TARSEM LAL versus DIRECTORATE OF ENFORCEMENT JALANDHAR ZONAL OFFICE
[2024] 6 S.C.R. 864, Supreme Court of India, 2024
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
* Author
[2024] 6 S.C.R. 864 : 2024 INSC 434
Tarsem Lal 
v. 
Directorate of Enforcement Jalandhar Zonal Office
(Criminal Appeal No. 2608 of 2024)
16 May 2024
[Abhay S. Oka* and Ujjal Bhuyan, JJ.]
Issue for Consideration
(a) Whether the complaint filed u/s.44(1)(b) of Prevention of Money 
Laundering Act, 2002 will be governed by sections 200 to 205 
of the CrPC; (b) If the accused was not arrested by the ED till 
the filing of the complaint, while taking cognizance on complaint 
u/s.44(1)(b), whether the Court should issue a summons to the 
accused or warrant; (c) After a summons are issued u/s. 204 of 
the CrPC on taking cognizance of the offence punishable u/s. 4 of 
the PMLA on a complaint, if accused appears before the Special 
Court, would he be treated as in custody and is it necessary for 
him to apply for bail; (d) In a case where the accused appears 
pursuant to a summons before the Special Court, whether the 
Special Court can grant exemption from personal appearance; 
(e) 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; (f) Whether the order accepting 
bonds u/s. 88 of the CrPC amounts to grant of bail; (g) 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; (h) 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; (i) 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); (j) What if the ED wants 
custody of the accused who appears after service of summons for 
conducting further investigation in the same offence.
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Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office
Headnotes
Prevention of Money Laundering Act, 2002 – s.44(1)(b) – Code 
of Criminal Procedure, 1973 – s. 200 to s.205 – Whether the 
complaint filed u/s.44(1)(b) of Prevention of Money Laundering 
Act, 2002 will be governed by sections 200 to 205 of the CrPC:
Held: 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. [Para 23(a)]
Prevention of Money Laundering Act, 2002 – s.44(1)(b) – If 
the accused was not arrested by the ED till the filing of the 
complaint, while taking cognizance on complaint u/s.44(1)(b), 
whether the Court should issue a summons to the accused 
or warrant:
Held: 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. [Para 21(b)]
Prevention of Money Laundering Act, 2002 – s.4 – Code of 
Criminal Procedure, 1973 – s. 204 – After a summons are 
issued u/s. 204 of the CrPC on taking cognizance of the offence 
punishable u/s. 4 of the PMLA on a complaint, if accused 
appears before the Special Court, would he be treated as in 
custody and is it necessary for him to apply for bail:
Held: 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 the accused 
to furnish bond in terms of Section 88 of the CrPC. [Para 21(c)]
Prevention of Money Laundering Act, 2002 – Code of Criminal 
Procedure, 1973 – s. 205 – In a case where the accused appears 
pursuant to a summons before the Special Court, whether the 
Special Court can grant exemption from personal appearance:
Held: In a case where the accused appears pursuant to a 
summons before the Special Court, on a sufficient cause being
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shown, the Special Court can grant exemption from personal 
appearance to the accused by exercising power under Section 
205 of the CrPC. [Para 21(d)]
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
[2024] 6 S.C.R. 
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Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office
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:
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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]
Case Law Cited
Yash Tuteja & Anr. v. Union of India & Ors. [2024] 4 SCR 
591  : 2024 INSC 301; Inder Mohan Goswami & Anr. v. State 
of Uttaranchal & Ors. [2007] 10 SCR 847 : (2007) 12 SCC 1;
[2024] 6 S.C.R. 
869
Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office
Pankaj Jain v. Union of India and Anr. [2018] 9 SCR 248 : (2018) 
5 SCC 743 – relied on.
Ashok Munilal Jain & Anr. v. Assistant Director, Directorate of 
Enforcement (2018) 16 SCC 158; Satender Kumar Antil v. Central 
Bureau of Investigation & Anr. (2021) 10 SCC 773; Satender 
Kumar Antil v. Central Bureau of Investigation and Anr. [2022] 10 
SCR 351 : (2022) 10 SCC 51; Vijay Madanlal Choudhary & Ors. 
v. Union of India & Ors. [2022] 6 SCR 382 : (2022) SCC OnLine 
SC 929 – referred to.
List of Acts
Prevention of Money Laundering Act, 2002; Code of Criminal 
Procedure, 1973.
List of Keywords
Section 44(1)(b) of Prevention of Money Laundering Act, 2002; 
Section 4 of Prevention of Money Laundering Act, 2002; Section 
19 of Prevention of Money Laundering Act, 2002; Section 200 to 
2005 of Code of Criminal Procedure, 1973; Section 88 of Code 
of Criminal Procedure, 1973; Section 89 of Code of Criminal 
Procedure, 1973; Cancellation of warrants; Furnishing bonds; 
Regular appearance in Special Court; Power to take bond for 
appearance; Arrest on breach of bond for appearance; Exemption 
from appearance.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2608 
of 2024
From the Judgment and Order dated 19.12.2023 of the High Court of 
Punjab & Haryana at Chandigarh in CRLM No. 47406 of 2023
With
Criminal Appeal Nos. 2609, 2610, 2611, 2612, 2613, 2614 and 2615 
of 2024
Appearances for Parties
Sidharth Luthra, Sr. Adv., Akbar Siddique, Sheezan Hashmi, Mihir 
Joshi, Aakash Dubey, Rahul Khare, Rajneesh Chuni, Parv K. 
