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AMLEGALS / White Collar & PMLA / Bail under Section 45
Section 45 of the PMLA

The twin conditions are a threshold, not a wall

Bail under the PMLA is demanding, but it is granted on a properly built record. AMLEGALS frames Section 45 applications around the twin conditions and the statutory relaxations, before the Special Court and the High Court.

Strategic context

Meet the conditions on the record, not in the abstract

Section 45 raises the bar for bail in money-laundering cases. Where the prosecutor opposes release, the court must be satisfied that there are reasonable grounds to believe the accused is not guilty and that he is not likely to offend while on bail. The history of the provision — struck down in Nikesh Tarachand Shah (2017), reintroduced by amendment, and upheld in Vijay Madanlal Choudhary (2022) — means the twin conditions now firmly govern, and a bail application that does not engage them directly will not succeed.

Yet the conditions are a threshold, not a wall. They are met by working the actual record: the role attributed to the accused, the nature and strength of the material, the period already in custody, parity with co-accused, and the stage of trial. The proviso relaxations for the young, for women, for the sick and infirm, and for cases below the specified threshold are pressed where they apply. AMLEGALS builds Section 45 applications on these foundations before the Special Court and, where necessary, the High Court.

Workstreams

From custody to release

01

Custody and grounds review

Analysing the arrest, grounds and remand to frame the bail strategy.

02

Twin conditions

Building the application around reasonable grounds and the unlikelihood of further offence.

03

Statutory relaxations

Invoking the proviso relaxations for eligible categories where applicable.

04

Anticipatory bail

Advising on and pursuing pre-arrest protection where the stage permits.

05

Special Court and High Court

Pursuing bail before the Special Court and, on refusal, the High Court.

06

Conditions and compliance

Structuring workable bail conditions and ensuring continued compliance.

Answers

Frequently asked questions

01What are the twin conditions for bail under Section 45?

Section 45 of the Prevention of Money Laundering Act provides that, where the public prosecutor opposes bail, the court must be satisfied of two things before granting bail: that there are reasonable grounds for believing the accused is not guilty of the offence, and that he is not likely to commit any offence while on bail. These twin conditions are additional to the ordinary considerations for bail and raise the threshold the accused must meet.

02What happened in Nikesh Tarachand Shah and Vijay Madanlal Choudhary?

In Nikesh Tarachand Shah v Union of India (2017) the Supreme Court struck down the twin conditions as then framed as unconstitutional. Parliament reintroduced the conditions by amendment in 2018. In Vijay Madanlal Choudhary v Union of India (2022) the Supreme Court upheld the reintroduced Section 45, confirming that the twin conditions apply. The current position is therefore that the twin conditions govern bail under the PMLA.

03Are there relaxations to the twin conditions?

Yes. The proviso to Section 45 relaxes the twin conditions for certain categories — a person who is under the age of sixteen years, a woman, a person who is sick or infirm, and (within limits) a person accused where the amount involved is below a specified threshold. For these categories the court may direct release on bail without insisting on the twin conditions, though the ordinary considerations still apply.

04Do the twin conditions apply to anticipatory bail?

The rigour of Section 45 has been held to inform applications for anticipatory bail in PMLA matters as well, so an application for pre-arrest protection must engage with the twin conditions and the strength of the material. The strategy for anticipatory bail is distinct from regular bail and depends closely on the stage of the investigation and the material disclosed.

05What makes a strong Section 45 bail application?

A strong application addresses the twin conditions head-on — marshalling the material to show reasonable grounds that the accused is not guilty and is not likely to offend — while also engaging the ordinary factors of parity, period of custody, role attributed, flight risk and the stage of trial. Any applicable statutory relaxation is pressed. The application must be built on the actual record, not generalities.

06Does an initial discussion create a lawyer-client relationship?

No. No engagement is treated as accepted until conflicts, scope and terms are confirmed in writing.

Engage AMLEGALS

Request a bail assessment

Share the stage of custody and the material to receive a confidential preliminary assessment of the bail strategy.

Request a bail assessment

Business contact details are used only to respond to this request. No lawyer-client relationship arises until conflicts, scope and terms are agreed in writing.