Women Accused under PMLA: Section 45 Twin Conditions Inapplicable, Yet Bail Remains Discretionary (No Sub-classification Among Women)

1) Introduction

In SURABHI @ SURBHI DUHAN v. DIRECTORATE OF ENFORCEMENT (Punjab & Haryana High Court, decided on 07-08-2026), the petitioner (a 29-year-old woman) sought regular bail in an Enforcement Directorate (ED) case registered via ECIR/CDZO-I/17/2025 dated 18.09.2025 under the Prevention of Money Laundering Act, 2002 (PMLA), with a prosecution complaint filed on 27.01.2026.

The ED alleged that the petitioner, in connivance with co-accused (including Mahesh Chandrashekhar Shetye and her brother Rishabh Duhan), was a key participant in operating an allegedly illegal transnational cyber-fraud call centre (targeting U.S. citizens), receiving and layering proceeds of crime through hawala and bank accounts, and integrating funds into assets. The alleged proceeds were stated to be around ₹25 crores, with ED claiming the petitioner’s possession/benefit at approximately ₹8–9 crores and additional alleged absconded cash.

The core legal issue was the bail standard for a “woman” accused under PMLA, specifically whether she must satisfy the “twin conditions” under Section 45(1)(ii) PMLA, and how discretion under the proviso to Section 45(1) should be exercised.

2) Summary of the Judgment

  • The Court held that, because the petitioner is a woman, the rigours of Section 45 “twin conditions” do not apply to her bail request by virtue of the first proviso to Section 45(1) PMLA.
  • However, the proviso is enabling and discretionary—it does not create an automatic right to bail; the Court must still apply ordinary bail principles (risk of absconding, witness tampering, custody period, stage of trial, etc.).
  • On facts, bail was granted primarily due to: (i) custody of over 7 months, (ii) complaint already filed (investigation substantially complete), (iii) trial at pre-cognizance stage with 73 witnesses and 111 documents (6728 pages), making early conclusion unlikely, and (iv) lack of tangible material indicating flight risk or witness influence, especially where evidence was largely documentary/electronic.
  • Bail was granted with extensive conditions, including passport deposit, monthly affidavit of non-involvement in new offences, and a requirement to furnish a bank guarantee/FDR/demand draft of ₹20 lakhs, among others.

3) Analysis

A) Precedents Cited (and How They Shaped the Decision)

  1. Prahlad Singh Bhati v. NCT, Delhi and another, (2001) 4 Supreme Court Cases 280

    The High Court relied on this authority to underscore that the “woman” proviso in bail provisions is not mandatory. It is an enabling provision permitting bail even where otherwise restrictive standards might operate, but it does not compel release. This became central to the Court’s conclusion that Section 45’s proviso removes the twin-conditions barrier but does not guarantee bail.

  2. Kumar Antil v. Central Bureau of Investigation and another, (2022) 10 Supreme Court Cases 51

    The Court drew from Kumar Antil’s discussion of the proviso to Section 437 CrPC to emphasize judicial “sensitivity” toward women while confirming that the proviso must be considered as a factor rather than treated as an unconditional entitlement. This supported the Court’s approach: apply benevolence, but through reasoned discretion.

  3. Chaurasia v. Directorate of Enforcement, (2024) 6 Supreme Court Cases 401

    This precedent was used in two ways: (i) to reinforce that “woman/sick/infirm” bail provisos are welfare-oriented and deserve purposive consideration, and (ii) to caution that such provisos are not to be applied mechanically; courts must weigh facts, including the accused’s role and risks. The High Court extended that reasoning to the PMLA context.

  4. Directorate of Enforcement v. Preeti Chandra, 2023 SCC OnLine SC 930

    Preeti Chandra directly informed the Court’s understanding of Section 45’s proviso: the word “may” indicates discretion, not compulsion, and courts must be mindful that educated and well-placed women may also be active participants in economic offences. The High Court adopted this caution while still holding that the proviso applies to “woman” as a class.

  5. Kalvakuntla Kavitha v. Direc SC 2269; has held as under: (as cited in the judgment text)

    The Court extracted the Supreme Court’s formulation that the proviso allows release of women without satisfying the twin conditions, and that denial of the benefit (where applicable) requires specific reasons. This supported the High Court’s core legal conclusion: a woman accused is exempt from Section 45’s twin-conditions burden, while the court must still give a reasoned bail decision based on ordinary considerations.

