Gauhati High Court - Kohima
Bhupesh Arora vs Directorate Of Enforcement on 29 January, 2026
Page No.# 1/46
GAHC020000652025 2026:GAU-NL:23
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
KOHIMA BENCH
Case No. : CRL.REVN/3/2025
BHUPESH ARORA
S/O GULSHAN KUMAR, RESIDENT OF G-5, 35/36, 3RD FLOOR,
SECTOR 11, ROHINI, DELHI-110085 RESIDENTIAL ADDRESS IN
DUBAI, 6504 MARINA, ELITE RESIDENCY, DUBAI, UAE.
VERSUS
DIRECTORATE OF ENFORCEMENT
REPRESENTED BY ITS DEPUTY DIRECTOR, DIMAPUR, SUB-ZONAL
OFFICE, 5TH FLOOR, MAINAAK TOWER, CHRISTIAN BASTI, G.S.
ROAD, GUWAHATI, ASSAM-781005
Advocate for the Petitioner : D DAS SR. ADV., TOSHITEMJEN PONGENER,Z
KHALID,K MOHAMMED
Advocate for the Respondent : KEDUVI ZHOTSO, P.P.,
Linked Case : CRAPL/1/2025
BHUPESH ARORA
S/O GULSHAN KUMAR
RESIDENT OF G-5
35/36
3RD FLOOR
SECTOR 11
Page No.# 2/46
ROHINI
DELHI-110085
RESIDENTIAL ADDRESS IN DUBAI
6504 MARINA
ELITE RESIDENCY
DUBAI
UAE.
VERSUS
DIRECTORATE OF ENFORCEMENT
REPRESENTED BY ITS DEPUTY DIRECTOR
DIMAPUR
SUB-ZONAL OFFICE
5TH FLOOR
MAINAAK TOWER
CHRISTIAN BASTI
G.S. ROAD
GUWAHATI
ASSAM-781005
------------
Advocate for : D DAS SR. ADV.
Advocate for : KEDUVI ZHOTSO appearing for DIRECTORATE OF
ENFORCEMENT
BEFORE
HON'BLE MR. JUSTICE ANJAN MONI KALITA
Date on which judgment was reserved : 30.10.2025
Date of pronouncement of judgment : 29.01.2026
Whether the pronouncement is of the : NA
operative part of the judgment?
Whether the full judgment has been : Yes
pronounced?
Page No.# 3/46
JUDGEMENT AND ORDER (CAV)
Heard Mr. D Das, learned Senior Advocate assisted by Mr. S Das, learned Counsel appearing for the Petitioner. Also heard Mr. S V Raju, the learned Additional Solicitor General, India (ASGI), assisted by Mr. Z. Hussain, the learned counsel and Mr. K. Zhotso, the learned Standing Counsel for the Enforcement Directorate.
2. The instant Criminal Revision Petition No. 3 of 2025 and Criminal Appeal No. 1 of 2025 are listed together as the Parties are same, i.e., Petitioner in the Criminal Revision Petition is the same person who is also the Appellant in the Criminal Appeal and the Respondent in both, is the Directorate of Enforcement. Counsel appearing for the respective parties too are same and argued both the cases together. It is seen that both the cases are inter-related and order in one will have impact on the other matter. It is found that judgment and order in the Criminal Revision Petition shall have bearing in the order to be passed in the Criminal Appeal. Therefore, it will be sensible to pass a Common Judgment & Order in both the cases. Accordingly, both the aforesaid cases are being disposed of by this Common Judgment & Order.
3. Crl. Rev. Pet. No. 3 of 2025The gist of the case is that based on a complaint against M/s. H P Z Token and Others, alleging that thousands of persons were duped by the aforesaid entity on the pretext of receipt of investments for Bitcoin Mining, the Cyber Crime Police Station, Kohima, Nagaland, registered an FIR No. 03/2021, dated 08.10.2021, under Section 420 and Section 120(B) of IPC, which fall under Paragraph 1, Part-'A' of the Schedule of Offences under Prevention of Money Laundering Act, 2002 (herein after referred to as PMLA). Thereafter, the matter was examined by the Directorate of Enforcement, Dimapur, Sub-Zonal Office and after having found a prima facie case of money laundering, as defined under Section 3 of the PMLA and punishable under Section 4 of PMLA made out, a case was registered, vide an Enforcement Case Information Report (ECIR), vide ECIR No. GWZO-II/09/2022 dated 12-04-2022, and an investigation was Page No.# 4/46 initiated under PMLA. It was alleged that the quantum of proceeds of crime involved in the case of aforesaid HPZ Token and others in which the Petitioner is the accused No. 1, in ML Case No. 01/2024, filed before the Court of the Special Judge, PMLA, Dimapur, Nagaland (herein after referred to as the Special Judge, PMLA), runs into thousands of crores of Rupees. Summonses were issued to the Petitioner and other 298 accused persons. On receipt of summons, the Petitioner appeared before the learned Special Judge, PMLA through his engaged counsel. However, the learned Special Judge, PMLA on an application filed by the Respondent/Enforcement Directorate, issued an open-ended Non-Bailable Warrant of Arrest (NBWA) against the Petitioner. The Petitioner filed an application for recalling/cancellation of the NBWA, which was kept in abeyance by the learned Special Judge, PMLA and further directed that the application filed by the Enforcement Directorate praying for issuance of the NBWA will be reheard on a date fixed. However, the learned Special Judge, PMLA on 13-12-2024, vide its order directed the execution of the NBWA, which was earlier kept in abeyance solely on the ground of non-appearance in person by the Petitioner, without rehearing the aforesaid application filed by the Enforcement Directorate/Respondent. The Petitioner being aggrieved by such order of execution of the NBWA has assailed the aforesaid order dated 13-12-2024 by filing the instant application filed under Section 397 Cr.PC, read with Section 401 of Cr.PC, 1973.
4. Crl. Apl. No. 1/2025The basic facts remaining the same as in the aforesaid Criminal Revision Petition, it is the case of the Appellant that an application, i.e., I.A. No. 791 of 2024 was filed by the Enforcement Directorate/ Respondent, praying for a declaration of the Appellant as a Fugitive Economic Offender, under the provisions of the Fugitive Economic Offenders Act, 2018 (herein after referred to as the Act, 2018). After hearing the Parties, the learned Special Judge, PMLA on 22-01-2025, was pleased to partially allow the prayers of the Respondent made in I.A. No. 791/2024 and thereby, declaring the Appellant as a Fugitive Economic Offender under the Act, 2018. Being Page No.# 5/46 aggrieved by the aforesaid order dated 22-01-2025 passed by the learned Special Judge, PMLA, the Appellant has filed the instant Appeal assailing the aforesaid order dated 22-01-2025.
5. After summary narration of the facts involved in the both the cases, this Court approaches to examine the Criminal Revision Petition first.
6. It is the case of the Petitioner that an FIR dated 08-10-2021 was registered at Cyber Crime Police Station, Kohima, (FIR No. 03/2021, under Section 420/120B IPC, read with Section 66 (D) of the IT Act) against some unknown accused persons. Investigation was initiated by the Enforcement Directorate (ED) under PMLA, vide ECIR No. ECIR/ GWZO-II/09/2022 dated 12-04-2022 and after completion of the investigation, the ED filed a complaint before the learned Special Judge, PMLA, Dimapur on 22-03-2024, under Section 4 of the PMLA Act, 2002 against the Petitioner and 298 others. Cognizance of the offence was taken by the learned Special Judge, PMLA on 22-03-2024 and accordingly, a case was registered as ML Case No. 01/2024. After registration of the case and cognizance taken, summons were issued to all the accused persons, including the Petitioner and 24-05-2024 was fixed as the date for supply of copies/documents.
7. In the complaint filed by the ED, the Petitioner was not shown as an absconder and there was no warrant pending against him during the whole investigation process. The Petitioner engaged a counsel to appear on behalf of him before the learned Special Judge, PMLA and he had been regularly appearing before the learned Special Judge, PMLA after receipt of the summons. On 24-05-2024, the Petitioner was represented by his engaged counsel and the next date was fixed for consideration of charge on 02-08-2024. Meanwhile, on 02-07-2024, which was not a fixed date, the ED filed an application i.e., I.A. No. 230/2024 before the learned Special Judge, PMLA praying for issuance of an open ended Non-Bailable Warrant of Arrest (NBWA) against the Petitioner, without any notice either to the Petitioner or to the Petitioner's counsel.
Page No.# 6/46 The learned Special Judge, vide his order dated 02-07-2024, allowed the prayer of the Respondent (ED) in I.A. No. 230/2024 whereby, an open ended NBWA against the Petitioner was issued.
