI and Enforcement Directorate proceedings. By the time the Supreme Court considered the matter, the CBI had filed its charge-sheet and the Enforcement Directorate had filed its complaint. The Court found that further custody was unnecessary for investigation. The appellant had spent approximately five months in custody; the prosecution involved about 493 witnesses and approximately 50,000 pages of documents, making an early conclusion improbable.

The High Court had refused the benefit of the PMLA proviso after noting that the appellant was highly educated, accomplished, politically experienced and alleged to be a principal conspirator. It reasoned that she could not be equated with a “vulnerable woman” who had been misused to commit an offence.

The Supreme Court held that this approach misdirected the statutory inquiry. Paragraphs 22 to 28 explain that Section 45 does not confine the proviso to a judicially created sub-class called “vulnerable women”. Education, sophistication, political office or professional accomplishment does not remove a woman from the statutory category.

The Court carefully distinguished an observation in Saumya Chaurasia that persons of tender age and women who are likely to be vulnerable may sometimes be used as scapegoats. That observation illustrated why greater sensitivity may be required; it did not rewrite “a woman” as “a vulnerable woman”. Kalvakuntla Kavitha therefore prevents courts from adding a qualification Parliament did not enact.

Special treatment requires a reasoned decision

Paragraph 17 contains a rule of practical importance: when a statute specifically provides special treatment to a category of accused, a court denying that benefit must give specific reasons. A bail order should first determine whether the applicant falls within the proviso. It should then identify the reasons that nevertheless justify refusal under the facts of the case.

Serious allegations are relevant, but simply describing their seriousness does not complete the exercise. If gravity alone automatically displaced the proviso, the protection would rarely operate in a PMLA prosecution. The court must connect the case-specific material with a recognised bail concern and explain why conditions would not adequately control it.

On the facts before it, the Supreme Court set aside the High Court’s order and directed release in both cases on bonds of ₹10 lakh each. It imposed conditions against tampering or influencing witnesses, required passport deposit, and directed regular attendance and cooperation with an expeditious trial. The Court expressly avoided a merits determination so that the prosecution and defence would remain unaffected at trial.

Women under the proviso

After Kalvakuntla Kavitha, three propositions are clear. Every woman accused qualifies for consideration under the proviso; the statute does not demand proof that she is socially or economically vulnerable; and release remains discretionary on the complete bail record.

The court may assess the alleged role, post-offence conduct, custody already undergone, completion of investigation, evidentiary security, trial timetable, antecedents, health, family circumstances and risks to the process. It may not exclude the applicant from the category merely because she is educated, financially independent, politically influential or alleged to have acted with agency.

A finding of influence must also be separated from status. Holding public office may make an allegation of interference more plausible in a particular factual record, but office alone is not proof. Where the risk can be managed through non-contact directions, passport surrender, reporting, travel restrictions or attendance requirements, the court should consider those measures before concluding that custody is indispensable.

Persons below sixteen years

The age limb uses a precise statutory threshold: the person must be below sixteen. Proof should ordinarily come from reliable age records, and a genuine dispute should be resolved rather than assumed. The PMLA protection operates alongside, and does not displace, the Juvenile Justice (Care and Protection of Children) Act, 2015. Where the person was below eighteen on the date of the alleged offence, the special juvenile-justice framework, including age determination and the jurisdiction of the Juvenile Justice Board, may independently govern.

The difference in thresholds matters. Section 45 expressly protects those below sixteen, but it cannot be read to reduce protections independently available to a child under the Juvenile Justice Act. A court must identify the applicable statutory route instead of treating the PMLA proviso as the entire law governing a child accused.

Sick and infirm persons

The proviso uses “sick” and “infirm” disjunctively, so neither word should be treated as redundant. The PMLA does not define them. The inquiry must therefore remain anchored in the person’s demonstrated condition and the demands of custody, rather than in labels alone.

Useful medical material includes diagnosis, duration and severity; functional limitation; treatment already received; specialist recommendations; risk of deterioration; whether the required treatment is consistently available in custody; and whether temporary hospitalisation can adequately address the condition. The prosecution must have a fair opportunity to test disputed medical claims, including through an independent medical board where necessary.