  6. Bala @ Shashi Bala Singh v. Directorate of Enforcement, Criminal Appeal No.212 of 2025, decided on 15.01.2025

    The High Court used this decision to align PMLA practice with the procedural posture of bail under Section 439 CrPC / corresponding BNSS provisions once the twin conditions do not apply, i.e., the court should treat it as a normal bail assessment with the “woman” proviso as an enabling factor.

B) Legal Reasoning

The judgment’s doctrinal contribution lies in its structured reconciliation of: (i) PMLA’s stringent bail regime under Section 45(1) (twin conditions), and (ii) the first proviso granting a special bail consideration to a woman.

1. The proviso’s effect: exemption from twin conditions, not exemption from bail principles

The Court held that for a woman, Section 45’s twin conditions are inapplicable. Yet, the proviso only lifts the statutory barrier; it does not erase the conventional bail framework. Therefore, the Court still examined custody duration, stage of trial, risk of absconding, and potential witness influence.

2. “May” vs “shall”: discretion is preserved

Relying on the statutory language and Supreme Court authorities, the Court reasoned that the proviso uses “may be released” and therefore is directory/enabling. Bail is not automatic; it must be justified on the facts.

3. No sub-classification among women for applying the proviso

A significant proposition in the judgment is its rejection of judicially-created sub-categories: the statute uses the term “woman” without qualification, so courts cannot carve out exceptions (e.g., educated/professional women) for deciding whether the proviso applies. However, such factors remain relevant to how discretion is exercised on merits.

4. Application to facts: custody + delayed trial + low demonstrated risk

The Court granted bail because continued incarceration would become disproportionately punitive where: (i) investigation was complete and complaint filed, (ii) evidence was largely documentary/electronic already in ED custody, (iii) trial was unlikely to conclude soon due to volume of witnesses/documents, and (iv) ED did not place tangible material showing that the petitioner would abscond or influence witnesses if released.

C) Impact

  • Clarifies the operational meaning of Section 45’s first proviso: for women accused under PMLA, courts should not demand satisfaction of the twin conditions, but must still conduct a full discretionary bail assessment on ordinary parameters.
  • Constrains “policy arguments” from narrowing the proviso: courts should not deny applicability by creating sub-classes of women; instead, they must decide grant/refusal with reasoned findings on role, risk, and case-specific factors.
  • Encourages structured bail orders in PMLA: the judgment exemplifies detailed, compliance-heavy conditions (passport deposit, monthly affidavit, non-tampering stipulations, and financial security), potentially becoming a template for future PMLA bail orders.
  • Signals “delay and volume” as powerful factors: large witness lists, voluminous records, and pre-cognizance posture can tilt discretion toward bail, especially when custody is already substantial and further interrogation is not shown to be necessary.

4) Complex Concepts Simplified

“Twin conditions” (Section 45 PMLA)
Normally, to get bail under PMLA, the court must believe (i) there are reasonable grounds that the accused is not guilty, and (ii) the accused is not likely to commit an offence while on bail. These are stricter than ordinary bail rules.
First proviso to Section 45(1) PMLA
It creates a special category (including a woman) for whom the twin conditions need not be satisfied. But the court still decides bail on discretion.
“Proceeds of crime” (POC)
Money/assets allegedly derived or obtained from criminal activity (scheduled offences). Laundering typically involves disguising its illegal origin.
Placement, layering, integration
Stages often used to describe laundering: introducing illegal cash into the financial system (placement), moving it through transactions/accounts (layering), and presenting it as legitimate (integration).
Hawala
An informal value transfer system operating outside regular banking channels, often alleged in laundering cases to move funds covertly.
Pre-cognizance stage
The stage before the trial court formally takes cognizance/frames the process in a manner that pushes the case to substantive trial stages; delays here can be relevant to bail because trial completion is not imminent.

5) Conclusion

This decision crystallizes a practical rule for PMLA bail: for a woman accused, Section 45’s twin conditions do not apply, but bail remains discretionary and must be assessed on standard considerations like custody period, trial delay, flight risk, witness tampering, and the nature of evidence. The Court also affirms that the proviso’s applicability cannot be narrowed by judicial sub-classifications among women; any denial must rest on case-specific reasons.

On the facts, prolonged custody, completed investigation, voluminous evidence and a distant trial horizon—combined with the absence of concrete risk indicators—justified release on stringent conditions, reinforcing the principle that pre-trial detention should not become punishment, even within PMLA’s stringent enforcement landscape.