8. On the next fixed date i.e., on 02-08-2024, Petitioner's counsel was surprised to learn that the learned Special Judge, PMLA had, vide his order dated 02-07-2024, issued a NBWA against the Petitioner without giving him any opportunity of hearing. In fact, on the very date, the Petitioner filed two applications, one being I.A. No. 506/2024 for dispensing with the personal appearance of the Petitioner and the other being I.A. No. 507/2024, for allowing the Petitioner to appear before the learned Special Judge, PMLA through a hybrid mode. The learned Special Judge, PMLA allowed the I.A. No. 506/2024 and exempted him from personal appearance for the day. On the other application, i.e., I.A. No. 507/2024, the learned Special Judge, PMLA fixed 27-09-2024 for hearing. It is the case of the Petitioner that, immediately, the Petitioner filed an application, being I.A. No. 531 /2024 for recalling/cancelling of the aforesaid ex parte order dated 02-07-2024, whereby the learned Special Judge, PMLA issued a NBWA against the Petitioner.
9. On 05-09-2024, I.A. No. 531/2024 filed by the Petitioner, was taken up for hearing by the learned Special Judge, PMLA. After hearing the parties, the learned Special Judge, PMLA passed an order, whereby it was directed that the application filed by the ED (I.A. 230/2024) for issuance of NBWA against the Petitioner would be re-heard on the next returnable date i.e., on 18-10-2024. The ED was directed to supply a copy of the aforesaid application to the Petitioner through his counsel. It was further directed that the NBWA issued against the Petitioner would be kept in abeyance until the next returnable date. The Petitioner was directed to be personally present on the next date i.e., on 18-10-2024. In above terms, the learned Special Judge, PMLA, disposed of the I.A. No. 531/2024 filed by the Petitioner.
Page No.# 7/46
10. On 18-10-2024, the Petitioner was represented by his counsel and intimated the learned Special Judge, PMLA that the copy of I.A. No. 230/2024 was yet to be furnished to him and thus, the hearing on I.A. No. 230/2024 was adjourned by the learned Special Judge, PMLA till 12-12-2024, with the interim order so passed earlier on 05-09-2024, extended till the next date. The learned Special Judge, PMLA further dispensed with the personal appearance of the Petitioner. The learned Special Judge, PMLA issued no further direction for the personal appearance of the Petitioner on the next date fixed. The case could not be heard on 12-12-2024 due to the absence of the counsel appearing for the Respondent (ED). On 13-12-2024, the learned Special Judge, PMLA rather than hearing the I.A. No. 230/2024, directed the NBWA issued against the Petitioner which was kept in abeyance, to be executed since the Petitioner failed to be present personally before the Court. It is the case of the Petitioner that the learned Special Judge, PMLA had completely overlooked the fact that his direction for personal appearance vide, order dated 05-09-2024 was specifically for the next date i.e., on 18-10-2024. On 18-10-2024, the learned Special Judge, PMLA dispensed with the personal appearance of the Petitioner and no further direction for the personal appearance of the Petitioner was passed either on 18-10-2024 or on 12-12-2024. Being aggrieved, with the aforesaid order dated 13-12-2024, the Petitioner has filed the instant Criminal Revision Petition, praying for amongst others, setting aside and/or quashing and/or rescinding the impugned order dated 13-12-2024, passed by the learned Special Judge, PMLA.
11. The Respondent has filed its affidavit-in-opposition, to which the Petitioner has also filed an affidavit-in-reply. Both the parties have also filed additional affidavits bringing on record the subsequent developments in the case.
12. The stand of the Respondent is that there is nothing wrong in the impugned order dated 13-12-2024, passed by the learned Special Judge, PMLA in the instant case. I.A. No. 230/2024 was filed by the Respondent, which was allowed by the learned Special Judge, PMLA vide, order dated 02-07-2024, and accordingly, issued the Page No.# 8/46 NBWA against the petitioner on 12-07-2024. Thereafter, the Petitioner filed I.A. No. 531/2024, before the learned Special Judge, PMLA for cancellation/recalling of the NBWA issued against the Petitioner. The learned Special Judge, vide its order dated 05-09-2024, directed that the application of the Respondent would be re-heard and specifically directed the Petitioner to be present in person on the next date fixed i.e., on 18-10-2024. On 18-10-2024, the learned Special Judge, PMLA extended the impugned order passed in I.A. No. 531/2024 until the next date fixed. However, the Petitioner failed to appear on 12-12-2024 as well as on 13-12-2024, as directed by the learned Special Judge, PMLA. Hence, vide order dated 13-12-2024, the learned Special Judge, PMLA, Dimapur, directed the NBWA issued against the Petitioner which was kept in abeyance, through its earlier order, to be executed. Therefore, it is the case of the Respondent that in spite of a specific direction issued by the learned Special Judge, PMLA, the Petitioner failed to present himself in person before the learned Special Judge, PMLA. Therefore, in consequence, the aforesaid order dated 13-12- 2024 was passed by the learned Special Judge, PMLA which cannot be faulted with.
13. It is the stand of the Respondent that the issuance of NBWA against the Petitioner is justified. It is stated that Section 45 of the PMLA provides that offences under the Act shall be cognizable and non-bailable in nature and the Petitioner's continuous non- appearance before the Respondent (ED) even after issuance of six summonses, is a fact which was considered by the learned Special Judge, PMLA. It is contended that unlike the other accused persons, the Petitioner played a pivotal role in the instant money laundering case and is one of the prime suspects as per the materials collected by the Respondent. Therefore, the issuance of NBWA against the Petitioner is justified and no illegality has been committed by the learned Special Judge, PMLA by directing the NBWA to be executed against the Petitioner, which was earlier kept in abeyance. It is contended that the Petitioner has not personally participated in the case and throughout the investigation, has neglected the same by remaining absent. It is also contended that the order for re-hearing was passed only for the reason that the Petitioner was not given the opportunity of being heard before the NBWA was issued.
Page No.# 9/46 However, the Petitioner did not avail the opportunity in spite of a specific direction given by the learned Special Judge, PMLA. Therefore, there is nothing wrong in passing of the order by the learned Special Judge, PMLA for execution of the NBWA, which was kept in abeyance by his earlier order.
14. In the Additional Affidavit filed by the Petitioner to bring on record certain developments during the pendency of this petition, it is stated that on 02-07-2025, the Petitioner was arrested in connection with the FIR No. 24/2024 dated 26-06-2024, registered under Sections 420, 120-B, 467, 468, 471 and 201 IPC in the Police Station Cyber Crime Central, Faridabad. However, on 09-07-2025, Petitioner was granted bail in the aforesaid case. Thereafter, on 11-07-2025, the Petitioner was shown arrested by the Delhi ED Office, in connection with a complaint being ECIR bearing No. ECIR/HYZO/46/ 2023 dated 14-10-2022, arising out of the FIR no.1352/2022 dated 26-06-2022, lodged in PS Cyber Crime, Hyderabad. In the meanwhile, on 09-07-2025, the Respondent/ED filed I.A. (Criminal) 13 of 2025, in Criminal Revision Petition No. 3 of 2025, pending before this Court, seeking urgent hearing, wherein by an order dated 21-07-2025, this Court allowed the prayer for urgent hearing, but rejected the prayer for clarification on Section 19 of PMLA, citing the Judgment delivered by the Hon'ble Supreme Court in Tarsem Lal -Vs- Directorate of Enforcement , reported in (2024) 7 SCC 61, wherein it was held that post-cognizance, the ED cannot exercise the power of arrest under Section 19 of PMLA, without applying to the Special Court for custody, and such order must be passed after hearing the accused and recording brief reason, only if custodial interrogation is required. It is also stated that on 04-08- 2025, the learned Special Judge, PMLA passed an order in I.A. No. 465 of 2025, filed by the Respondent in ML Case No. 01/2024, allowing the prayer for issuance of production warrant against the Petitioner for custodial interrogation without affording any opportunity of hearing to the Petitioner. It is further stated that the said application was filed on an off-date without any notice to the Petitioner and the learned Special Judge, PMLA proceeded ex parte in violation of the Principles of Natural Justice and the direction issued by the Hon'ble Supreme Court in Tarsem Lal Page No.# 10/46 (supra).
15. By filing an Additional Affidavit, the Respondent too had brought on record certain subsequent facts occurred during the pendency of the instant petition. It is stated that the Respondent came to know about the arrest of the Petitioner through the newspaper and media, which was confirmed by Cyber Crime Central Police Station, Faridabad, Haryana. It is stated that the arrest of the Petitioner first by the Faridabad Police and subsequently by Directorate of Enforcement (DE) in relation to another case, has also paved the way for the Respondent to proceed with the investigation in the PMLA case registered in Kohima, including recording the statement of the Petitioner, which is critical for expediting the investigation and for effecting restitution of the proceeds of crime fraudulently acquired from the innocent people from Nagaland and other parts of India. It is also stated that the interrogation of the Petitioner (Bhupesh Arora) is not only desirable but necessary for investigation into tracing and securing the remaining proceeds of crime. It is stated that in view of the aforesaid, the Respondent filed an application under Section 267 of Cr.PC, read with Section 65 of the PMLA, before the learned Special Judge, PMLA, on 04-08-2025, seeking production of the Petitioner for the purpose of investigation and accordingly, on the very same date, i.e., on 04-08-2025, the learned Special Judge, PMLA was pleased to allow the application of the Respondent and issued a production warrant to produce the Petitioner on 11-08-2025 before the Court of the learned Special Judge, PMLA. However, the learned Chief Judicial Magistrate, Central Delhi, vide order dated 08-08-2025, returned the warrant in original citing shortage of time for seeking consent from the learned Sessions Judge (Special Judge, PMLA, Rouse Avenue) in whose judicial custody, the accused was, and therefore, for the time being, the learned CJM, only permitted the production of the Petitioner (accused) through Video Conferencing, which did not serve the intended purpose of custodial interrogation or other lawful actions contemplated by the Respondent. Thereafter, the Respondent moved an application before the learned Sessions Judge (Special Judge, PMLA, Rouse Avenue) for enforcing the production warrant issued by the learned Special Judge, Page No.# 11/46 PMLA, Dimapur, vide order dated 04-08-2025, wherein the learned Special Judge, Rouse Avenue, vide order dated 26-08-2025, allowed the application of the Respondent. However, it is stated that the Petitioner had already filed an application seeking recalling of the order dated 04-08-2025, before the learned Special Judge, PMLA, Dimapur, which is still pending.