Garg, Parwez Akhtar, Harsh Kumar Singh, Animesh Mishra, Javed
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Muzaffar, Malik Javed Ansari, Dr. Smriti Raturi Sharma, Siddharth R. 
Gupta, Sanjay Singh, Shantanu Sharma, Ms. Garvita Jain, Sankalp 
Kochhar, Siddhant Kochhar, Ms. Sakshi Banga, Ms. Amisha Devi, 
Mrigank Prabhakar, Ms. Sakshi Kakkar, Shakti Singh, Kartikey Dang, 
Rudraditya Khare, Sahir Seth, Harsh Tyagi, Harshit Sethi, Nikhil 
Jain, Rahil Mahajan, Ms. Mansi Tripathi, Manmeet Singh, Nikilesh 
Ramachandran, Lovekesh Aggarwal, Advs. for the Appellant.
S.V. Raju, A.S.G., Mukesh Kumar Maroria, Zoheb Hussain, Annam 
Venkatesh, Arkaj Kumar, Mrs. Rajeshwari Shankar, Advs. for the 
Respondent.
Judgment / Order of the Supreme Court
Judgment
Abhay S. Oka, J.
1.	
Leave granted. 
FACTUAL ASPECTS
2.	
Since the issues involved are common and very little turns on facts, 
we broadly refer to the factual aspects. The appellants are the accused 
in complaints under Section 44 (1)(b) of the Prevention of Money 
Laundering Act, 2002 (for short, ‘the PMLA’). The appellants have 
been denied the benefit of anticipatory bail by the impugned orders. 
We are dealing with the cases of the accused who were not arrested 
after registration of the Enforcement Case Information Report (ECIR) 
till the Special Court took cognizance under the PMLA of an offence 
punishable under Section 4 of the PMLA. The cognizance was taken 
on the complaints filed under Section 44 (1)(b). These are the cases 
where the appellants did not appear before the Special Court
after 
summons were served to them. The Special Court issued warrants 
for procuring their presence. After the warrants were issued, the 
appellants applied for anticipatory bail before the Special Court. The 
applications were rejected. Unsuccessful accused have preferred 
these appeals since the High Court has turned down their prayers. 
This Court, by interim orders, has protected the appellants from arrest.
SUBMISSIONS
3.	
The learned senior counsel, Mr Sidharth Luthra, appearing for the 
appellants in Criminal Appeal @ Special Leave Petition (Crl.) No.121 
of 2024 and the learned counsel representing other appellants have
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Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office
made detailed submissions. We are summarising their submissions 
as follows: 
(a)	 The power to arrest vesting in the officers of the Directorate of 
Enforcement (for short, ‘the ED’) under Section 19 of the PMLA 
cannot be exercised after the Special Court takes cognizance 
of the offence punishable under Section 4 of the PMLA; 
(b)	 If an accused appears pursuant to the summons issued by the 
Special Court, there is no reason to issue a warrant of arrest 
against him or to take him into custody;
(c)	
There is nothing inconsistent between Section 88 of the Code 
of Criminal Procedure, 1973 (for short, ‘the CrPC’) and the 
provisions of the PMLA. On a conjoint reading of Sections 4 
and 5 of the CrPC with Section 65 of the PMLA, it is apparent 
that all the provisions of the CrPC would apply to proceedings 
before the Special Court from the stage of filing a complaint 
under Section 44 (1)(b). Only those provisions of the CrPC that 
are inconsistent with the specific provisions of the PMLA will not 
apply. Reliance was placed upon the decision of this Court in 
the case of Ashok Munilal Jain & Anr. v. Assistant Director, 
Directorate of Enforcement1. As there is no inconsistency 
between Section 88 of the CrPC and the provisions of the 
PMLA if, after service of summons, the accused offers to furnish 
bonds for appearance in terms of Section 88 of the CrPC, the 
Special Court should
normally accept the bonds. After furnishing 
the bonds, if the accused fails to appear before the Special 
Court, recourse can always be taken by the Special Court to 
Section 89 by issuing a warrant for procuring the presence of 
the accused before the Special Court; 
(d)	 Once cognizance is taken based on a complaint, the Special 
Court cannot exercise the power of remand under Section 167 
(2) of the CrPC. After cognizance is taken, the power can be 
exercised at the highest under Section 309 (2) of the CrPC; 
(e)	 In view of this Court’s decision in Satender Kumar Antil 
v. Central Bureau of Investigation & Anr.2, as clarified 
1	
(2018) 16 SCC 158
2	
(2021) 10 SCC 773
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in the subsequent decision in Satender Kumar Antil v. 
