“Once cognisance is taken of the offence punishable under Section 4 of PMLA, the special court is seized of the matter.After cognisance is taken, ED officials cannot exercise the power of arrest of the accused,” a bench of Justices A S Oka and Ujjal Bhuyan said in what could disarm ED of the special powers it enjoys under Section 45 of PMLA.
Writing the judgment, Justice Oka said once the special court takes cognisance, ED loses the power to arrest the accused, who in turn cannot apply for anticipatory bail. Accepting arguments of senior advocate Sidharth Luthra, who appeared for accused persons not arrested by ED in a PMLA case and whose anticipatory bail pleas were rejected by high court, the bench said if an accused was not arrested till the filing of the complaint by ED, then the special court would only issue summons to him and not an arrest warrant at the first instance.
If ED wants custody of the accused who appears following summons, the agency will have to apply to the special court, which would pass appropriate orders with reasons after hearing the accused, SC said.
Luthra pointed out that certain special courts took the accused into custody after they appeared pursuant to summons issued, forcing them to apply for anticipatory bail.
The bench said, “Such a practice, if followed by some special courts, is completely illegal as it may offend the right to liberty guaranteed under Article 21 of the Constitution.”
Significantly, SC said, “If the accused appears before the special court pursuant to 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 the accused to furnish bond to ensure he appears before the court on proceeding dates.”