In New Delhi, the Supreme Court declared on Thursday that the Enforcement Directorate (ED) lacks authority to apprehend an individual subsequent to a court’s recognition of a grievance under Section 44 of the Prevention of Money Laundering Act (PMLA).
Presiding over the bench, Justice Abhay S Oka articulated that the defendant may be summoned by the court sans the necessity to fulfill the dual conditions of bail for his discharge.
The bench remarked, “If the defendant remained unarrested by the ED until the initiation of the grievance, typically, the court should issue a summons to the defendant rather than a warrant.”
“In a scenario where the defendant is on bail, summons ought to be issued. Subsequent to the issuance of summons under Section 204 of CrPC upon recognizing the offense… if the defendant presents before the special court pursuant to the summons, he shall not be deemed to be in custody. Hence, it is unnecessary for him to seek bail. Nevertheless, a special court possesses the authority to instruct the defendant to provide a bond…” the bench expounded.
Justice Oka, pronouncing the verdict on behalf of the bench, remarked that following the recognition of the offense punishable under Section 4 of the PMLA based on a grievance under Section 44, the ED and its officers lack jurisdiction to exercise powers under Section 19 to detain the individual identified as the defendant in the grievance.
He appended that should the ED seek custody of the defendant who appears post the service of summons for further investigation of the same offense, the ED must petition for custody of the defendant by applying to the special court. “Subsequent to hearing the defendant, the special court must adjudicate on the application after delineating concise justifications. While deliberating on the application, the court may authorize custody solely if it is convinced that custodial interrogation is imperative despite the defendant never having been arrested under Section 19,” Justice Oka stated. Elaborate judgment on the subject will be published subsequently.
The apex court’s decision arose from an inquiry: whether the execution of the bond by a defendant to manifest his presence before the court under Section 88 of CrPC would constitute an application for bail to trigger the twin conditions of bail under Section 45 of the PMLA, applicable.