16. Mr. D Das, the learned Senior Counsel appearing for the Petitioner, submits that the procedure that is mandated to be followed in an offence under PMLA, is to be governed by Section 200-205 of the Cr.PC and the trial is that of a summons procedure case. Therefore, he submits that once a complaint is filed under Section 44(1)(b) of the PMLA, it would be governed by Sections 200 to 205 of the Cr.PC, as none of the said provisions are inconsistent with any of the provisions of the PMLA. In this connection, the learned Senior Counsel has assertively referred to the judicial pronouncement of the Hon'ble Apex Court in the case of Tarsem Lal (supra), wherein, the Hon'ble Apex Court in a case relating to PMLA, at Paragraph-33, has held that once a complaint under Section 44 (1) (b) PMLA is filed, it will be governed by Section 200 to 205 of Cr.PC. He submits that being a summons case, if the accused does not appear after a summons is served or does not appear on a subsequent date, the Special Court may be held within its powers to issue a warrant in terms of Section 70 Cr.PC. He submits that initially as a general practice, the Special Court should issue a bailable warrant and if it is not possible to effect service of the bailable warrant, then the recourse could be taken to issue a Non-Bailable Warrant. He submits that this legal proposition has been specifically made in Paragraph 33.5 of the aforesaid case. He submits that in the instant case, after issuance of the summons, the learned Special Judge, PMLA, rather than issuing a bailable warrant, directly issued the Non-Bailable Warrant of Arrest against the Petitioner, which is against the principles that have been laid down in the case of Tarsem Lal (supra). Therefore, he submits that the action of the issuance of the NBWA against the Petitioner in spite of the petitioner being represented by his counsel before the learned Special Judge, PMLA is not warranted and liable to be set aside and quashed.
Page No.# 12/46
17. The learned Senior Counsel appearing for the Petitioner submits that the Petitioner has been regularly represented by the engaged counsel before the learned Special Judge, PMLA and duly filed petitions for dispensing with the personal appearance of the Petitioner, which were being allowed by the learned Special Judge, PMLA. There was neither any objection from the counsel appearing for the Respondent nor any observation from the learned Special Judge, PMLA about the appearance of the Petitioner through his represented counsel. He submits that an application, i.e., I.A. No. 507/2024 was also filed by the Petitioner for allowing him to appear before the learned Special Judge, PMLA through hybrid mode, which is still pending hearing and disposal. He submits that the Petitioner entered appearance in the PMLA case through his engaged counsel on 24-05-2024 and on the same date, the matter was fixed on 02-08-2024 for arguments on charge. However, instead of hearing the matter on charge, the learned Special Judge, PMLA on an off-date, i.e., 02-07-2024, on an application filed by the Respondent, i.e., I.A. No. 230/2024, praying for issuance of NBWA against the Petitioner, allowed the prayer of the Respondent and issued an NBWA against the Petitioner without providing any opportunity of hearing to him. He submits that on the fixed date, i.e., 02-08-2024, the counsel appearing for the Respondent was in fact, surprised to learn about the aforesaid order dated 02-07- 2024. He submits that the Petitioner had, in fact, on the very same date, i.e., 02-08- 2024, filed two applications, i.e., I.A. No. 506/2024 for dispensing with the personal appearance of the Petitioner and I.A. No. 507/2024, for allowing the Petitioner to appear before Special Judge, PMLA through hybrid mode. Though the learned Special Judge, PMLA had allowed the application for dispensing with the personal appearance for the day, the other application, i.e., I.A. No. 507/2024, is yet to be heard and disposed of. In view of the aforesaid, the learned Senior Counsel submits that the order passed by the learned Special Judge on 02-07-2024 was not warranted and bad in law. He submits that on 05-09-2024, on an application, i.e., I.A. No. 531/2024, filed by the Petitioner seeking recalling/cancelling/keeping in abeyance of the order dated 02-07-2024, was, however, allowed to certain extent by directing the I.A. No. 230/2024 to be fixed for re-hearing and thereby, keeping the NBWA issued against the Page No.# 13/46 Petitioner in abeyance. He submits that on 18-10-2024 also, the learned Special Judge, PMLA, exempted the personal appearance of the Petitioner and fixed on 12-12-2024 for hearing on I.A. No. 230/2024. The learned Special Judge, PMLA was also pleased to extend the interim order dated 05-09-2024. He submits that on 12-12-2024, the petitioner was duly represented by his engaged counsel and no hearing took place on I.A. No. 230/2024, as the counsel appearing for the Respondent was not present. He submits that on 13-12-2024, surprisingly, the learned Special Judge, PMLA passed the order for execution of the NBWA issued against the Petitioner which was kept in abeyance by an earlier order of the learned Special Judge, PMLA. He submits that since the Petitioner was duly represented by his engaged counsel, there was no reason for passing of the impugned order dated 13-12-2024 by directing execution of the NBWA against the petitioner. He submits that in a summons case, Section 251 is the commencing provision in Chapter XX of the Cr.PC which deals with trial of summons cases by a Magistrate. He further submits that appearance envisaged therein can either be by personal attendance of the accused or through his Advocate. In this connection, he referred to the case of Bhaskar Industries Limited -Vs- Bhiwani Denim and Apparels Limited and Others, reported in (2001) 7 SCC 401, T G and Kumar -Vs- State of Kerala and Others, reported in (2011) 2 SCC 772, Puneet Dalmia -Vs- Central Bureau of Investigation , reported in (2020) 12 SCC 695 and Sharif Ahmed and Another -Vs- State of Uttar Pradesh, reported in (2014) SCC OnLine SC 726. In view of the ratios laid down by the Hon'ble Apex Court in the aforesaid cases, the learned Senior Counsel submits that there is no bar provided by the Cr.PC for appearance of the accused person through his engaged counsel in a summons case under Section 205 (1) of the Cr.PC. Therefore, non- consideration of the aforesaid statutory provisions by the learned Special Judge, PMLA, has caused irreparable injury and prejudice to the Petitioner and therefore, the impugned order dated 13-12-2024, passed by the learned Special Judge, PMLA, whereby, the NBWA was directed to be executed against the Petitioner solely for reason of non-appearance of the Petitioner in person before the learned Special Judge, PMLA is against the laid down provisions of law, and therefore, the same is liable to be set aside and quashed.
Page No.# 14/46
18. Mr. D Das, the learned Senior Counsel submits that NBWA is to be issued only in exceptional cases in a summons triable case and the same should not be issued as a matter of routine. He submits that only when a summons issued to an accused cannot be executed, then only recourse of warrant should be taken by a trial Court and not otherwise. Recourse to bailable warrant should be taken first and thereafter, NBWA could be issued. In this connection, the learned Senior Counsel has referred to the case of Tarsem Lal (supra), Inder Mohan Goswami -Vs- State of Uttaranchal; reported in (2007) 12 SCC 1, and Raghuvansh Dewanchand Bhasin -Vs- State of Maharashtra; reported in (2012) 9 SCC 791. The learned Senior Counsel submits that in view of the ratios laid down by the Hon'ble Apex Court, the issuance of NBWA by the learned Special Judge, PMLA is an incorrect proposition of law, which he has issued without proper application of mind and law and therefore, the same is liable to be set aside and quashed. He submits that after taking of the cognizance of the offence, the learned Special Judge, PMLA after issuance of the summons and appearance of the Petitioner through his engaged counsel without issuing any Bailable warrant, should not have issued the NBWA against the Petitioner solely for the reason of non-appearance in person is not envisaged under the relevant provisions of Cr.PC. Therefore, he submits that the impugned order dated 13-12-2024 passed in violation of the ratios laid down by the Hon'ble Apex Court is liable to be set aside and quashed.
