Tarsem Lal vs Directorate of Enforcement Jalandhar Zonal Office

Prevention of Money Laundering Act, 2002 – Code of Criminal Procedure, 1973 – s.70 – If the accused does not appear after summons are served or does not appear on a subsequent date, whether the Special Court can issue warrant within its power: Held: If the accused does not appear after a summons is served or does not appear on a subsequent date, the Special Court will be well within its powers to issue a warrant in terms of Section 70 of the CrPC – Initially, the Special Court should issue a bailable warrant – If it is not possible to effect service of the bailable warrant, then the recourse can be taken to issue a non-bailable warrant. [Para 21(e)]

Prevention of Money Laundering Act, 2002 – Code of Criminal Procedure, 1973 – s.88 – Whether the order accepting bonds u/s. 88 of the CrPC amounts to grant of bail: Held: A bond furnished according to Section 88 is only an undertaking by an accused who is not in custody to appear before the Court on the date fixed – Thus, an order accepting bonds under Section 88 from the accused does not amount to a grant of bail. [Para 21(f)]

Prevention of Money Laundering Act, 2002 – Code of Criminal Procedure, 1973 – s.89 r/w. s.70 – In a case where the accused has furnished bonds u/s. 88 of the CrPC, if he fails to appear on subsequent dates, whether the Special Court has power to issue warrant directing that the accused shall be arrested and produced before the Special Court and if such a warrant is issued, will it be open for the accused to apply for cancellation of the warrant by giving an undertaking to appear on all dates fixed:

Held: In a case where the accused has furnished bonds under Section 88 of the CrPC, if he fails to appear on subsequent dates, the Special Court has the powers under Section 89 read with Sections 70 of the CrPC to issue a warrant directing that the accused shall be arrested and produced before the Special Court; If such a warrant is issued, it will always be open for the accused to apply for cancellation of the warrant by giving an undertaking to the Special Court to appear before the said Court on all the dates fixed by it – While cancelling the warrant, the Court can always take an undertaking from the accused to appear before the Court on every date unless appearance is specifically exempted – When the ED has not taken the custody of the accused during the investigation, usually, the Special Court will exercise the power of cancellation of the warrant without insisting on taking the accused in custody provided an undertaking is furnished by the accused to appear regularly before the Court – When the Special Court deals with an application for cancellation of a warrant, the Special Court is not dealing with an application for bail – Hence, Section 45(1) of PMLA will have no application to such an application. [Para 21(g)] Prevention of Money Laundering Act, 2002 – Code of Criminal Procedure, 1973 – s.82, s.83 and s.88 –When a warrant of arrest has been issued on account of non-appearance or proceedings u/s. 82 and/or s.83 of the CrPC, whether the accused can be let off by taking bond u/s.88 of the CrPC:

Held: When an accused appears pursuant to a summons, the Special Court is empowered to take bonds under Section 88 of the CrPC in a given case – However, it is not mandatory in every case to direct furnishing of bonds – However, if a warrant of arrest has been issued on account of non-appearance or proceedings under Section 82 and/or Section 83 of the CrPC have been issued against an accused, he cannot be let off by taking a bond under Section 88 of the CrPC, and the accused will have to apply for cancellation of the warrant. [Para 21(h)]

Prevention of Money Laundering Act, 2002 – s.19 and s.44(1)

(b) – Code of Criminal Procedure, 1973 – Whether ED and its officers have power u/s.19 to arrest a person shown as a accused in the complaint after cognizance is taken of the offence punishable u/s. 4 of the PMLA based on complaint u/s. 44(1)(b):

Held: After cognizance is taken of the offence punishable under Section 4 of the PMLA based on a complaint under Section 44 (1)(b), the ED and its officers are powerless to exercise power under Section 19 to arrest a person shown as an accused in the complaint. [Para 21(i)]

Prevention of Money Laundering Act, 2002 – s.19 – What if the ED wants custody of the accused who appears after service of summons for conducting further investigation in the same offence:

Held: If the ED wants custody of the accused who appears after service of summons for conducting further investigation in the same offence, the ED will have to seek custody of the accused by applying to the Special Court – After hearing the accused, the Special Court must pass an order on the application by recording brief reasons – While hearing such an application, the Court may permit custody only if it is satisfied that custodial interrogation at that stage is required, even though the accused was never arrested under Section 19 – However, when the ED wants to conduct a further investigation concerning the same offence, it may arrest a person not shown as an accused in the complaint already filed under Section 44(1)(b), provided the requirements of Section 19 are fulfilled. [Para 21(j)]

Prevention of Money Laundering Act, 2002 – s.44(1)(b) – Code of Criminal Procedure, 1973 – s.88 and s. 205 – Appellants were accused in complaints u/s.44(1)(b) of the PMLA – The Special Court took cognizance under PMLA – In the instant case, the appellants did not appear before the Special Court after summons were served to them – The Special Court issued warrants for procuring their presence – Appellants were denied anticipatory bail by the Special Court: Held: In the instant case, the warrants were issued to the appellants as they did not appear before the Special Court after the service of summons – The appellants could have applied for cancellation of warrants issued against them as the warrants were issued only to secure their presence before the Special Court – Instead of applying for cancellation of warrants, the appellants applied for anticipatory bail – All of them were not arrested till the filing of the complaint and have co-operated in the investigation – Therefore, it is proposed to direct that the warrants issued against the appellants shall stand cancelled subject to the condition of the appellants giving undertakings to the respective Special Courts to regularly and punctually attend the Special Court on all dates fixed unless specifically exempted by the exercise of powers under Section

205 of the CrPC – The second condition will be furnishing bonds to the Special Court in terms of Section 88 of the CrPC. [Para 22]