The Aryavarth Express
Agency (New Delhi): On Thursday, the Supreme Court ruled that the Enforcement Directorate (ED) cannot arrest an accused under Section 19 of the Prevention of Money Laundering Act (PMLA) after a special court has taken cognizance of the complaint.
A bench comprising Justices Abhay S Oka and Ujjal Bhuyan stated that when an accused appears in court following a summons, the ED must apply to the court for custody. The bench emphasized that once cognizance is taken of the offense under Section 4 of the PMLA, based on a complaint under Section 44(1)(b), the ED loses the power to arrest the accused under Section 19.
The court clarified that an accused who appears before the court in response to a summons is not considered to be in custody and thus does not need to apply for bail. The stringent conditions of Section 45 of the PMLA, which require the court to be convinced of the accused’s innocence and low risk of reoffending before granting bail, do not apply in these cases.
The court criticized the practice of some special courts under the PMLA, which take the accused into custody after they appear in response to a summons. Such practices, it said, are illegal and violate the right to liberty guaranteed by Article 21 of the Constitution. If the ED seeks custody of the accused for further investigation after they have appeared in response to a summons, it must apply to the special court for custody.
The Supreme Court directed that once a complaint is filed, it will be governed by Sections 200 to 205 of the CrPC, as these provisions are not inconsistent with the PMLA. It also stated that courts should issue a summons rather than a warrant if the accused has not been arrested by the ED before the complaint is filed. Even when the accused is on bail, a summons must be issued.
The court added that the special court can require the accused to furnish a bond and can grant exemptions from personal appearance if sufficient cause is shown. If the accused fails to appear after a summons is served, the special court can issue a warrant, starting with a bailable warrant and escalating to a non-bailable warrant if necessary.
The Supreme Court’s ruling clarifies that the ED must follow legal procedures and respect the rights of the accused, ensuring that arrests are made only when justified and necessary for further investigation.