Two opposite errors should be avoided. Treating every manageable ailment as decisive would convert discretion into automatic release. Requiring a terminal illness or immediate medical emergency would add words Parliament did not enact. The reasoned question is whether the proved sickness or infirmity, considered with custody conditions and ordinary bail risks, justifies the statutory indulgence.

The below-₹1 crore category

The fourth limb applies to a person accused, either alone or together with co-accused, of money laundering “a sum of less than one crore rupees”. The threshold is strictly below ₹1 crore, not ₹1 crore or less. The court must use the allegation legally attributable to the applicant under the complaint and supporting record, not an unexplained figure repeated from the scheduled offence.

The text’s reference to conduct “on his own or along with other co-accused” prevents an applicant from isolating only one transaction where the prosecution alleges joint laundering of a larger sum. At the same time, the value of the scheduled offence, the alleged proceeds of crime, and the property or activity constituting the applicant’s alleged laundering are not automatically identical concepts. The order should identify the prosecution’s theory, the amount it attributes and the basis for aggregation without conducting a premature mini-trial.

There is no authoritative Supreme Court ruling, as of this review, resolving every possible valuation or aggregation dispute under this limb. Courts should therefore avoid turning fact-specific interim orders into universal rules and should begin with the statutory definition of “proceeds of crime”, the allegations in the PMLA complaint and the precise wording of the proviso.

Interaction with ordinary bail considerations and Article 21

Section 45(2) makes clear that its limitations are additional to the Code governing bail. Once the proviso permits the court to proceed without the twin conditions, ordinary considerations remain relevant: likelihood of appearance, interference with evidence or witnesses, repetition, antecedents, investigation status and the suitability of conditions.

Article 21 remains independently important. In Kalvakuntla Kavitha, the Court considered completed investigation, five months of custody, 493 witnesses and about 50,000 pages while emphasising that pre-trial incarceration must not become punishment. A qualifying applicant may thus rely both on the proviso and on constitutional delay, but the two inquiries should be stated separately. The proviso rests on Parliament’s protected categories; Article 21 controls disproportionate detention and an unreasonably remote trial.

For proceedings governed by the Bharatiya Nagarik Suraksha Sanhita, 2023, ordinary bail procedure must be read with the PMLA and the savings clause in Section 531 of the BNSS. The commencement of the BNSS does not repeal or dilute the special proviso in Section 45.

A structured method for deciding an application

A reasoned order can proceed through six questions. Does the applicant fall within one or more statutory categories? What evidence establishes age, sex, health or alleged value? Does the proviso remove the need to satisfy the twin conditions on these facts? What ordinary bail risks are proved rather than presumed? Can tailored conditions control those risks? Do custody length and the realistic trial timetable independently engage Article 21?

This structure gives genuine operation to the proviso while preserving judicial control. It also makes appellate review possible because the reasons for granting or refusing statutory indulgence remain visible.

Concluding assessment

The first proviso to Section 45 represents a deliberate legislative judgment that certain personal circumstances and lower-value allegations justify a less rigid route to bail. Kalvakuntla Kavitha confirms that courts cannot narrow an express category by adding qualifications such as vulnerability, lack of education or social disadvantage.

At the same time, the proviso says “may”, not “shall”. The correct approach is individualised and reasoned: recognise the statutory protection, dispense with the twin conditions where it applies, assess genuine risks under ordinary bail law, consider constitutional delay separately, and use proportionate conditions wherever they can protect the proceeding. That approach respects both the text of the PMLA and the constitutional presumption of liberty before conviction.

Official primary sources

Supreme Court of India, Kalvakuntla Kavitha v Directorate of Enforcement, Criminal Appeals arising from SLP (Crl.) Nos. 10778 and 10785 of 2024, 2024 INSC 632, decided 27 August 2024, especially paragraphs 10–17 and 19–31: https://api.sci.gov.in/supremecourt/2024/35524/35524_2024_3_19_55112_Judgement_27-Aug-2024.pdf

Prevention of Money-laundering Act, 2002, Sections 2(1)(u), 3 and 45: https://www.indiacode.nic.in/handle/123456789/15402

Juvenile Justice (Care and Protection of Children) Act, 2015: https://www.indiacode.nic.in/handle/123456789/2148

Bharatiya Nagarik Suraksha Sanhita, 2023, including Section 531: https://www.indiacode.nic.in/handle/123456789/20099

Disclaimer: This article provides general legal information and does not constitute legal advice.

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