19. The learned Senior Counsel submits that an order once recalled becomes non-est and cannot be given effect subsequently as it invalidates the entire proceeding. He submits that the learned Special Judge, PMLA, vide his order dated 05-09-2024, had in effect, recalled his earlier order dated 02-07-2024. Therefore, after recalling of the order, he could not have re-activated the order which had become non-est under the eyes of law. In this connection, the learned Senior Counsel has referred to the case of Budhia Swain -Vs- Gopinath Deb, reported in (1999) 4 SCC 396 and Kapra Mazdoor Ekta Union -Vs- Birla Cotton SPG and WVG Mills Limited, reported in (2005) 13 SCC 777. The learned Senior Counsel submits that in view of the law laid Page No.# 15/46 down in the aforesaid cases, it is discernible that the order of keeping in abeyance, which in fact, is recalling of the order could not have been re-activated by the impugned order dated 13-12-2024. Therefore, the same being in violation of the ratios laid down by the Hon'ble Apex Court is liable to be set aside and quashed.
20. The learned Senior Counsel submits that an order of recall under procedural review cannot be indirectly revived by a substantive order. He submits that a procedural review is inherent or implied in a Court to set aside a palpably erroneous order passed under misapprehension by it, however, a substantive review is when an error is sought to be corrected, is one of law and is apparent on the face of the record. He submits that no review lies on merits unless specifically provided under a statute. He submits that in the instant case, the order dated 05-09-2024, could not have been reviewed by the learned Special Judge, PMLA as the same is not a procedural review but a substantive review on merit. In this connection, he referred to the case of Vikram Bakshi -Vs- R P Khosla, reported in 2025 SCC OnLine SC 1783.
21. The learned Senior Counsel submits that the order dated 02-07-2024 was passed on an off-date without hearing the Petitioner or providing any opportunity of hearing to the Petitioner. Therefore, the said order was rightly recalled on 05-09-2024 by the learned Special Judge, PMLA. However, the same was re-activated by the learned Special Judge, PMLA without taking into consideration the prevailing and settled laws of the country, which makes the impugned order dated 13-12-2024 arbitrary and illegal in the eyes of law and therefore, the same is liable to be set aside and quashed. He further submits that the impugned order was passed without taking into account the order dated 18-10-2025, wherein the personal appearance of the Petitioner was dispensed with on 18-10-2024 and there was no direction for any personal appearance was passed on 18-10-2024, 24-10-2024 and 12-12-2024 respectively. Therefore, on the face of those orders, wherein no direction for personal appearance was made, the impugned order passed solely for the reason of absence of the Petitioner personally is devoid of any merit and therefore, is liable to be set aside and quashed.
Page No.# 16/46
22. In view of the aforesaid submissions, the learned Senior Counsel submits that the instant petition should be allowed by this Court by setting aside and quashing the impugned order dated 13-12-2024 for the ends of justice.
23. On the other hand, Mr. S.V. Raju, the learned ASGI appearing for the Respondent submits that the instant petition is not maintainable as the Petitioner has already been declared as Fugitive Economic Offender, vide order dated 22-01-2025 and till date, he has not joined the Proceedings before the learned Special Judge, PMLA, Dimapur, Nagaland. He submits that the Petitioner has filed multiple petitions before the Hon'ble High Court and other High Courts (such As Delhi High Court) by abusing the process of law and doing forum shopping. Therefore, the instant Criminal Revision Petition is liable to be dismissed at the threshold.
24. The learned ASGI submits that six (6) summonses dated 13-01-2023, 23-02- 2023, 01-05-2023, 27-09-2023, 18-12-2023 and 21-02-2024 respectively, under Section 50(2) of the Prevention of Money Laundering Act, 2002 (PMLA) were issued to the Petitioner by the ED, however, he did not appear before the Investigating Agency. He further submits that various summonses had been issued by the learned Special Judge, PMLA since May, 2024 to the Petitioner but the Petitioner has neither joined the investigation nor appeared before the learned Special Judge, PMLA in person as yet. Therefore, he submits that the instant Criminal Revision Petition is liable to be dismissed on that ground alone.
25. The learned ASGI submits that the Petitioner is the main accused in Case No. ECIR No. GWZO-II/09/2022 dated 12-04-2022, which is based upon the predicate FIR No. 03/2021 registered at the Cyber Crime Police Station, Kohima and the allegations pertain to duping of gullible investors with the promises of extremely high returns on their investments in Bitcoin mining through an App-based token called "HPZ Token". He submits that another FIR No. 0006/2021 dated 21-09-2021 (CID PS, Guwahati) Page No.# 17/46 was also registered for cheating and criminal conspiracy in relation to the scam. The FIRs and a CBI case (RC 2212022E0022 dated 08-06-2022) against the related entities establish that a huge fraud was perpetrated on the public by the HPZ Token App and associated schemes wherein the Petitioner is the master mind of crime. He submits that the amounts collected from victims across India, aggregating to over Rs. 2,200 Crores, constitute "proceeds of crime" within the meaning of section 2(1)(u) of PMLA, having been generated from the scheduled offences of cheating and criminal conspiracy. He submits that the ED's financial investigation has traced those illicit funds into multiple accounts and assets and has quantified assets worth about Rs. 652 Crores, which has been attached/frozen.
26. The learned ASGI submits that the Prosecution Complaint dated 22-03-2024 filed in the instant case clearly shows that the Petitioner did not appear pursuant to 6 summonses issued to him by the Directorate of Enforcement under section 50 of the PMLA and further investigation was kept open in respect of him. He submits that during the course of investigation, it has been observed that the scam is very huge and only a part of the Proceeds of Crime has been detected and placed under freezing/attachment. Therefore, he submits that it is very important for the Directorate of Enforcement to interrogate him to get the required information revealed from him. He submits that in spite of a clear direction by the learned Special Judge, PMLA to appear in person before the Court, the Petitioner chose to remain absent and therefore, there is no wrong committed by the learned Special Judge, PMLA to direct the execution of the NBWA already issued against the Petitioner.
27. The learned ASGI submits that a person summoned under section 50 of the PMLA is bound to appear in person. He submits that it is well settled that when a person is summoned under section 50(2) of the PMLA, the person summoned is bound to attend in person and state truth upon any subject concerning which he is being examined or is expected to make statement. He submits that the Directorate of Enforcement during the course of inquiry is statutorily empowered to issue summons to a person for the Page No.# 18/46 purpose of inquiry and seek adducing of material evidence necessary for inquiry. He submits that when summons is issued, there is a legal obligation on the person summoned to comply with the summons order. In this connection, the learned ASGI has referred to the case of Enforcement Directorate Vs. State of T.N., reported in 2024 SCC OnLine SC 211 wherein, it was held by the Hon'ble Apex Court that the concerned officers of the Directorate of Enforcement have the power to summon any person whose attendance they consider necessary, either to give evidence or produce any record during the course of investigation or proceeding under the PMLA. In support of his aforesaid submission, he also referred to the cases of Virbhadra Singh & Anr. Vs. Directorate of Enforcement & Anr. , reported in 2017 SCC OnLine Del 8930 and Amanatullah Khan Vs. Directorate of Enforcement-Bail Appln. 795/2024, decided by the Delhi High Court.
28. The learned ASGI submits that NBWA can be issued even after filing of the Prosecution Complaint for securing presence of an accused during further investigation. In this connection, the learned ASGI referred to the case of Dinesh Dalmia Vs. CBI, reported in (2007) 8 SCC 770 wherein, the Hon'ble Apex Court held that the power of the investigating officer to make a prayer for making further investigation in terms of sub-section (8) of Section 173 is not taken away only because a Charge-sheet under sub-section (2) thereof has been filed. A further investigation is permissible even if order of cognizance of offence has been taken by the Magistrate. The learned ASGI further referred to the case of Directorate of Enforcement Vs. Lakshay Vij and ors. (CRL.M.C. 8399/2024-order dated 24.10.2024) decided by the Delhi High Court. In view of the ratios laid down in the aforementioned cases, the learned ASGI submits that there is no error committed by the learned Special Judge, PMLA in issuing the open ended NBWA, vide its order dated 02.07.2024.
29. The learned ASGI submits that the ratio laid down in the case of Tarsem Lal (Supra) applies only to the power of arrests under Section 19 of the PMLA and not when the court is issuing a NBWA. He submits that no hearing is contemplated to a Page No.# 19/46 person before issuance of a NBWA even if a Prosecution Complaint is filed. This is for the reason that a NBWA issued by a Court is different from the power of arrest by the ED under Section 19 of PMLA. He submits that arrests are of two kinds, i.e., (a) arrests under warrants issued by a Court and (b) arrests otherwise than under such warrants. In this connection, he referred to the case of State of Punjab Vs. Ajaiab Singh, reported in (1952) 2 SCC 421. The learned ASGI submits that neither Section 73 nor Section 70 of the Cr.P.C stipulates that a court issuing a NBWA must first issue a prior notice to the accused. In this connection, he referred to the case of Sukhmeet Singh Anand Vs. State (NCT of Delhi), reported in 2018 SCC OnLine Del 10674 wherein, the Delhi High Court held that even without service of notice, the Investigating Agency would be within its jurisdiction to get an order seeking issuance of NBWA of the accused for the offence/offences allegedly committed. The learned ASG submits that the Trial Court has jurisdiction and power to issue NBWA during further investigation. In this connection, he relied on the cases of Ottaviio Quattrocchi Vs. CBI, reported in (1998) SCC OnLine Del 1067, Mrigendra Jalan Vs. State & Another, reported in 2008 SCC OnLine Del 1067 and Sukhmeet Singh Ananad Vs. State of NCT Delhi , reported in 2018 SCC OnLine Del 10674 of the Delhi High Court.
