PMLA Complaints after Tarsem Lal: Summons, Appearance Bonds, Warrants and Post-Cognizance Custody

When the Enforcement Directorate completes investigation without arresting a person and the Special Court later takes cognizance of a prosecution complaint, appearance in response to summons does not automatically place that person in custody. The person need not surrender first and then satisfy the twin conditions for bail under Section 45 of the Prevention of Money-Laundering Act, 2002.

That is the central rule in Tarsem Lal v. Directorate of Enforcement, 2024 INSC 434. The judgment does considerably more than answer a bail question. It explains the procedure for taking cognizance of a complaint under Section 44(1)(b), the normal progression from summons to warrants, the difference between an appearance bond and bail, the treatment of non-appearance, the limits of ED’s Section 19 arrest power after cognizance, and the route by which custody may be sought for further investigation.

The factual and procedural setting

The connected appellants were accused in PMLA complaints. ED had not arrested them between registration of the ECIR and the Special Court’s cognizance of the offence punishable under Section 4. After summons were served, they did not appear; the Special Courts issued warrants. The appellants then sought anticipatory bail, which was refused, before approaching the Supreme Court.

The narrow factual setting matters. Tarsem Lal concerns a person named as an accused in a complaint under Section 44(1)(b) who was not arrested under Section 19 before the complaint was filed and cognizance was taken. It does not erase lawful pre-complaint arrest, release a person already in custody, or immunise someone not yet named in the complaint from a later Section 19 arrest based on further-investigation material.

How a PMLA complaint enters the Special Court

Section 44(1)(b) permits the Special Court to take cognizance of the Section 3 offence upon an authorised written complaint without the accused being committed to it for trial. Sections 46 and 65 PMLA make general criminal procedure applicable to proceedings before the Special Court unless the PMLA otherwise provides or an inconsistency exists.

Tarsem Lal relied on Yash Tuteja v. Union of India, 2024 INSC 301, which held that a complaint under Section 44(1)(b) is governed by the complaint-and-process provisions in Sections 200–204 of the Code of Criminal Procedure, 1973 because the PMLA contains no inconsistent procedure for that stage. The Special Court must apply its mind to whether the complaint discloses a prima facie Section 3 offence. If it does not, dismissal follows under the applicable complaint procedure; if it does, process may issue.

The Court emphasised that cognizance of the offence and custody of the accused are separate matters. A judicial conclusion that sufficient ground exists to proceed is not, by itself, a finding that arrest or detention is necessary.

Summons should ordinarily come first

Although a PMLA prosecution is treated as a warrant case because of the prescribed punishment, Tarsem Lal applied the liberty-sensitive approach in Inder Mohan Goswami v. State of Uttaranchal. Paragraphs 7–8 hold that when ED did not arrest the accused until filing the complaint, the normal first process should be summons rather than a warrant.

If the person had ignored Section 50 summons during investigation, the Special Court may consider a bailable warrant at the process stage, but a warrant is not mandatory and summons may still suffice. If the person is already on bail in the same case, only summons should issue. The court should escalate coercive process according to conduct rather than treating the seriousness of the statutory label as an automatic reason for a non-bailable warrant.

Appearance is not custody

Paragraphs 9–13 and conclusion 23(c) reject the proposition that a person who appears pursuant to summons is deemed to be in custody and must apply for bail. If the person was never arrested during investigation, obedient appearance before the Special Court does not become an arrest by legal fiction.

This distinction follows both principle and the agency’s own investigative choice. ED had the power to arrest under Section 19 before cognizance if its statutory conditions were satisfied. If it investigated, filed its complaint and allowed the person to remain at liberty, the court should not manufacture custody merely because it has now summoned that person to face proceedings.

Section 45 is therefore not triggered by an application for release where the person has never been taken into custody. There is no bail to grant from a detention that does not exist. The Special Court can secure future attendance through the appropriate bond mechanism.

Appearance bonds are not bail bonds

Section 88 CrPC authorised the court to accept a bond for appearance from a person present before it who was not arrested or detained. Paragraphs 12–15 and conclusions 23(f) and 23(h) hold that such a bond is an undertaking to attend on future dates; accepting it does not amount to granting bail. Section 45(1) PMLA consequently does not apply to the acceptance of an appearance bond.

