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SUPREME COURT OF INDIA
ABHAY S. OKA, UJJAL BHUYAN, JJ.
Tarsem Lal – Appellant
Versus
Directorate of Enforcement Jalandhar Zonal Office – Respondent
Criminal Appeal Nos. 2608, 2609, 2610, 2611, 2612, 2613, 2614, 2615 of 2024, Arising Out of Special Leave Petition (Crl.) Nos. 121, 191, 330, 698, 728, 743, 969, 3928 of 2024
Decided On : 16-05-2024
(A) Prevention of Money Laundering Act, 2002 – Section 44(1)(b) – Criminal Procedure Code, 1973 – Sections 88 and 200 to 205 and 437 – Anticipatory bail – Denial of – While taking cognizance, Special Court has discretion to issue either a summons or warrant – Complaint under Section 44(1)(b) of PMLA will be governed by Sections 200 to 204 of Cr.P.C. – When accused is on bail, while issuing process, Special Court will have to issue only a summons – When accused is granted bail in same case, it is not necessary to arrest him after taking cognizance – If such an accused does not remain present after service of summons without seeking exemption, Special Court can always issue warrant to secure his presence – Section 437 will not apply when accused appears before the Special Court after summons is issued on a complaint under Section 44 (1)(b) of PMLA – Object of issuing summons is to secure accused presence before Court – It is not issued for taking accused in custody – Section 88 is in no manner inconsistent with provisions of PMLA – Section 88 will apply after filing of a complaint under Section 44(1)(b) of PMLA – If Section 88 is to apply even before a summons is issued or served upon a complaint, there is no reason why it should not apply after service of summons – When accused appears before Special Court under a summons issued on complaint, if he offers to submit bonds in terms of Section 88, there is no reason for Special Court to refuse or decline to accept bonds – Executing a bond will aid Special Court in procuring accused presence during trial – Order accepting bonds under Section 88 from accused does not amount to grant of bail. (Paras 7, 8, 10, 13 and 15)
(B) Criminal Procedure Code, 1973 – Section 205 – Prevention of Money Laundering Act, 2002 – Section 44(1)(b) – Dispensing with personal attendance of accused – Section 205 empowers Court to grant exemption only when summons is issued – If an accused is in custody, no occasion arises for Court to dispense with personal attendance of accused. (Para 11)
(C) Prevention of Money Laundering Act, 2002 – Sections 4 and 44(1)(b) – Arrest of accused – Once cognizance is taken of offence punishable under Section 4 of PMLA, Special Court is seized of the matter – After cognizance is taken, ED and other authorities named in Section 19 cannot exercise power of arrest of accused shown in complaint – Accused shown in Complaint are under jurisdiction of Special Court dealing with complaint – Therefore, after cognizance of complaint under Section 44(1)(b) of PMLA is taken by Court, ED and other authorities named in Section 19 are powerless to arrest accused named in complaint – In such a case, apprehension that ED will arrest such accused by exercising powers under Section 19 can never exist – If ED wants custody of accused who appears after service of summons for conducting further investigation in same offence, ED will have to seek custody of accused by applying to Special Court – When Special Court deals with application for cancellation of a warrant, Special Court is not dealing with application for bail – Section 45(1) will have no application to such application. (Paras 20 and 23)
Facts of the case:
Appellants are accused in complaints under Section 44 (1) (b) of Prevention of Money Laundering Act, 2002. Appellants have been denied benefit of anticipatory bail by impugned orders. These are cases where appellants did not appear before Special Court after summons were served to them.
Findings of Court:
Appellants shall appear before concerned Special Court within one month from today and shall file undertaking before Special Court that they shall regularly and punctually appear before Special Court on the dates fixed unless their appearance is specifically exempted by exercise of powers under Section 205 of Cr.P.C.
Result : Appeals allowed.
