TARSEM LALversusDIRECTORATE OF ENFORCEMENT JALANDHAR ZONAL OFFICE

                 [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.

* Author
[2024] 6 S.C.R.                                                            865

   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.                                                            867

   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
870                                                           [2024] 6 S.C.R.

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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
[2024] 6 S.C.R.                                                          871

    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
[2024] 6 S.C.R.                                                           873

    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
[2024] 6 S.C.R.                                                           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
[2024] 6 S.C.R.                                                         877

     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)
                               ______________
878                                                         [2024] 6 S.C.R.

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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:
[2024] 6 S.C.R.                                                            879

   Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office


           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
880                                                          [2024] 6 S.C.R.

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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
[2024] 6 S.C.R.                                                          881

   Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office


     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
882                                                         [2024] 6 S.C.R.

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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
[2024] 6 S.C.R.                                                        883

   Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office


           “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
[2024] 6 S.C.R.                                                         885

   Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office


           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,
886                                                        [2024] 6 S.C.R.

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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
[2024] 6 S.C.R.                                                          887

   Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office


     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
[2024] 6 S.C.R.                                                           889

   Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office


     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,
[2024] 6 S.C.R.                                                        891

   Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office


           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.