ED can’t arrest PMLA accused without court’s nod after filing of complaint, rules Supreme Court

Satya Prakash

New Delhi, May 16

A money-laundering accused not arrested by the Enforcement Directorate during the probe can’t be arrested after the special court has taken cognisance of the probe agency’s complaint (charge sheet) and has issued summons to him under the Prevention of Money Laundering Act (PMLA), 2002, the Supreme Court ruled on Thursday.

A Bench led by Justice AS Oka says if the ED wanted the custody of such an accused, it will have to formally apply and seek permission of the special court which must hear the accused and then pass an order recording brief reasons satisfying that custodial interrogation was needed.

“While hearing the application, the court may permit custody only if it’s satisfied that custodial interrogation is required even though the accused was never arrested under Section 19 of the PMLA,” said the Bench which also included Justice Ujjal Bhuyan.

The verdict came on a petition filed by one Tarsem Lal challenging a Punjab and Haryana High Court order in a PMLA case against him. The high court had dismissed his anticipatory bail plea, saying he didn’t satisfy one of the conditions under Section 45 of the PMLA.

Section 45 the PMLA requires the prosecutor to be given an opportunity to oppose the bail plea and says that the court can grant bail to an accused only if it’s satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

The legal question before the top court was if an accused in a PMLA case was required to meet the stringent twin-test for grant of bail even when the special court considers bail after taking cognisance of a money-laundering offence.

The Bench examined if the execution of the bond by an accused under Section 88 of the CrPC after his appearance before the court would amount to applying for bail to make twin conditions of bail under Section 45 of the PMLA applicable.

The Bench made it clear that in cases where the accused has appeared before the special court in responses to summons issued to him after filing of the ED complaint he need not satisfy the stringent twin test for grant of bail under Section 45 the PMLA that made it difficult for accused persons to get bail in money-laundering cases.

Noting that a bond furnished in terms of Section 88 of the CrPC was only an undertaking, the top court said an order accepting bond didn’t amount to grant of bail and, therefore, the twin conditions of Section 45 of the PMLA were not applicable in such a case.

“If the accused appears before the special court by summons, it can’t be treated that he is in custody…He is not required to apply for bail, and thus twin conditions of Section 45 of the PMLA are not applicable,” it said.