Central Bureau of Investigation and Anr.3, when during the 
investigation, the prosecution does not seek the custody of the 
accused, after the Court takes cognizance, there is no need 
to arrest the accused;
(f)	
When the accused is not arrested during the investigation, after 
he appears before the Special Court pursuant to a summons, 
it is not necessary for him to apply for bail. The Special Court 
can always take recourse to Section 88 of the CrPC. In such 
a situation, if the ED is seeking remand by taking recourse 
under Section 309(2) of the CrPC, it will be incumbent upon 
the Special Court to give an opportunity of being heard to the 
accused and pass an order recording reasons in brief; 
(g)	 As held in the second case of Satender Kumar Antil 3, Section 
170 of the CrPC is merely a procedural compliance. It is 
submitted that in case of an offence punishable under the PMLA, 
a complaint under Section 44 (1)(b) partakes the character of 
a report/chargesheet under Section 173 of the CrPC. Once 
cognizance is taken based on the complaint, the authorities 
cannot invoke Section 19 of the PMLA and arrest an accused 
who has not been arrested till the date of the Special Court 
taking cognizance. If they require custody of the accused for 
further investigation to enable them to file a supplementary 
complaint, the officers of the ED will have to apply to the
Special 
Court for a grant of custody; and 
(h)	 When an accused is not arrested until the filing of the complaint 
and when an accused appears pursuant to summons before 
the Special Court, Section 437 of the CrPC will not apply, and 
it is not necessary for the accused to seek bail. 
4.	
The learned Additional Solicitor General Mr S V Raju submitted that: 
(a)	 Once an accused appears before the Special Court, he is 
deemed to be in its custody. Though Section 437 of the CrPC 
may not apply, the accused must apply for bail under Section 
439 of the CrPC; 
3	
[2022] 10 SCR 351 : (2022) 10 SCC 51
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Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office
(b)	 A Special Court takes cognizance of an offence under Section 
4 of the PMLA based on a complaint only if a prima facie case 
of commission of the offence is made out. When the accused 
applies for bail under Section 439 of the CrPC, after cognizance 
is taken, the conditions incorporated in Section 45 (1) of the 
PMLA will apply to the bail application;
(c)	
An application made by the accused for furnishing bonds in 
terms of Section 88 is an application for grant of bail; therefore, 
Section 45 (1) of the PMLA will apply even to such application; 
(d)	 The guidelines issued in the case of Satender Kumar Antil 3, 
do not apply to special acts like the PMLA; 
(e)	 After cognizance is taken on a complaint under Section 44 (1)
(b), the ED has the right to make further investigation and file a 
supplementary complaint. For that purpose, the ED can always 
exercise its power under Section 19 of the PMLA to arrest the 
accused against whom the complaint is filed;
(f)	
Though an accused against whom an allegation of commission 
of an offence punishable under Section 4 of the PMLA is made 
can apply for grant of anticipatory bail, such application shall 
also be governed by the conditions in Section 45 (1). Relying 
upon the decision of this Court in the case of Vijay Madanlal 
Choudhary & Ors. v. Union of India & Ors.4, it is submitted that 
money laundering is an offence against the nation.
Therefore, 
taking into consideration the gravity and severity of the offence 
under the PMLA, mandatory compliance with the requirements 
of Section 45 (1) must always be ensured; 
(g)	 In view of Section 65, read with Section 71 of the PMLA, the 
provisions of the PMLA will have an overriding effect over the 
provisions of the CrPC; and 
(h)	 In none of these cases, the conditions incorporated under 
Section 45 (1) of the PMLA have been fulfilled; therefore, the 
appellants are disentitled to grant of anticipatory bail.
4	
[2022] 6 SCR 382 : 2022 SCC OnLine SC 929
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CONSIDERATION OF SUBMISSIONS 
5.	
While dealing with the complaints under Section 44 (1)(b), this Court, 
in its judgment dated 8th April 2024 in the case of Yash Tuteja & 
Anr. v Union of India & Ors.5 dealt with the issue of the applicability 
of provisions of the CrPC to a complaint under Section 44 (1)(b) of 
the PMLA. While dealing with the said issue in paragraph 6, this 
Court held thus:
“6. The only mode by which the cognizance of the offence 
under Section 3, punishable under Section 4 of the PMLA, 
can be taken by the Special Court is upon a complaint 
filed by the Authority authorized on this behalf. Section 
46 of PMLA provides that the provisions of the Cr.PC 
(including the provisions as to bails or bonds) shall apply to 
proceedings before a Special Court and for the purposes of 
the Cr.PC provisions, the Special Court shall be deemed to 
be a Court of Sessions. However, sub-section (1) of Section 
46 starts with the words “save as otherwise provided in 
this Act.” Considering the provisions of Section 46(1) 
of the PMLA, save as otherwise provided in the PMLA, 
the provisions of the Code of Criminal Procedure, 1973 
(for short, Cr. PC) shall apply to the proceedings before 
a Special Court. Therefore, once a complaint is filed 
before the Special Court, the provisions of Sections 
200 to 204 of the Cr.PC will apply to the Complaint. 
There is no provision in the PMLA which overrides the 
provisions of
Sections 200 to Sections 204 of Cr.PC. 
Hence, the Special Court will have to apply its mind to the 
question of whether a prima facie case of a commission 
of an offence under Section 3 of the PMLA is made out 
in a complaint under Section 44(1)(b) of the PMLA. If the 
Special Court is of the view that no prima facie case of 
an offence under Section 3 of the PMLA is made out, it 
must exercise the power under Section 203 of the Cr.PC 
to dismiss the complaint. If a prima facie case is made 
5	
[2024] 4 SCR 591 : 2024 INSC 301
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875
Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office
out, the Special Court can take recourse to Section 204 
of the Cr. PC.” 
(emphasis added)
6.	