The distinction is practical:

1. bail follows custody or an apprehended arrest and releases the person subject to conditions; 2. an appearance bond secures attendance from a person already at liberty; and 3. failure to honour the bond activates coercive attendance powers but does not retrospectively transform the original appearance into custody.

The Special Court has discretion whether to demand an appearance bond in every case. The judgment does not convert Section 88 into an automatic or universal filing requirement.

Exemption from personal appearance

Tarsem Lal also confirms that the Special Court may exempt personal appearance when sufficient cause is shown. The historical judgment applies Section 205 CrPC. The substantially corresponding current provision is Section 228 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Exemption remains discretionary and may be conditioned or withdrawn when the accused’s personal presence is necessary.

A represented accused should seek exemption by a reasoned application rather than simply remaining absent. The order should specify whether counsel may represent the accused, which stages require personal attendance, and the duty to appear whenever directed.

What happens when summons are disobeyed

Tarsem Lal does not protect deliberate evasion. Paragraphs 16–19 and conclusions 23(e)–(h) describe the escalating response. If a served accused does not appear, or later defaults after having appeared, the Special Court may issue a warrant to procure attendance. Ordinarily, a bailable warrant should precede a non-bailable warrant. More severe process should follow only when the earlier process fails or the conduct justifies escalation.

Where an appearance bond was furnished and breached, Section 89 read with Section 70 CrPC empowered the court to issue a warrant. A person may apply to cancel the warrant and offer an undertaking to attend regularly. When ED never arrested the person during investigation, the Special Court will ordinarily consider cancellation without insisting on custody if attendance can be reliably secured.

An application to cancel an attendance warrant is not a bail application. Section 45’s twin conditions do not apply merely because a warrant issued to secure presence. If the warrant is bailable, the person is entitled to comply with its terms. If proclamation or attachment proceedings have commenced, or conduct shows persistent evasion, the court must address that procedural status rather than attempting to use an appearance bond as an automatic cure.

ED’s arrest power after cognizance

Paragraph 20 and conclusion 23(i) state a specific limit: after the Special Court has taken cognizance of the Section 4 offence on a Section 44(1)(b) complaint, ED and the other Section 19 authorities cannot arrest, under Section 19, a person shown as an accused in that complaint for the same offence. That person is then within the Special Court’s jurisdiction.

This is stronger than saying that ED should ordinarily avoid arrest. In the defined situation, the Supreme Court describes the authority as powerless to use Section 19 against the accused already named in the cognised complaint. Anticipatory bail based solely on fear of such a post-cognizance Section 19 arrest becomes unnecessary.

The rule has boundaries. During further investigation, ED may arrest a person not shown as an accused in the complaint already filed, if Section 19’s material, recorded-belief, written-ground and other safeguards are satisfied. A different offence or a materially different procedural setting requires its own analysis; Tarsem Lal should not be converted into blanket immunity from every future coercive action.

How ED may seek custody for further investigation

If ED requires custody of the summoned accused for further investigation of the same offence, paragraph 21 and conclusion 23(j) prescribe a judicial route. ED must apply to the Special Court. The accused must be heard. The Court may permit custody only if satisfied that custodial interrogation is required at that stage and must record brief reasons.

This procedure preserves both investigation and liberty. It does not forbid a supplementary complaint or further investigation after cognizance. It places the decision to shift a non-arrested accused into custody under judicial supervision rather than allowing Section 19 to be used after the Special Court has become seized of the complaint.

The application should identify the new investigative step, material that emerged, questions requiring custodial examination, why non-custodial cooperation is inadequate and the period sought. A generic claim that further investigation continues should not displace the agency’s earlier decision not to arrest.

The relief granted in Tarsem Lal

The appellants had taken the technically incorrect route of anticipatory bail after warrants were issued for non-appearance. The Supreme Court explained that they could have applied to cancel those warrants. Because they had not been arrested before the complaint and had cooperated in investigation, the Court allowed the appeals, set aside the orders refusing anticipatory bail and directed that the warrants would stand cancelled if the appellants appeared within one month, undertook punctual future attendance and furnished Section 88 bonds.

The Court made clear that anticipatory bail itself did not require adjudication once the warrants were cancelled and the apprehension of a lawful Section 19 arrest no longer survived in the defined post-cognizance setting.