30. The learned ASGI submits that the issuances of NBWAs are justified against persons who are prima facie involved in the offence and do not join investigation or inquiry despite summons. In this connection, the learned ASGI referred the case of Anil Kumar Madan Vs CBI, reported in 2011 SCC OnLine Del 3174 of Delhi High Court. He also referred to the case of Jayant Vishnu Thakur Vs. State of Maharashtra, reported in (2009)7 SCC 104, Siddharam Satlingappa Mhetre Vs. State of Maharashtra, reported in 2011(1)SCC 694, Inder Mohan Goswami Vs State of Uttaranchal, reported in 2007(12) SCC 1, A. Krishna Reddy Vs. C.B.I, reported in 2011 SCC OnLine Del 3175 and Serious Fraud Investigation Office Vs. Aditya Sarda, reported in 2025 SCC OnLine SC 764.
Page No.# 20/46
31. The learned ASGI submits that the issuance of NBWA does not tantamount to granting ED custody and it is precisely for this reason that by order dated 5-9-2024, the NBWA was kept in abeyance directing the petitioner's personal appearance. However, it is only when the Petitioner failed to appear that the NBWA which was earlier kept in abeyance was directed to be executed. Therefore, he submits that there is no wrong committed by the learned Special Judge, PMLA in passing the order dated 13-12-2024.
32. The learned ASGI submits that the NBWA issued, vide order dated 02-07-2024 was never recalled but merely kept in abeyance. Therefore, the contention that the order dated 02-07-2024 was recalled by the learned Special Judge, PMLA is erroneous and is liable to be rejected at once. He submits that an order that uses the expression NBWA to be kept in abeyance cannot be read as recalling the NBWA and that would amount to adding words to an order which is not permissible. He submits that the meaning of the expression keeping in abeyance has been discussed by the three (3) Judges' Bench of the Hon'ble Supreme Court in Sudarshan Chits (I) Ltd. Vs. O. Sukumaran Pillai, reported in (1984) 4 SCC 657, wherein it was held that the term "keeping in abeyance" cannot be treated as recalling the order. He submits that it is well settled that an order keeping in abeyance any judgment does not efface the underlying basis of the Judgment as held by the Hon'ble Supreme Court in the case of Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Assn. , reported in (1992) 3 SCC 1. The learned ASGI further submits that in the case of CCE Vs. Space Telelink Ltd., reported in 2017 SCC OnLine Del 12910, the High Court of Delhi, while relying on the judgment of the Hon'ble Supreme Court in the case of Shree Chamundi Mopeds (Supra), held that an order keeping in abeyance the judgment of a lower Court or authority does not deface the order underlying basis of the judgment itself i.e., the reasoning. In view of the aforesaid cases, the learned ASGI submits that the contention that the NBWA stood recalled is palpably incorrect. Therefore, he submits the contention of the Petitioner that the order dated 2-7-2024 was recalled by the learned Special Judge, PMLA, vide his order that 05-09-2024 is Page No.# 21/46 liable to be rejected at once.
33. The learned ASGI submits that appearance through an Advocate cannot be treated as appearance before the Court by a person against whom directions for personal appearance has been issued. He submits that appearance through a counsel despite a direction by the Court to appear in person has been held by the Hon'ble Apex Court to be no appearance. He relied on the case of Srikant Upadhyay Vs. State of Bihar, reported in 2024 SCC OnLine SC 282.
34. The learned ASGI submits that the procedure of Trial before a Court of Session is prescribed for the trial of offences under PMLA. Therefore, he submits that the contention of the Petitioner that the procedure for trial in a PMLA case is that of a summons case and hence a warrant could not have been issued is contrary to the plain language of the statute. In this connection, he referred to Section 43 and Section 44 of the PMLA. He submits that section 44 of the PMLA clearly lays down that the Special Court while trying the offence of money-laundering shall hold the trial in accordance with the provisions of the Cr.PC., as it applies to a trial before the Court of Session.
35. In view of the aforesaid submissions, the learned ASGI submits that the constant evasion of the process of law by the Petitioner, first, by not joining the investigation despite issuance of summonses, and thereafter, by not appearing before the learned Special Judge, PMLA despite specific directions to do so, the Petitioner deserves no relief under the instant Criminal Review Petition and hence, the petition is liable to be dismissed.
36. This Court has heard the submissions made by the Counsel appearing for the respective Parties as well as perused the records of the Court of the Special Judge, PMLA, Dimapur, Nagaland.
Page No.# 22/46
37. The primary grievance in the instant Criminal Revision Petition as discernible from the pleadings, submissions and prayers of the Petitioner, is that the learned Special Judge, PMLA has directed the execution of the NBWA against the Petitioner, vide its order dated 13-12-2024 though the Petitioner has been represented by his engaged counsel and also without taking into account of the fact that the PMLA case is a Summons Procedure Case.
38. Dates being very important in the instant case, the relevant dates are reproduced herein below:
22-03-2024 : Complaint was filed by ED before the learned Special Judge, PMLA, Dimapur under section 4 of the PMLA, 2002 against the Petitioner and 298 others;
22-03-2024: The learned Special Judge, PMLA took cognizance of the complaint and issued summons to all the accused persons;
24-05-2024 : The Petitioner entered appearance and was represented by his engaged counsel and next date was fixed on 02-08-2024 for arguments on charge;
02-07-2024 : The Respondent filed an application, i.e., I.A. No. 230 of 2024 under section 70 Cr.PC read with Section 65 of the PMLA, 2002 praying for issuance of an open ended Non-Bailable Warrant of Arrest against the Petitioner and the learned Special Judge, PMLA allowed the aforesaid I.A. and issued an open ended Non- Bailable Warrant of Arrest against the Petitioner;
02-08-2024 : The Petitioner filed two I.A.s, one being IA No. 506/2024 for dispensing with the personal appearance of the Petitioner and the other being I.A. No. 507/2024, for allowing the Petitioner to appear before the learned Special Judge, PMLA through a hybrid mode. The learned Special Judge, PMLA was pleased to allow the I.A. No. 506/2024 of the Petitioner and exempted him Page No.# 23/46 from personal appearance, for the day. The learned Special Judge, PMLA was pleased to fix 27.09.2024, for hearing on I.A. No. 507/2024;
05-09-2024 : The learned Special Judge, PMLA on an application, i.e., I.A. No 531 of 2024, filed by the Petitioner under section 72(2) of BNSS praying for recalling and/or cancelling the order dated 02-07-
2024, passed an order whereby the NBWA issued against the Petitioner was kept in abeyance till the next returnable date and directed that the application of the ED praying for open ended NBWA would be reheard by giving an opportunity of hearing to the Petitioner. It was also directed that the Petitioner to be present personally on the next date;
18-10-2024 : The learned Special Judge, PMLA exempted the personal appearance of the Petitioner for the day and the next date was fixed on 12-12-2024 for hearing on I.A. No 230 of 2024. The learned Special Judge further extended the interim order passed in 531 of 2024 and fixed 13-12-2024 for appearance;
24-10-2024 : An application, i.e., I.A. No 791 of 2024 was filed by the Respondent praying for a declaration of the Petitioner as a Fugitive Economic Offender under the provisions of the Fugitive Economic Offenders Act, 2018. The learned Special Judge, PMLA fixed 12-12-2024 for Reply and further hearing on I.A. No. 791 of 2024;
12-12-2024 : Petitioner prayed for time to file a Reply in I.A. No. 791 of 2024 and the matter was fixed on 13-12-2024 due to non-appearance of the principal counsel of the Respondent;
13-12-2024 : The learned Special Judge, PMLA allowed one week's time to the Petitioner to file his Reply in the I.A. No. 791 of 2024. However, though an I.A. No. 920 was filed by the Petitioner for his Page No.# 24/46 exemption of personal appearance, the same was rejected by the learned Special Judge, PMLA and directed that the NBWA issued against him which was kept in abeyance be executed;
39. From the facts as well as from records placed before this Court, it is seen that during the investigation, summonses under section 50(2) of the PMLA were issued to the Petitioner on six dates, i.e., on 13-01-2023, 22-02-2023, 01-05-2023, 27-09-2023, 18-12-2023 and 21-02-2024. However, the Petitioner did not appear before the investing agency, i.e., Enforcement Directorate though admittedly he had received the summonses. However, it is seen that he did respond to the summonses dated 23.02.2023 and 18.12.2023 by e-mails stating his inability to appear citing medical reasons. As for the last summons dated 21-02-2024, he prayed for few weeks' time but he did not appear before the ED against those summons issued to him. The learned Special Judge, PMLA while considering the application filed by the Respondent for issuance of open ended NBWA and thereafter while passing the order dated 02-07- 2024 also mentioned that the Petitioner did not co-operate with the investigation in spite of an order passed by the Hon'ble Gauhati High Court (Kohima Bench) in W.P. (Crl) No. 3 of 2023. Therefore, apparently the conduct of the Petitioner as far as cooperation with the investigation is concerned, is not appreciable. However, the fact remains is that the ED neither arrested him nor he was declared as an absconder by the learned Special Judge, PMLA after the Complaint was filed by the Respondent.