If the Special Court concludes that a prima facie case of commission 
of an offence under the PMLA is made out in the complaint, it can 
order the issue of process in accordance with Section 204 (1) of the 
CrPC. Section 204 of the CrPC reads thus:
“204. Issue of process.—(1) If in the opinion of a Magistrate 
taking cognizance of an offence there is sufficient ground 
for proceeding, and the case appears to be—
(a) a summons-case, he shall issue his summons for the 
attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he 
thinks fit, a summons, for causing the accused to be 
brought or to appear at a certain time before such 
Magistrate or (if he has no jurisdiction himself) some 
other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the 
accused under sub-section (1) until a list of the prosecution 
witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in 
writing, every summons or warrant issued under sub-
section (1) shall be accompanied by a copy of such 
complaint.
(4) When by any law for the time being in force any 
process-fees or other fees are payable, no process shall 
be issued until the fees are paid and, if such fees are not 
paid within a reasonable time, the Magistrate may dismiss 
the complaint.
(5) Nothing in this section shall be deemed to affect the 
provisions of Section 87.”
(emphasis added)
7.	
As the punishment for an offence punishable under Section 4 of the 
PMLA is of imprisonment for more than three years, in view of clause 
(x) of Section 2 of the CrPC, the complaint will be treated as a warrant
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case. Under Section 204(1)(b), the Court can issue either a warrant 
or summons in a warrant case. Therefore, while taking cognizance, 
the Special Court has the discretion to issue either a summons or 
warrant. Regarding the discretion under Section 204 (1)(b), this Court 
has laid down the law in the case of Inder Mohan Goswami & Anr. 
v. State of Uttaranchal & Ors6. This Court held that as a general 
rule, unless an accused is charged with an offence of heinous crime 
and it is feared that he is likely to tamper with or destroy the evidence 
or evade the process of law, the issue of summons is the rule. This 
Court held that in a complaint case, at the first instance, the Court 
should direct serving of summons along with the copy of complaint. If 
service is avoided by the accused, initially, a bailable warrant should 
be issued. If that is not effective, a non-bailable warrant should be 
issued. Paragraphs 55 and 56 of the said decision read thus:
“55. In complaint cases, at the first instance, the court 
should direct serving of the summons along with 
the copy of the complaint. If the accused seem to be 
avoiding the summons, the court, in the second instance 
should issue bailable warrant. In the third instance, when 
the court is fully satisfied that the accused is avoiding the 
court’s proceeding intentionally, the process of issuance of 
the non-bailable warrant should be resorted to. Personal 
liberty is
paramount, therefore, we caution courts at 
the first and second instance to refrain from issuing 
non-bailable warrants.
56. The power being discretionary must be exercised 
judiciously with extreme care and caution. The court should 
properly balance both personal liberty and societal interest 
before issuing warrants. There cannot be any straitjacket 
formula for issuance of warrants but as a general rule, 
unless an accused is charged with the commission of 
an offence of a heinous crime and it is feared that he 
is likely to tamper or destroy the evidence or is likely 
to evade the process of law, issuance of non-bailable 
warrants should be avoided.”
(emphasis added)
6	
[2007] 10 SCR 847 : (2007) 12 SCC 1
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Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office
As noted earlier, a complaint under Section 44(1)(b) of the PMLA 
will be governed by Sections 200 to 204 of the CrPC. Hence, the 
law laid down by this Court in the above decision will apply to a 
complaint under Section 44(1)(b).
8.	
While taking cognizance on a complaint under Section 44 (1)(b), if 
the Court finds that till the filing of the complaint, the accused was 
not arrested, generally at the first instance, as a rule, the Court 
must issue a summons on the complaint. If the accused was not 
arrested till the filing of the complaint but has not cooperated with 
the investigation by defying summons issued under Section 50 of 
the PMLA, the Special Court may issue a bailable warrant at the 
first instance while issuing the process. But even in such a case, it 
is not mandatory to issue a warrant while issuing process; instead 
issuance of a summons would suffice. When an accused is on bail, 
while issuing the process, the Special Court will have to issue only 
a summons. When the accused is granted bail in the same case, 
it is not necessary to arrest him after taking cognizance. If such an 
accused does not remain present after service of summons without 
seeking an exemption, the Special Court can always issue a warrant 
to secure his presence.
9.	
Section 61 of the CrPC provides for the form of summons. Form 
No. 1 in the 2nd Schedule is the prescribed form of summons under
Section 61 of the CrPC. For the sake of convenience, we are 
reproducing Form No. 1:
Form 1
[See Section 61]
Summons to an accused person
To           (name of accused)             of              (address).
Whereas your attendance is necessary to answer to a 
charge of (state shortly the offence charged), you are 
hereby required to appear in person (or by pleader, as the 
case may be) before the (Magistrate) of __________, on 
the _____day of _______Herein fail not.
Dated, this                        day of                             , 20
(Seal of the Court)
(Signature)
______________
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Looking at the form of the summons, it is apparent that it is issued 
only to secure the presence of the accused before the Court to 
answer the charge. If the accused appears before the Court, there 
is sufficient compliance with the summons. Hence, the question of 
taking him into custody on his appearance before the Court pursuant 
to the summons does not arise at all.