The BNSS transition

Tarsem Lal was decided under the CrPC and its holdings must be described in the provisions the Court actually interpreted. The BNSS came into force on 1 July 2024. Section 531 BNSS repeals the CrPC but saves specified pending appeals, applications, trials, inquiries and investigations to continue under the former Code.

For proceedings governed by the BNSS, the relevant procedural counterparts include:

1. Sections 223–228 BNSS for the complaint, dismissal, issue-of-process and personal-attendance stages corresponding broadly to former Sections 200–205 CrPC; 2. Sections 72, 90–92 BNSS for the duration or cancellation of warrants, warrants in lieu of summons, appearance bonds and breach of those bonds, corresponding broadly to former Sections 70 and 87–89 CrPC; and 3. Sections 84–85 BNSS for proclamation and attachment, corresponding broadly to former Sections 82–83 CrPC.

These mappings are substantial but should not be used mechanically. The text governing the particular complaint depends on the date and the Section 531 savings rule. The PMLA’s Sections 44, 45, 46 and 65 continue to control the relationship between the special statute and general procedure.

Practical steps for the accused and the Special Court

An accused receiving a PMLA complaint summons should appear on the returnable date or seek a reasoned exemption before it, carry proof of earlier cooperation and non-arrest, request acceptance of an appearance bond if directed, and avoid labelling the application as bail where no custody exists. Any outstanding warrant, proclamation or attachment must be candidly disclosed and separately addressed.

The Special Court should record whether ED arrested the accused before filing the complaint, whether process was served, how the accused responded, whether an appearance bond is necessary and why any warrant or custody request is proportionate. If ED seeks post-cognizance custody for further investigation, the court should hear both sides and record a focused finding on the asserted need for custodial interrogation.

Prosecutors should distinguish a request to secure attendance from a request for investigative custody. Treating every summoned accused as constructively detained obscures the correct legal test and invites avoidable litigation.

What Tarsem Lal does not decide

The judgment does not abolish Section 45, dilute its twin conditions in an actual bail application, prevent pre-cognizance arrest that complies with Section 19, excuse disobedience of summons, bar further investigation, or decide the merits of the underlying laundering allegation. It also does not convert cognizance into an acquittal-like assessment; the Special Court only determines whether sufficient ground exists to proceed.

Its central achievement is procedural clarity. Summons secures appearance. An appearance bond secures future attendance. A warrant responds to non-appearance. Bail releases from custody. Post-cognizance investigative custody of a non-arrested accused named in the complaint requires a reasoned application to the Special Court. These legal categories should not be collapsed.

Concluding assessment

Tarsem Lal prevents a prosecution complaint from becoming an automatic arrest event. Where ED consciously completed investigation and filed its complaint without arresting an accused, compliance with the Special Court’s summons does not place the accused in custody and does not trigger Section 45. Attendance may be secured through an appearance bond, while evasion can be met through progressively coercive process.

After cognizance, ED cannot use Section 19 against the person already shown as an accused in that complaint for the same offence. If further investigation genuinely requires custody, ED must ask the Special Court, the accused must be heard and brief reasons must justify the order. The framework respects effective enforcement without allowing judicial appearance itself to become a mechanism of needless detention.

Official primary sources

Prevention of Money-Laundering Act, 2002, Sections 19, 44–46 and 65: https://www.indiacode.nic.in/handle/123456789/15402.

Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 72, 84–85, 90–92, 223–228 and 531: https://www.mha.gov.in/sites/default/files/2024-04/250884_2_english_01042024.pdf

Tarsem Lal v. Directorate of Enforcement, Criminal Appeal Nos. 2608–2615 of 2024, 2024 INSC 434, Supreme Court judgment dated 16 May 2024, especially paragraphs 5–23 and operative conclusions 23(a)–(j): https://api.sci.gov.in/supremecourt/2023/53731/53731_2023_7_1502_53220_Judgement_16-May-2024.pdf

Yash Tuteja v. Union of India, 2024 INSC 301, Supreme Court judgment dated 8 April 2024, especially paragraph 6 on the complaint procedure: https://api.sci.gov.in/supremecourt/2023/14771/14771_2023_8_68_52049_Judgement_08-Apr-2024.pdf

This article provides general legal information and does not constitute advice concerning any summons, warrant, arrest or PMLA prosecution.

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