Supreme Court To Consider Whether Power Of Arrest Under Section 19 PMLA Can Be Exercised Once Special Court Takes Cognizance Of Complaint Filed U/s. 44
The Supreme Court has recently made an observation that once cognizance of a complaint filed under Section 44 of the Prevention of Money Laundering Act, 2002 (PMLA Act) is taken by the Court, the power to arrest under Section 19 of the PMLA Act cannot be exercised. The Court has asked the counsel for the parties in the case to file brief submissions for further arguments on the point.
The Petitioner in the case approached the High Court of Punjab & Haryana under Section 438 Cr.P.C. seeking anticipatory bail. The High Court dismissed the Petition on grounds that one of the twin conditions under Section 45 of the PMLA was not complied with by the Petitioner i.e. should be reasonable grounds for believing that the person is not guilty of such offence. Aggrieved by the judgment, the Petitioner approached the Apex Court.
The Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan observed, “Prima facie, it appears to us that once cognizance of a complaint filed under Section 44 is taken by the Special Court under the Prevention of Money Laundering Act, 2002 (for short "the PMLA Act"), the power to arrest vesting under Section 19 of the PMLA Act cannot be exercised."
Advocate Harshit Sethi appeared on behalf of the Petitioner and ASG S.V. Raju appeared for Respondent.
In the present case, the Enforcement Directorate filed a complaint under Sections 409, 420, 465, 466, 467, 471 and 120-B of IPC and Section 7, 7-A of the Prevention of Corruption Act. The Petitioner was granted interim protection from arrest in January 2024 by the Apex Court which is continued till further orders.
The Court further said, "The question is, if pursuant to the summons issued by the Special Court, the accused appears before the Special Court whether he is required to apply for bail in terms of Section 437 of the Code of Criminal Procedure, 1973. If the answer to the said issue is in affirmative, the other question is whether such a bail plea will be governed by the twin conditions imposed by Section 45 of the PMLA Act. We, therefore, permit the parties to file brief submissions in writing not exceeding three pages and compilation of case law, if any.”
The High Court, while dismissing the plea, had observed, “An analysis of the pleadings and the response as well as arguments would lead to following outcome. Out of the twin conditions of Section 45 of the PMLA Act, first condition was complied with because the opportunity was given to the respondent to oppose the bail. Regarding condition no.2 that before this Court grants bail, there should be reasonable grounds for believing that the person is not guilty of such offence cannot be said to have been made by the petitioner as there is enough evidence of the petitioner taking the benefit of Rs.39.75 lacs by selling more land than the actual land in favour of Kulwinder Singh from whom he had taken Power of Attorney and he was continuously in touch with the main accused Varinder Pal Singh Dhoot.”
Accordingly, the matter is listed on April 9, 2024, before the Apex Court.
Cause Title: Tarsem Lal v. Directorate Of Enforcement Jalandhar Zonal Office
Appearances:
Petitioner: Advocates Harshit Sethi, Nikhil Jain, Nikilesh Ramachandran, Mansi Tripathi, Divya Jain, Rhail Mahajan, Shubham Seth, Anuj Panwar, Kamal Verma and Lovekesh Aggarwal.
Respondent: ASG S.V. Raju, Advocates Mukesh Kumar Maroria, Zoheb Hussain, Annam Venkatesh and Arkaj Kumar.
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