10.	 We fail to understand the basis of the submission of the learned ASG 
that after an accused appears before a Special Court in compliance 
with the summons, he shall be deemed to be in custody. The object 
of issuing a summons is to secure the accused’s presence before the 
Court. It is not issued for taking an accused in custody. An argument 
is made that once an accused appears before the Special Court, 
as provided under sub-Section (1) of Section 437, he has to apply 
for bail. For ready reference, we are reproducing sub-Section (1) of 
Section 437, which reads thus:
“437. When bail may be taken in case of non-bailable 
offence.— (1) When any person accused of, or suspected 
of, the commission of any non-bailable offence is arrested 
or detained without warrant by an officer in charge of a 
police station or appears or is brought before a Court 
other than the High Court or Court of session, he may 
be released on bail, but— 
(i) such person shall not be so released if there appear 
reasonable grounds for believing that he has been guilty 
of an
offence punishable with death or imprisonment 
for life; 
(ii) such person shall not be so released if such offence is 
a cognizable offence and he had been previously convicted 
of an offence punishable with death, imprisonment for 
life or imprisonment for seven years or more, or he had 
been previously convicted on two or more occasions of a 
cognizable offence punishable with imprisonment for three 
years or more but not less than seven years:
Provided that the Court may direct that a person referred 
to in clause (i) or clause (ii) be released on bail if such 
person is under the age of sixteen years or is a woman 
or is sick or infirm:
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Provided further that the Court may also direct that a 
person referred to in clause (ii) be released on bail if it is 
satisfied that it is just and proper so to do for any other 
special reason: 
Provided also that the mere fact that an accused person 
may be required for being identified by witnesses during 
investigation shall not be sufficient ground for refusing to 
grant bail if he is otherwise entitled to be released on bail 
and gives an undertaking that he shall comply with such 
directions as may be given by the Court:
Provided also that no person shall, if the offence alleged 
to have been committed by him is punishable with death, 
imprisonment for life, or imprisonment for seven years or 
more, be released on bail by the Court under this sub-
section without giving an opportunity of hearing to the 
Public Prosecutor.”
(emphasis added)
On its plain reading, sub-Section (1) of Section 437 does not apply 
when an accused appears or is brought before a High Court or 
Sessions Court. A Special Court is appointed under sub-Section (1) 
of Section 43 of the PMLA, which reads thus:
“43. Special Courts.—(1) The Central Government, in 
consultation with the Chief Justice of the High Court, 
shall, for trial of offence punishable under Section 4, by 
notification, designate, one or more Courts of Session as 
Special Court or Special Courts for such area or areas 
or for such case or
class or group of cases as may be 
specified in the notification.
Explanation.—In this sub-section, “High Court” means 
the High Court of the State in which a Sessions Court 
designated as Special Court was functioning immediately 
before such designation.
(2)……………………………………………………”
Section 44 (1)(d) provides that while trying a scheduled offence 
or offence under the PMLA, a Special Court shall hold the trial in 
accordance with the provisions of the CrPC as they apply to trial
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before a Court of Session. A Special Court is a Court of Session. 
Therefore, Section 437 will not apply when an accused appears 
before the Special Court after a summons is issued on a complaint 
under Section 44 (1)(b) of the PMLA. 
11.	 There are provisions in the CrPC which show that an accused who 
appears before the Court under a summons issued on a complaint 
cannot be treated as if he is in a deemed custody. One such provision 
is Section 205 of the CrPC, which reads thus: 
“205. Magistrate may dispense with personal 
attendance of accused.—(1) Whenever a Magistrate 
issues a summons, he may, if he sees reason so to do, 
dispense with the personal attendance of the accused 
and permit him to appear by his pleader. 
(2) But the Magistrate inquiring into or trying the case may, 
in his discretion, at any stage of the proceedings, direct 
the personal attendance of the accused, and, if necessary, 
enforce such attendance in the manner hereinbefore 
provided.”
(emphasis added)
We will examine whether Section 205 of the CrPC will apply to a 
complaint under Section 44(1)(b) of the PMLA. Sections 65 and 71 
of the PMLA read thus: 
“65. Code of Criminal Procedure, 1973 to apply.—The 
provisions of the Code of Criminal Procedure, 1973 (2 of 
1974) shall apply, in so far as they are not inconsistent with 
the provisions of this Act, to arrest, search and seizure, 
attachment, confiscation, investigation, prosecution and 
all
other proceedings under this Act.”
“71. Act to have overriding effect.—The provisions 
of this Act shall have effect notwithstanding anything 
inconsistent therewith contained in any other law for the 
time being in force.” 
After carefully perusing the provisions of the PMLA, we find that 
there is no provision therein which is in any manner inconsistent 
with Section 205 of the CrPC. Hence, it will apply to a complaint 
under the PMLA. A summons is issued on a complaint to ensure
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attendance of the accused before the Criminal Court. If an accused 
is in custody, no occasion arises for a Court to dispense with the 
personal attendance of the accused. We may note here that Section 
205 empowers the Court to grant exemption only when a summons 
is issued. Sub-section (2) of Section 205 provides for enforcing the 
attendance of the accused before the Court at the time of the trial. 
If the accused who appears pursuant to the summons issued on a 
complaint were deemed to be in custody, the lawmakers would not 
have provided for Section 205. Hence, we reject the argument of 
the learned ASG that once an accused appears before the Special 
Court on a summons being served to him, he shall be deemed to 
be in custody. 