40. At this stage it would be relevant to examine the primary contention raised by the Petitioner that compliant under section 44(1)(b) of the PMLA is governed by Summons Procedure under the Cr.PC. The Petitioner has relied heavily on the case of Tarsem Lal (Supra) in this context. It will be relevant herein to refer to some of the paragraphs from the case of Tarsem Lal (Supra) which are reproduced here in below for ready reference:
" 6. While dealing with the complaints under Section 44(1)(b), this Court, in its judgment dated 8-4-2024 in Yash Tuteja Vs. Union of India, dealt with the issue Page No.# 25/46 of applicability of provisions of Cr.PC to a complaint under Section 44(1)(b) PMLA. While dealing with the said issue in para 6, this Court held thus: (SCC) "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, subsection (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 out, the Special Court can take recourse to Section 204 of the Cr. PC." (emphasis added)
7. 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 Cr.PC. Section 204 of the Cr.PC reads thus:
Page No.# 26/46 "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 subsection (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) "8. 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) Page No.# 27/46 of Section 2 of the Cr.PC, the complaint will be treated as a warrant 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".
"9. Regarding the discretion under Section 204 (1)(b), this Court has laid down the law in the case of Inder Mohan Goswami & Anr. Vs. State of Uttaranchal. 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 Page No.# 28/46 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) As noted earlier, a complaint under Section 44(1)(b) of the PMLA will be governed by Sections 200 to 204 of the Cr.PC. Hence, the law laid down by this Court in the above decision will apply to a complaint under Section 44(1)(b).
10. 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."
41. In view of the aforesaid discussion made by the Hon'ble Apex Court, it is seen that in a complaint under Section 44(1)(b) of PMLA, the Special Court shall be deemed to be a Court of Session, the provisions of Code of Criminal Procedure shall apply to the proceedings before the Special Court. Accordingly, once a complaint is filed before Page No.# 29/46 the Special Court, the provisions of Section 200 to Section 204 Cr.PC will apply to the complaint as there is no provision in PMLA which overrides the provision of Section 200 to Section 204 Cr.PC. It is also seen that in the aforesaid case of Tarsem Lal (Supra), the Hon'ble Apex Court in the Operative Conclusions, at Para 33.1, held as follows:
"33.1. Once a complaint under Section 44(1)(b) PMLA is filed, it will be governed by Sections 200 to 205 Cr.PC as none of the said provisions are inconsistent with any of the provisions of PMLA;"
From the above, it is clear that if the Special Court concludes that a prima-facie case of commission of an offence under PMLA is made out in the complaint, it can order the issue of process in accordance with Section 204(1) Cr.PC. However, the argument made on behalf of the Petitioner that PMLA cases are Summons cases, this Court disagrees with such argument due to the reason that clause (x) of Section 2 of the Cr.PC provides the definition of "warrant case". Warrant case means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. In an offence punishable under Section 4 of PMLA is imprisonment for more than three (3) years, therefore, the complaint will be treated as a warrant case. This aspect of the matter has been clearly held by the Hon'ble Apex Court in the case of Tarsem Lal (Supra) at Para 8, which has already been quoted herein above. Therefore, by taking cognizance, the Special Court has the discretion to issue either a summons or warrant.
42. As far as the discretion under Section 204(1)(b), the Hon'ble Apex Court in the case of Tarsem Lal (Supra), while referring to the case of Inder Mohan Goswami Vs. State of Uttaranchal, reported in 2007 12 SCC 1, has laid down 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. The Hon'ble Apex Court also held that in a complaint case, at the first instance, the court should direct serving of summons along with the copy of the complaint and if service is avoided by the accused, initially, a bailable warrant should be issued. If that is not effective, a non-bailable warrant Page No.# 30/46 should be issued. In this context, the Hon'ble Apex Court has referred to paragraph 55 and 56 of the case of Inder Mohan Goswami (Supra), which have already been quoted above. The Hon'ble Apex Court in the aforesaid case of Tarsem Lal (Supra), thereby specifically laid down that the law laid down by the Hon'ble Apex Court in the decision in the case of Inder Mohan Goswami (Supra) apply to a complaint under Section 44(1)(b) of PMLA.
43. In paragraph 10 of the aforesaid case of Tarsem Lal (Supra), the Hon'ble Apex Court held that if the accused was not arrested till the filing of the complaint but has not co-operated with the investigation by defying summons issued under Section 50 of PMLA, the Special Court may issue a bailable warrant at first instance while issuing the process. It was further held that even in such a case, it is not mandatory to issue a warrant while issuing process and instead, issuance of a summons would suffice. It was further held that 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. A plain reading of the principles laid down by the Hon'ble Apex Court in the aforesaid cases of the Tarsem Lal (Supra) and Inder Mohan Goswami (Supra), makes it is clear that in a complaint under Section 44(1)(b) of PMLA, the Special Court, PMLA, if the accused person was not arrested, as a general rule, should issue summons for his appearance or a bailable warrant in the first instance. However, in spite of receipt of summons, does not remain present without seeking an exemption, a bailable warrant should be issued to the accused person and only in the event of his non-appearance in spite of issuance of bailable warrant, a non- bailable warrant is required to be issued.
44. While concluding the Hon'ble Apex Court in the case of Tarsem Lal (Supra), held at paragraph 33.10 as follows:
"If ED wants custody of the accused who appears after service of summons for conducting further investigation in the same offence, 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 Page No.# 31/46 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, even 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)(e), provided the requirements of Section 19 are fulfilled."
45. From the above, it is discernible that the ED can seek custody of an accused person who has appeared after receipt of Summons for further investigation by applying to the Special Court and the Special Court can pass an order after hearing the accused by recording brief reasons on such application. Therefore, it is clear that in the event any further investigation, the ED can seek custody of the accused but the application for such prayer could be allowed only after hearing the accused person. However, a pre-condition has been added is that the accused person appeared before the Special Court.
46. Thus a question remains to be answered is that whether in a proceeding under the PMLA an accused person is bound to appear in person in the trial or he can be represented by his counsel and his personal appearance therefore can be exempted by the Special Court. The learned Senior Counsel appearing for the Petitioner, as mentioned above, submitted that an accused is entitled to be represented by his engaged counsel. In this connection, he referred to the case of Bhaskar Industries Limited Vs. Bhiwani Denim & Apparels Ltd. & Ors. , reported in (2001) 7 SCC
401. The observations of the Hon'ble Apex Court at Paragraphs 17 & 18 being relevant, are reproduced herein below:
"17. Thus, in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for Page No.# 32/46 proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses".
"19. The position, therefore, bogs down to this: It is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the magistrate can consider all aspects and pass appropriate orders thereon before proceeding further."
Since Section 205 of the Cr.PC is held to be applicable to a case under PMLA, therefore, the aforesaid proposition of law laid down by the Hon'ble Apex Court shall be equally apply to a case under PMLA. It is seen that the same proposition has been laid down by the Hon'ble Apex Court in the cases of TGN Kumar Vs. State of Kerala & Ors., reported in (2011) 2 SCC 772, Puneet Dalmia Vs. Central Bureau of Investigation, reported in (2020) 12 SCC 695 and Sharif Ahmed and Page No.# 33/46 Another Vs. State of Uttar Pradesh, reported in (2014) SCC Online SC 726.
47. Coming back to the case in hand, it is seen that though the petitioner did not cooperate with the investigation conducted by the Enforcement Directorate (ED), after the complaint was filed by the ED before the learned Special Judge, PMLA on 22-03- 2024, after taking of the cognizance and issuance of summons by the learned Special Judge, PMLA the petitioner entered his appearance through his engaged counsel on the scheduled date i.e., on 24-05-2024. On that date, the documents relied upon by the ED were supplied to the learned counsel appearing on behalf of the Petitioner and the next date was fixed on 02-08-2024 for arguments on charge. It is also seen from the records that though the Petitioner was represented by his engaged counsel, no question or issue, whatsoever, was raised either by the ED or by the learned Special Judge, PMLA on 24-05-2024. It is seen that since some of the accused persons were not present on 24-05-2024, the learned Special Judge, PMLA directed for issuance of fresh summonses on those accused persons and fixed 02-08-2024 for hearing of the charge. In the meantime, though the case was not fixed on 02-07-2024, the Respondent filed an application i.e., I.A. No.230/2024 praying for issuance of an open- ended NBWA against the Petitioner. The learned Special Judge, PMLA took up the application for hearing without issuance of any notice to the Petitioner/Accused and passed an order whereby, an open-ended NBWA was issued against the Petitioner. On the next date fixed i.e., on 02-08-2024, when the Petitioner appeared before the learned Special Judge, PMLA through his engaged counsel, he filed two applications being I.A. No.506 and I.A. No. 507 of 2024 for dispensing with his personal appearance and for allowing him to appear before the learned Special Judge, PMLA through hybrid mode respectively. The learned Special Judge, PMLA allowed the I.A. No.506/2024 and exempted the personal appearance of the Petitioner for the day. However, I.A. No.507/2024, which was for appearance through hybrid mode was fixed on 27-09-2024 for arguments. The Petitioner filed an application i.e., I.A. No.531/2024 on 05-09-2024, praying for recalling and/ or cancelling the order dated 02-07-2024 wherein a NBWA was issued against the Petitioner. Upon hearing the parties, the learned Special Judge, PMLA passed the following order (operative portion):
Page No.# 34/46 "5. I have considered the above rival submissions advanced by the learned counsel for the parties.