1. Leave granted.
FACTUAL ASPECTS
2. Since the issues involved are common and very little turns on facts, we broadly refer to the factual aspects. The appellants are the accused in complaints under Section 44 (1) (b) of the Prevention of Money Laundering Act, 2002 (for short ‘the PMLA’). The appellants have been denied the benefit of anticipatory bail by the impugned orders. We are dealing with the cases of the accused who were not arrested after registration of the Enforcement Case Information Report (ECIR) till the Special Court took cognizance under the PMLA of an offence punishable under Section 4 of the PMLA. The cognizance was taken on the complaints filed under Section 44 (1)(b). These are the cases where the appellants did not appear before the Special Court after summons were served to them. The Special Court issued warrants for procuring their presence. After the warrants were issued, the appellants applied for anticipatory bail before the Special Court. The applications were rejected. Unsuccessful accused have preferred these appeals since the High Court has turned down their prayers. This Court, by interim orders, has protected the appellants from arrest.
SUBMISSIONS
3. The learned senior counsel, Mr. Sidharth Luthra, appearing for the appellants in Criminal Appeal @ Special Leave Petition (Crl.) No. 121 of 2024 and the learned counsel representing other appellants have made detailed submissions. We are summarising their submissions as follows:
(a) The power to arrest vesting in the officers of the Directorate of Enforcement (for short ‘the ED’) under Section 19 of the PMLA cannot be exercised after the Special Court takes cognizance of the offence punishable under Section 4 of the PMLA.
(b) If an accused appears pursuant to the summons issued by the Special Court, there is no reason to issue a warrant of arrest against him or to take him into custody.
(c) There is nothing inconsistent between Section 88 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) and the provisions of the PMLA. On a conjoint reading of Sections 4 and 5 of the Cr.P.C. with Section 65 of the PMLA, it is apparent that all the provisions of the Cr.P.C. would apply to proceedings before the Special Court from the stage of filing a complaint under Section 44 (1)(b). Only those provisions of the Cr.P.C. that are inconsistent with the specific provisions of the PMLA will not apply. Reliance was placed upon the decision of this Court in the case of Ashok Munilal Jain and Another vs. Assistant Director, Directorate of Enforcement, (2018) 16 SCC 158. As there is no inconsistency between Section 88 of the Cr.P.C. and the provisions of the PMLA if, after service of summons, the accused offers to furnish bonds for appearance in terms of Section 88 of the Cr.P.C. the Special Court should normally accept the bonds. After furnishing the bonds, if the accused fails to appear before the Special Court, recourse can always be taken by the Special Court to Section 89 by issuing a warrant for procuring the presence of the accused before the Special Court.
(d) Once cognizance is taken based on a complaint, the Special Court cannot exercise the power of remand under Section 167 (2) of the CrPC. After cognizance is taken, the power can be exercised at the highest under Section 309 (2) of the Cr.P.C.
(e) In view of this Court's decision in Satender Kumar Antil vs. Central Bureau of Investigation and Another, (2021) 10 SCC 773 as clarified in the subsequent decision in Satender Kumar Antil v. Central Bureau of Investigation and Anr.3, when during the investigation, the prosecution does not seek the custody of the accused, after the Court takes cognizance, there is no need to arrest the accused.
(f) When the accused is not arrested during the investigation, after he appears before the Special Court pursuant to a summons, it is not necessary for him to apply for bail. The Special Court can always take recourse to Section 88 of the Cr.P.C. In such a situation, i
(1) Section 88 of Cr.P.C. is in no manner inconsistent with provisions of PMLA – Section 88 will apply after filing of a complaint under Section 44(1)(b) of PMLA – Order accepting bonds under Section....
Point of Law - For making an application in terms of section 439 of code, a person has to be in custody and section 438 of the code deals with direction for grant of bail to person apprehending arres....
Point of Law : For making an application in terms of section 439 of code, a person has to be in custody and section 438 of the code deals with direction for grant of bail to person apprehending arres....
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Anticipatory bail under Section 438 cannot shield an accused from custodial detention ordered by the court post-summons, distinguishing between police arrest and court-directed custody.
Offences punishable under Section 4 of the PMLA Act must be tried only by Special Courts designated under Section 43(1) of the PMLA Act, and the Central Government has the power to designate such Cou....
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