12.	 Now, we come to Section 88 of the CrPC. Section 88 reads thus: 
“88. Power to take bond for appearance.—When any 
person for whose appearance or arrest the officer presiding 
in any Court is empowered to issue a summons or warrant, 
is present in such Court, such officer may require such 
person to execute a bond, with or without sureties, for his 
appearance in such Court, or any other Court to which 
the case may be transferred for trial.”
If a summons on a complaint is issued and the accused appears 
on the returnable date, it is not necessary in every case to direct 
the accused to furnish bonds as required by Section 88. It is an 
enabling provision
that permits the Court to direct the accused to 
furnish bonds considering the facts of each case. Based on the 
submissions made across the Bar, there are three issues concerning 
Section 88, which are as under:
(i)	
Whether Section 88 applies to an accused who has been served 
with a summons or applies to an accused who appears before 
the Court before the summons is issued or served?
(ii)	
Will Section 88 apply to a complaint under the PMLA? 
(iii)	 Whether an order issued by a Criminal Court to the accused 
to furnish bonds in accordance with Section 88 amounts to a 
grant of bail? 
13.	 Firstly, after examining the provisions of the PMLA, it is apparent 
that Section 88 is in no manner inconsistent with the provisions of 
the PMLA. Therefore, Section 88 will apply after filing of a complaint
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under Section 44(1)(b) of the PMLA. If Section 88 is to apply even 
before a summons is issued or served upon a complaint, there is 
no reason why it should not apply after the service of summons. A 
discretionary power has been conferred by Section 88 on the Court 
to call upon the accused to furnish bonds for his appearance before 
the Court. It does not depend on the willingness of the accused. 
The object of Section 88 is to ensure that the accused regularly 
appears before the Court. Section 88 is a part of Chapter VI of 
the CrPC under the heading “Processes to Compel Appearance”. 
Section 61, which deals with the form of summons and mode 
of service of summons, is a part of the same Chapter. When a 
summons is issued after taking cognizance of a complaint to an 
accused, he is obliged to appear before the Criminal Court on 
the date fixed in the case unless his presence is exempted by an 
express order passed in the exercise of powers under Section 205 
of the CrPC. Therefore, when an accused appears pursuant to a 
summons issued on the complaint, the Court will be well within its 
powers to take bonds under Section 88 from the accused to ensure 
his appearance before the Court. Therefore, when an accused 
appears before the Special Court under a summons issued on the 
complaint, if he offers to submit bonds in terms of Section 88, there 
is no reason for the Special Court to refuse or decline to accept 
the bonds.
Executing a bond will aid the Special Court in procuring 
the accused’s presence during the trial.
14.	 A decision of this Court in the case of Pankaj Jain v. Union of India 
and Anr.7 had an occasion to deal with the issue. The occasion to 
consider the provision of Section 88 was the word “may” used in the 
Section. We may conveniently reproduce paragraphs 21 and 22 of 
the said decision, which reads thus:
“21. This Court in State of Kerala v. Kandath Distilleries 
[State of Kerala v. Kandath Distilleries, (2013) 6 SCC 
573] came to consider the use of expression “may” in the 
Kerala Abkari Act, 1902. The Court held that the expression 
conferred discretionary power on the Commissioner and 
power is not coupled with duty. Following observation has 
been made in para 29: (SCC p. 584)
7	
[2018] 9 SCR 248 : (2018) 5 SCC 743
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“29. Section 14 uses the expression “Commissioner may”, 
“with the approval of the Government” so also Rule 4 uses 
the expressions “Commissioner may”, “if he is satisfied” 
after making such enquiries as he may consider necessary 
“licence may be issued”. All those expressions used in 
Section 14 and Rule 4 confer discretionary powers on 
the Commissioner as well as the State Government, not 
a discretionary power coupled with duty.”
(emphasis in original)
22. Section 88 of the CrPC does not confer any right 
on any person, who is present in a court. Discretionary 
power given to the court is for the purpose and object 
of ensuring appearance of such person in that court 
or to any other court into which the case may be 
transferred for trial. Discretion given under Section 
88 to the court does not confer any right on a person, 
who is present in the court rather it is the power given 
to the court to facilitate his appearance, which clearly 
indicates that use of the word “may” is discretionary 
and it is for the court to exercise its discretion when 
situation so demands. It is further relevant to note 
that the word used in Section 88 “any person” has to 
be given wide meaning, which may include persons, 
who are not even accused in a case and appeared as 
witnesses.”
(emphasis added)
This Court, in the aforesaid decision, dealt with a case where Section 
437 of the CrPC was
applicable. We have already held that in case 
of a complaint under Section 44(1)(b) of the PMLA, Section 437 will 
have no application. Thereafter, this Court discussed the issue as 
to in what manner discretion should be exercised. Paragraphs 27 
to 29 deal with this issue which read thus: 