It is a fact as pointed out by the learned counsel for the accused petitioner that the present accused was not shown as absconder in the instant complaint. It is also a fact that the application of the ED praying for open ended non-bailable warrant was heard without giving an opportunity to the accused petitioner.
In Tarsem Lal (supra), the Hon'ble Supreme Court at Para 31 held as under:
"If ED wants custody of the accused who appears after service of summons for conducting further investigation in the same offence, 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."
In the instant case, the accused petitioner was not arrested during the course of investigation as he was absconding and evading arrest as claimed by the ED but he was not shown as absconder. Be that as it may, the ED can still seek custody even though the accused was never arrested but after hearing the accused as per Tarsem Lal (supra). As noted above, the application of the ED praying for open ended non-bailable warrant of arrest was heard without affording an opportunity to the accused. As such, I am of the opinion that the application of the ED praying for open ended non- bailable warrant of arrest be reheard giving an opportunity of hearing to the accused petitioner.
The application of the ED will be reheard on the next returnable date which is fixed on 18.10.2024. ED is to supply a copy of their application to the accused petitioner through counsel. Meanwhile, the non-bailable warrant of arrest issued against the accused petitioner, namely, Bhupesh Arora is kept in abeyance till the next returnable date. The accused petitioner is to be Page No.# 35/46 personally present on the next date.
With the aforesaid observation and direction, the instant I.A. No.531 of 2024 stands disposed of accordingly."
48. From the above order dated 05-09-2024 of the learned Special Judge, PMLA it is clear that relying on the case of Tarsem Lal (Supra), the order was passed for rehearing the application, i.e., I.A. No. 230/2024 filed by the ED for issuance of open- ended NBWA against the Petitioner as the learned Special Judge had passed the order dated 02-07-2024 on the aforesaid I.A. without hearing the accused/Petitioner. Accordingly, the learned Special Judge, PMLA passed an order whereby, the NBWA issued against the Petitioner was kept in abeyance and fixed 18-10-2024 for re- hearing. However, it was also directed that the accused/Petitioner is to be personally present on the next date.
49. It is seen that on 18-10-2024, the Petitioner appeared before learned Special Judge, PMLA through his engaged counsel and personal appearance of the Petitioner was exempted for the day. It is seen that the learned counsel appearing for the Petitioner intimated the learned Special Judge, PMLA about the pending hearing of the I.A. No.230/2024 and submitted that the copy of the aforesaid I.A. was not served on him. Thereafter, the learned Special Judge, PMLA fixed 12-12-2024 for hearing of the I.A. No.230/2024 and in the meantime, the interim order passed in I.A. No.531/2024 was directed to be continued until the next date. On 12-12-2024, the learned counsel appearing for the Petitioner sought for some time for filing a reply on an I.A filed by the Respondent and since the principal counsel for the Respondent was absent, the matter was fixed again on 13-12-2024. On 13-12-2024, the counsel for the Petitioner was present and filed an application i.e., I.A. No.920/2024 was filed for exemption for personal appearance of the Petitioner. However, the learned Special Judge, PMLA while disposing of I.A No.920/2024 concluded that since the petitioner was directed to be present in person, as he failed to comply with the direction, NBWA issued against him, which was kept in abeyance, be executed. From the aforesaid factual matrix, it is seen that though vide, order dated 05-09-2024, the learned Special Judge, PMLA directed the I.A. No.230/2024 to be re-heard, the same was not done by the learned Special Page No.# 36/46 Judge, PMLA on the date fixed for hearing and instead, passed an order for execution of the NBWA against the Petitioner for being not present personally before the Court.
50. It is apparent from the facts that learned Special Judge, PMLA has passed the order dated 02-07-2024 without hearing the Petitioner. Therefore, after issuance of summons, a NBWA was straightway issued to the Petitioner. Thereafter, on an application filed for re-calling/cancellation of the aforesaid NBWA, the learned Special Judge, PMLA while referring to the case of Tarsem Lal (Supra) and admitting the fact that the aforesaid order dated 02-07-2024 was since passed without hearing the Petitioner, the I.A. No.230/2024 should be re-heard and fixed on 13-12-2024. It is also seen that on various dates before the learned Special Judge, PMLA though the Petitioner was being represented by his engaged counsel, on applications being filed for exemptions of his personal appearances, the same were allowed and the Petitioner was exempted from his personal appearances. It is seen that the learned Special Judge, PMLA on 05-09-2024 directed the petitioner to be personally present on 18-10- 2024 and on 18-10-2024, the Petitioner was allowed to be represented by his engaged counsel. No direction of his personal appearance was passed on 18-10-2024 while fixing the next date on 12-12-2024. Therefore, it is not understandable as to why rather than hearing the application, i.e., I.A. No.230/2024, the learned Special Judge, PMLA directed the execution of NBWA against the Petitioner which was kept in abeyance by an earlier order only on the ground of non-appearance of the Petitioner in person, though the Petitioner has been regularly represented by his engaged counsel. It is also seen that the petitioner's personal appearance was, on regular basis, exempted by the learned Special Judge, PMLA. There was no specific order of appearance of the Petitioner in person in the order dated 18-10-2024.
51. In view of the ratios laid down in the cases of Bhaskar Industries Limited (Supra), TGN Kumar (Supra), Puneet Dalmia (Supra) and Sharif Ahmed (Supra), it is clear that an Accused can be represented by his engaged counsel if his personal appearance is duly exempted by a competent court, which is the Court of Special Judge, PMLA in the instant case. In this connection, it may be relevant to refer to paragraph 33.4 of the case of Tarsem Lal (Supra), wherein the Hon'ble Apex Page No.# 37/46 Court held that in a case where the accused appears pursuant to 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 Cr.PC. Therefore, the learned Special Judge, PMLA has the jurisdiction and power to allow the accused exemption from personal appearance. Now, the question arises in the instant case is whether there was any special direction for the Petitioner to appear before the learned Special Judge, PMLA on the specified date. As mentioned above, though there was a direction to appear personally on 18-10-2024, the Petitioner did not appear personally before the Special Judge, PMLA on 18-10- 2024. However, on an application filed on behalf of the Petitioner for exemption of his personal appearance, the same was allowed by the learned Special Judge, PMLA without directing the Petitioner to appear in person on the next date scheduled i.e., on 12-12-2024. Therefore, when the case was taken up on 13-12-2024, it cannot be said that there was an order in existence for the personal appearance of the Petitioner on 13-12-2024, though his engaged counsel duly represented him.
52. In view of the aforesaid, from the facts of the instant case, this Court is of the considered opinion that the argument of the learned ASGI that appearance through a counsel cannot be treated as appearance before the Court by a person against whom direction for personal presence has been issued, does not have any merit. The cases relied on by the learned ASGI in this connection, i.e., Srikant Upadhyay (Supra) and Gurdev Singh (Supra) are being not relevant not discussed and considered.
53. It has been clearly laid down in the case of Tarsem Lal (Supra), while relying on the case of Inder Mohan Goswami (Supra) that in a complaint case under PMLA, the usual course to be followed by the learned Special Judge, PMLA is to issue a summons, at the first instance and thereafter, if the accused is not responding to the summons, a bailable warrant to be issued. In an event of the accused person's non- appearance in spite of a bailable warrant, then only a non-bailable warrant should be issued to the accused person. Though the Hon'ble Apex Court held that the issuance of warrant is discretionary for the Special Judge, PMLA, the issuance of NBWA is not a routine matter as the same involved personal liberty of a person guaranteed under the Page No.# 38/46 Constitution of India. The learned ASGI submitted that the ratio of Tarsem Lal (Supra) is applicable only to the power of arrest under Section 19 of PMLA and not when the Court is issuing a NBWA. This submission of the learned ASGI is not agreeable to this Court as no differentiation as such has been made by the Hon'ble Apex Court in the case of Tarsem Lal (Supra). Therefore, in the instant case also, before issuance of the NBWA, a Bailable Warrant could have been a better choice in view of the principles laid down in the case of Tarsem Lal (Supra).
