ED Loses Power To Arrest U/S 19 Of PMLA After Cognizance Is Taken If Arrest Was Not Made During Investigation: Patna High Court

The Patna High Court has held that the Enforcement Directorate (ED) cannot invoke its powers under Section 19 of the Prevention of Money Laundering Act, 2002 (PMLA) to arrest an accused after cognizance has been taken by the Special Court, if the accused was not arrested during the course of investigation. 

Justice Satyavrat Verma, presiding over the case, stated, “The learned counsel appearing on behalf of the Enforcement Directorate is not in a position to rebut the submission of the learned counsel appearing on behalf of the petitioner that ED during the course of investigation never felt the need of arresting the petitioner and after cognizance is taken of the offence punishable under Section 4 of the PMLA based on a complaint under Section 44(1)(b) of the PMLA, the ED and its officers are powerless to exercise power under Section 19 of the PMLA to arrest a person shown as an accused in the complaint.”

This ruling was delivered in a Criminal Miscellaneous petition arising out of an Enforcement Case Information Report (ECIR). The petitioner, Ganesh Prasad Singh, had approached the Court seeking anticipatory bail in apprehension of arrest by the ED. The Court disposed of the petition in terms of the directions contained in the Supreme Court's order in Tarsem Lal v. Directorate of Enforcement, though it refrained from quoting or relying independently on the reasoning of that judgment.

As per the factual matrix of the case, an FIR was instituted in 2013 concerning predicate offences in which the petitioner was named as an accused. The ED registered an ECIR in 2016, and during the investigation, the petitioner was summoned and cooperated fully with the authorities from 2016 until 2022, when a formal complaint was filed by the ED. At no point during this extensive period did the ED find it necessary to arrest him.

The petitioner contended that, as the ED never arrested him during the investigation, and cognizance of the offence under Section 4 of the PMLA had already been taken on the complaint under Section 44(1)(b), any arrest post-cognizance would be unlawful unless the ED obtained permission from the Special Court.

The Court concurred with this view, noting the inability of the ED's counsel to dispute the fact that no arrest had been made throughout the investigation. Consequently, the anticipatory bail application was disposed of accordingly, and directions were issued to the Trial Court to ensure strict adherence to the applicable legal principles.

The Court, in conclusion, ordered, “The learned Trial Court is directed to strictly adhere to the directions contained in the order dated 16.05.2024 passed by the Hon'ble Supreme Court in Criminal Appeal No. 2608 of 2024 (Tarsem Lal vs. the Directorate of Enforcement, Jalandhar Zonal Office).”

Case Title: Ganesh Prasad Singh v. Union of India & Ors.

LL Citation: 2025 LiveLaw (Pat) 33

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