Ashutosh Kumar v. The Union of India

CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner :- For the UOI/E.D. :- --- Mr. Indrajit Sinha, Advocate Mr. Ankit Vishal, Advocate Mr. Rishav Kumar, Advocate Mr. A.K. Das, Advocate ---- 13/09.08.2024 Heard the learned counsel for the petitioners as well as the learned counsel for the Union of India/Enforcement Directorate (E.D).

2. The petitioners are apprehending their arrest in connection with ECIR Case No.02/2024 for the alleged offence under section 3 of the Prevention of Money Laundering Act, 2002 (hereinafter to be referred to as ‘PML Act’, for short) punishable under section 4 of the PML Act, pending in the court of learned Special Judge, CBI cum Special Judge, under PMLA, Ranchi. --1-- A.B.A. No. 2939 of 2024

3. Mr. Indrajit Sinha, the learned counsel for the petitioners submits that after filing of the complaint the learned Special Judge, PMLA, Ranchi by order dated 19.02.2024 has been pleased to take cognizance for the said offence under the PML Act against the petitioners. He submits that in course of investigation by the Enforcement Directorate (ED), the petitioners have cooperated investigation and during the investigation the petitioners have not been arrested and in view of that, the section 19 of PMLA role has already been over and this aspect of the matter has been considered by the Hon’ble Supreme Court in the case of Tarsem Lal v. Directorate of Enforcement, Jalandhar Zonal Office, 2024 SSC OnLine SC 971. He refers to paragraph no.23 and 25 of the said judgment which are quoted below: “23. Now, we summarise our conclusions as under: a) Once a complaint under Section 44 (1)(b) of the PMLA is filed, it will be governed by Sections 200 to 205 of the CrPC as none of the said provisions are inconsistent with any of the provisions of the PMLA; b) If the accused was not arrested by the ED till filing of the complaint, while taking cognizance on a complaint under Section 44(1)(b), as a normal rule, the Court should issue a summons to the accused and not a warrant. Even in a case where the accused is on bail, a summons must be issued; c) After a summons is issued under Section 204 of the CrPC on taking cognizance of the offence punishable under Section 4 of the PMLA on a complaint, if the accused appears before the Special Court pursuant to the summons, he shall not be treated as if he is in custody. Therefore, it is not necessary for him to apply for bail. However, the Special Court can direct in terms of Section 88 of the accused to furnish bond the CrPC; d) In a case where the accused appears pursuant to a summons before the Special Court, on a sufficient cause being shown, --2-- A.B.A. No. 2939 of 2024 the Special Court can grant exemption from personal appearance to the accused by exercising power under Section 205 of the CrPC; e) 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; f) 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; g) 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) will have no application to such an application; h) 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 --3-- A.B.A. No. 2939 of 2024 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; i) 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; and j) 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.

25. Hence, the appeals succeed, and we pass the following order: a) We set aside the anticipatory bail; impugned orders declining to grant b) We direct that warrants issued by the Special Courts against the appellants shall stand cancelled subject to the following conditions: i. The appellants shall appear before the concerned Special Court within one month from today and shall file an undertaking before the Special Court that they shall regularly and punctually appear before the Special Court on the dates fixed --4-- A.B.A. No. 2939 of 2024 unless their appearance is specifically exempted by the exercise of powers under Section 205 of the CrPC; and ii. The appellants shall furnish bonds in accordance with Section 88 of the CrPC to the satisfaction of the Special Court within one month from today. c) It is necessary to clarify that the warrants issued against the appellants shall be cancelled only if they make compliance as aforesaid within one month from today. To enable them to do so, the warrants shall not be executed against them for a period of one month from today; d) On the failure of the appellants to appear before the Special Court and to file undertakings and bonds within one month from today, it will be open for the Special Courts to issue warrants against the appellants; and e) After the warrants issued against the appellants are cancelled, the apprehension that they may be arrested will not survive. Hence, in view of what we have held in this judgment, it is unnecessary to consider the prayer for the grant of anticipatory bail.

4. Relying on the said judgment, he submits that in view of the said judgment, it has been followed later on by the Hon’ble Supreme Court in the case of Nalini Prusty v. Enforcement Directorate [Cr.Appeal No.3106 of 2024 (Arising out of S.L.P. (Criminal) No.6618 of 2024]. He submits that the petitioners are ready to move before the concerned court in light of the said judgement.

5. Mr. Das the learned counsel for Enforcement Directorate submits that allegation against the petitioners are serious and disproportionate assets have been found against the petitioners, however, he does not dispute the ratio of the judgment of the Hon’’ble Supreme Court in the case of Tarsem Lal v. Directorate of Enforcement, Jalandhar Zonal Office(supra).

6. In view of the above and considering the judgment of the --5-- A.B.A. No. 2939 of 2024 Hon’ble Supreme Court in the case of Tarsem Lal v. Directorate of Enforcement, Jalandhar Zonal Office(supra), the order dated

15.04.2024 passed in A.B.P. No.630 of 2024 is set-aside.

7. The petitioners are hereby directed to comply the directions of the Hon’ble Supreme Court in the case of Tarsem Lal v. Directorate of Enforcement, Jalandhar Zonal Office(supra) as disclosed in paragraph no.25 of the said judgment within two weeks and learned court will pass the order based on the judgment of Hon’ble Supreme Court in the case of Tarsem Lal(Supra)..

8. If the petitioners are not complying the direction issued by this order within the aforesaid period, and if they will not appear before the concerned court, this order will not apply upon them.

9. With the above observation and direction this petition is disposed of. SI/ ( Sanjay Kumar Dwivedi, J.) --6-- A.B.A. No. 2939 of 2024