“27. Another judgment relied upon by the appellant is the 
judgment of the Punjab & Haryana High Court in Arun 
Sharma v. Union of India [Arun Sharma v. Union of India, 
2016 SCC OnLine P&H 5954 : (2016) 3 RCR (Cri) 883]. 
In the above case, the Punjab & Haryana High Court 
was considering Section 88 CrPC read with Section 65
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of the Prevention of Money-Laundering Act. In the above 
context, following has been observed in para 11: (SCC 
OnLine P&H)
“11. On the same principles, in absence of anything 
inconsistent in PMLA with Section 88 CrPC, when a person 
voluntarily appears before the Special Court for PMLA 
pursuant to issuance of process vide summons or warrant, 
and offers submission of bonds for further appearances 
before the court, any consideration of his application for 
furnishing such bond, would be necessarily governed by 
Section 88 CrPC read with Section 65 of PMLA. Section 
88 CrPC reads as follows:
‘88. Power to take bond for appearance.—When any 
person for whose appearance or arrest the officer presiding 
in any court is empowered to issue a summons or warrant, 
is present in such court, such officer may require such 
person to execute a bond, with or without sureties, for his 
appearance in such court, or any other court to which the 
case may be transferred for trial.’
This Section 88 (corresponding to Section 91 CrPC, 1898) 
would not apply qua a person whose appearance is not 
on his volition, but is brought in custody by the authorities 
as held by the Constitution Bench of the Hon’ble Supreme 
Court in Madhu Limaye v. Ved Murti [Madhu Limaye v. 
Ved Murti, (1970) 3 SCC 739] , wherein it was observed 
that: (SCC p. 745, para 17)
‘17. … In fact Section 91 applies to a person who is 
present in court and is free because it
speaks of his being 
bound over, to appear on another day before the court. 
That shows that the person must be a free agent whether 
to appear or not. If the person is already under arrest 
and in custody, as were the petitioners, their appearance 
depended not on their own volition but on the volition of 
the person who had their custody.’
Thus, in a situation like this where the accused were not 
arrested under Section 19 of PMLA during investigations 
and were not produced in custody for taking cognizance, 
Section 88 CrPC shall apply upon appearance of the
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accused person on his own volition before the trial court 
to furnish bonds for further appearances.”
28. The present is not a case where accused was a free 
agent whether to appear or not. He was already issued 
non-bailable warrant of arrest as well as proceeding 
of Sections 82 and 83 CrPC had been initiated. In this 
view of the matter, he was not entitled to the benefit 
of Section 88.
29. In the Punjab & Haryana case, the High Court has relied 
on judgment of this Court in Madhu Limaye v. Ved Murti 
[Madhu Limaye v. Ved Murti, (1970) 3 SCC 739] and held 
that Section 88 shall be applicable since accused were not 
arrested under Section 19 of PMLA during investigation 
and were not taken into custody for taking cognizance. 
What the Punjab & Haryana High Court missed, is that 
this Court in the same paragraph had observed “that 
shows that the person must be a free agent whether to 
appear or not”. When the accused was issued warrant 
of arrest to appear in the court and proceeding under 
Sections 82 and 83 CrPC has been initiated, he cannot 
be held to be a free agent to appear or not to appear 
in the court. We thus are of the view that the Punjab & 
Haryana High Court has not correctly applied Section 
88 in the aforesaid case.”
(emphasis added)
Therefore, if a warrant of arrest has been issued and proceedings 
under Section 82 and/or 83 of the CrPC have been issued against 
an
accused, he cannot be let off by taking a bond under Section 
88. Section 88 is indeed discretionary. But this proposition will not 
apply to a case where an accused in a case under the PMLA is not 
arrested by the ED till the filing of the complaint. The reason is that, 
in such cases, as a rule, a summons must be issued while taking 
cognizance of a complaint. In such a case, the Special Court may 
direct the accused to furnish bonds in accordance with Section 88 
of the CrPC.
15.	 Now, we come to the issue of whether an order of the Court 
accepting bonds under Section 88 amounts to grant of bail. If an 
accused appears pursuant to a summons issued on the complaint,
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he is not in custody. Therefore, there is no question of granting 
him bail. Moreover, even if the accused who appears before the 
Court does not offer to submit bonds under Section 88 of the 
CrPC, the Court can always direct him to do so. A bond furnished 
according to Section 88 is an undertaking to appear before the 
Court on the date fixed. The question of filing bail bonds arises 
only when the Court grants bail. When an accused furnishes a 
bond in accordance with Section 88 of the CrPC for appearance 
before a Criminal Court, he agrees and undertakes to appear 
before the Criminal Court regularly and punctually and on his 
default, he agrees to pay the amount mentioned in the bond. 
Section 441 of the CrPC deals with a bond to be furnished by 
an accused when released on bail. Therefore, in our considered 
view, an order accepting bonds under Section 88 from the accused 
does not amount to a grant of bail.
16.	 Now, we deal with a contingency where after service of summons 
issued on a complaint under the PMLA, the accused does not 
appear. One category of such cases can be where the accused 
appears on the returnable date of the summons and subsequently 
does not appear, notwithstanding the furnishing of bonds under 
Section 88. The other category of cases is where, after the service 
of summons is made on the complaint, the accused does not appear. 
This category will also include a case where the accused appears
on returnable date, but on a subsequent date fails to appear. In the 
first contingency, where the accused does not appear in breach 
of the bond furnished under Section 88, Section 89 of the CrPC 
confers sufficient powers on the Court to take care of the situation. 
Section 89 reads thus: 
“89. Arrest on breach of bond for appearance.—When 
any person who is bound by any bond taken under this 
Code to appear before a Court, does not appear, the officer 
presiding in such Court may issue a warrant directing that 
such person be arrested and produced before him.” 
The warrant contemplated by Section 89 can be a bailable or non-
bailable warrant.
17.	 Even if a bond is not furnished under Section 88 by an accused 
and if the accused remains absent after that, the Court can always 
issue a warrant under Section 70 (1) of the CrPC for procuring the
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presence of the accused before the Court. In both contingencies, 
when the Court issues a warrant, it is only for securing the accused’s 
presence before the Court. When a warrant is issued in such a 
contingency, it is not necessary for the accused to apply for bail. 
Section 70, which confers power on the Court to issue a warrant, 
indicates that the Court which issues the warrant has the power to 
cancel it. Section 70 reads thus:
“70. Form of warrant of arrest and duration.—(1) Every 
warrant of arrest issued by a Court under this Code shall 
be in writing, signed by the presiding officer of such Court 
and shall bear the seal of the Court.
(2) Every such warrant shall remain in force until it 
is cancelled by the Court which issued it, or until it is 
executed.”
(emphasis added)
Thus, sub-section (2) of Section 70 confers power on the Court to 
cancel the warrant. When a bailable warrant is issued to an accused 
on the grounds of his non-appearance, he is entitled to be enlarged 
on bail as a matter of right when he appears before the Court. 
Therefore, he need not apply for cancellation of the warrant.
18.	 When a warrant is issued in the cases mentioned in paragraph 16 
above, the Special Court can always entertain an application for 
cancellation of the warrant and can cancel the warrant depending upon 
the conduct of the accused. 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.
19.	 At this stage, we may refer to a decision of this Court in the case of 
Satender Kumar Antil 3. While dealing with Sections 88, 170, 204, 
and 209 of the CrPC, in paragraphs 100.5, this Court held thus:
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“100.5. There need not be any insistence of a bail 
application while considering the application under Sections 
88, 170, 204 and 209 of the Code.”
At this stage, we may note here that from paragraphs 86 to 89 of 
the same decision, this Court dealt with category of special acts. In 
paragraph 89, this Court held thus:
“89. We may clarify on one aspect which is on the 
interpretation of Section 170 of the Code. Our discussion 
made for the other offences would apply to these cases 
also. To clarify this position, we may hold that if an accused 
is already under incarceration, then the same would 
continue, and therefore, it is needless to say that the 
provision of the Special Act would get applied thereafter. 
It is only in a case where the accused is either not 
arrested consciously by the prosecution or arrested 
and enlarged on bail, there is no need for further 
arrest at the instance of the court. Similarly, we would 
also add that the existence of a pari materia or a similar 
provision like Section 167(2) of the Code available under 
the Special Act would have the same effect entitling the 
accused for a default bail. Even here the court will have to 
consider the satisfaction under Section 440 of the Code.”
(emphasis added)
20.	 Once cognizance is taken of the offence punishable under Section 
4 of the PMLA, the Special Court is seized of the matter. After the 
cognizance is taken, the ED and other authorities named
in Section 
19 cannot exercise the power of arrest of the accused shown in the 
complaint. The reason is that the accused shown in the Complaint 
are under the jurisdiction of the Special Court dealing with the 
complaint. Therefore, after cognizance of the complaint under 44(1)
(b) of the PMLA is taken by the Court, the ED and other authorities 
named in Section 19 are powerless to arrest an accused named in 
the complaint. Hence, in such a case, an apprehension that the ED 
will arrest such an accused by exercising powers under Section 19 
can never exist. 
21.	 We are informed across the Bar by the learned counsel of the 
appellants that some of the Special Courts under the PMLA are
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following the practice of taking the accused into custody after they 
appear pursuant to the summons issued on the complaint. Therefore, 
the accused are compelled to apply for bail or for anticipatory 
bail apprehending arrest upon issuance of summons. We cannot 
countenance a situation where, before the filing of the complaint, 
the accused is not arrested; after the filing of the complaint, after he 
appears in compliance with the summons, he is taken into custody and 
forced to apply for bail. Hence, such a practice, if followed by some 
Special Courts, is completely illegal. Such a practice may offend the 
right to liberty guaranteed by Article 21 of the Constitution of India. 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.
ON FACTUAL ASPECTS OF THE APPEALS
22.	 Coming back to the facts of the cases before us, warrants were 
issued to the appellants as they did not appear before the Special 
Court after the service of summons. As held earlier, 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, we propose 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.
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OPERATIVE CONCLUSIONS
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 the 
accused to furnish bond in terms of Section 88 of the CrPC;
d)	
In a case where the accused appears pursuant to a summons 
before the Special Court, on a sufficient cause being shown, 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,
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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 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
892
[2024] 6 S.C.R.
Digital Supreme Court Reports
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.
24.	 We are making it clear that we are dealing with a fact situation where 
the accused shown in the complaint under Section 44(1)(b) of the 
PMLA was not arrested by the ED by the exercise of power under 
Section 19 of the PMLA till the complaint was filed. 
25.	 Hence, the appeals succeed, and we pass the following order:
a)	
We set aside the impugned orders declining to grant anticipatory 
bail;
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 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

[2024] 6 S.C.R. 
893
Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office
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. 
26.	 The appeals are allowed on the above terms.
Headnotes prepared by: Ankit Gyan
Result of the case: 

Appeals allowed.