54. Another aspect which needs consideration is that of the order dated 05-09-2024 wherein the learned Special Judge, PMLA has specifically directed the I.A. No.230/2024 which was filed by the Respondent for issuance of an open-ended NBWA against the petitioner, to be re-heard as the same application was heard without issuing any notice to the Petitioner. It is not a dispute that the order dated 05-09-2024 was not challenged by any of the parties and the I.A. No.230/2024 remained to be re-heard. In this connection, it is pertinent to mention herein that the Petitioner had filed an application i.e., I.A. No.531/2024 under Section 72 (2) BNSS praying for recalling and/or cancelling of the order dated 02-07-2024, wherein a NBWA was issued against the Petitioner. The learned Special Judge, PMLA after hearing the parties specifically came to a conclusion that the application i.e., I.A. No.230/2024 would be re-heard on 18-10-2024 and thereby, disposed of the I.A. No.531/2024 filed by the Petitioner. Therefore, on the face of the existence of the aforesaid order dated 05-09-2024, the learned Special Judge, PMLA could not have passed the order 13-12-2024 without hearing the Petitioner as the order dated 05-09-2024 was neither cancelled nor recalled. The order is also not in terms with the principle laid down in the case of Tarsem Lal (Supra) at para 33.10 (quoted above), which was, in fact, considered by the learned Special Judge, PMLA while passing the order dated 5-9-2024.
55. From the facts involved in the instant case, it apparent that the learned Special Judge, PMLA issued the direction for execution of the NBWA which was kept in abeyance by his earlier order. The learned Special Judge, PMLA though directed the NBWA to be kept on abeyance and the issue of recalling/cancelling of the NBWA was to be heard on a fixed date, the same was not done by him. Rather, only on the sole Page No.# 39/46 ground that the Petitioner was not present personally on 13-12-2024, the direction for execution of the NBWA was issued. It is also seen that on 05-09-2024, though there was a direction for personal appearance of the Petitioner on 18-10-2024, the same was exempted by the learned Special Judge, PMLA and there was no specific direction of his personal appearance on the next date i.e., 12-12-2024 or 13-12-2024. It is also seen that after summonses were issued by the learned Special Judge, PMLA, no effort was made on behalf of the learned Special Judge, PMLA to issue any bailable warrant, rather he straightway issued the NBWA against the Petitioner. In this connection, the observations of the Hon'ble Apex Court in the case of Inder Mohan Goswami (Supra) being important, relevant paragraphs are extracted here in below:
Personal Liberty and the Interest of the State "50. Civilized countries have recognized that liberty is the most precious of all the human rights. The American Declaration of Independence, 1776, French Declaration of the Rights of Men and the Citizen, 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, 1966 all speak with one voice-liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law.
51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants.
52. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised society. Sometimes in the larger interest of the public and the State, it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.
When non-bailable warrants should be issued
53. Non-bailable warrant should be issued to bring a person to court when Page No.# 40/46 summons or bailable warrants would be unlikely to have the desired result. This could be when:
• it is reasonable to believe that the person will not voluntarily appear in court; or • the police authorities are unable to find the person to serve him with a summon; or • it is considered that the person could harm someone if not placed into custody immediately;
54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the Court, the summon or the bailable warrants should be preferred. The warrants either bailable or non- bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The Court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.
55. In complaint case, 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 Page No.# 41/46 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.
57. The court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant."
56. From the aforesaid principles as laid down by the Hon'ble Apex Court, it is clear that though the power is discretionary, the Court, whether the warrants are bailable or non-bailable, should never be issued without proper scrutiny of facts and complete application of mind, due to extremely serious consequences and ramifications which ensue on issuance of warrants. In a complaint case, at the first instance, the Court should direct serving of summons. If the accused seems to be avoiding the summons, the Court in the second instance, should issue a bailable warrant. In the third instance, when the Court is fully satisfied that the accused is avoiding court's proceeding intentionally the process of issuance of the non-bailable warrant should be resorted to. Personal liberty being paramount, courts at the first and second instance, needs to refrain from issuing non-bailable warrants. In this connection, the case of Raghuvansh Dewanchand Bhasin Vs. State of Maharastra , reported in (2012) 9 SCC 791 is being relevant, Para 10 of the aforesaid case is extracted herein below:
"10. It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically but only after recording satisfaction that in the facts and circumstances of the case it is warranted. The courts have to be extra-cautious and careful while directing issue of non-bailable warrant else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. At the same time, there is no gainsaying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain the rule of law and to keep the society in functional harmony, it is necessary to strike a balance between an individual's rights, liberties and privileges on the one hand, and the State on the other. Indeed, it is a complex Page No.# 42/46 exercise. As Cardozo, J. puts it "on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice." [Ed.: As observed by Cardozo, J. in People v. Defore, 242 NY 13, at 24: 150 NE 585, at 589 (1926)]."
57. In view of the aforesaid discussions and taking into account the entire facts of the case as well as the laws laid down by the Hon'ble Apex Court, this Court is of the considered opinion that the order dated 13-12-2024 whereby the learned Special Judge, PMLA Dimapur, Nagaland directed the execution of the NBWA is not based on the principles laid down by the Hon'ble Apex Court.
58. In view of the aforesaid findings and conclusion of this Court, the other submissions made by the respective parties are not required to be discussed and/or decided at this stage for deciding the instant criminal revision petition. Hence, the same are not considered.
59. In view of the aforesaid conclusion, the impugned order dated 13-12-2024 is set aside and quashed. This Court directs the learned Special Judge, PMLA, Dimapur, Nagaland to rehear the application i.e., I.A. No.230/2024 on its own merits as per the settled laws giving an opportunity to the Petitioner of hearing. Needless to say that till the aforesaid I.A. No.230/2024 is heard, the NBWA issued against the Petitioner shall be kept in abeyance.
60. As far as Criminal Appeal No. 1/2025 goes, this is an Appeal under Section 17 of the Fugitive Economic Offenders Act, 2018 (herein after referred to as the Act, 2018) read with Section 372 of the Code of Criminal Procedure,1973 for setting aside and/ or quashing the impugned Judgment & Order dated 22-01-2025 passed by the learned Special Judge, PMLA, Dimapur, Nagaland in I.A. No. 791 of 2024 arising out of ML Case No. 01/2024 (Directorate of Enforcement Vs. Mr. Bhupesh Arora) whereby partially allowing the Respondent's application under Section 4 read with Section 10 and 12 of the Act 2018 by declaring the Appellant as a Fugitive Economic Offender within the meaning of Section 2(1)(f) of the said Act.
61. Since the facts are same in the Appeal as that of the Criminal Revision Petition, Page No.# 43/46 the same are not repeated again. It is stated that though the case (ML Case No. 01/2024) was not fixed on 24-10-2024, the case record was put up along with I.A. No. 791 of 2024 filed by the Respondent praying for a declaration of the Appellant as a Fugitive Economic Offender under the provisions of the Act, 2018. On the aforesaid application, the learned Special Judge, PMLA fixed 12-12-2024 for reply and further hearing on I.A. No. 791 of 2024. On 12-12-2024, the counsel appearing for the Appellant prayed for some more time to file a reply in I.A. No. 791/2024. However, the matter was fixed on 13-12-2024. On 13-12-2024, the learned Special Judge, learned Special Judge allowed 1 (one) week's time to the Appellant to file his reply in I.A. No. 791/2024. However, rather than hearing the I.A. No. 230/2024, the learned Special Judge, PMLA directed the NBWA issued against the Appellant to be executed as the Appellant failed to be present personally before the Court, which was kept in abeyance. On 14-01-2025, the learned Special Judge, PMLA heard the arguments of both the parties in I.A. No. 791/2024 and reserved the order. On 22-01-2025, the learned Special Judge, PMLA partially allowed the prayers of the Respondent made in I.A. No. 791/2024 and thereby declared the Appellant as a Fugitive Economic Offender under the Act, 2018.
62. Mr. D. Das, the learned Senior counsel appearing on behalf of the appellant, primarily argued that there was no active warrant existing against the Appellant at the time of filing of the application by the Respondent for declaration of the Appellant as a Fugitive Economic Offender. He submits that the I.A. No. 791 of 2024 was premature, not maintainable and liable to be dismissed as the learned Special Judge, PMLA, vide his order dated 05-09-2024 directed the NBWA to be kept in abeyance and the I.A. No. 230 of 2024 to be re-heard giving an opportunity of hearing to the Appellant. He submits that since the NBWA was kept in abeyance, there was no active NBWA existing at that point of time against the Appellant. Therefore, the pre-requisites of the Act 2018 are not fulfilled in the instant case. He submits that the pre-condition as laid down in 2(1)(f) of the Act 2018 i.e., an individual against whom a warrant for arrest in relation to a Scheduled Offence has been issued by any Court of India, who (i) has left India so as to avoid criminal prosecution; or (ii) being abroad, refuses to return to Page No.# 44/46 India to face criminal prosecution, being not fulfilled in the instant case, the Appellant could not have been declared as Fugitive Economic Offender in the instant case.
63. The learned Senior Counsel submits that the learned Special Judge, PMLA failed to appreciate the literal and true meaning, scope and purport of the term "abeyance" in the context of the instant case as in the case in hand, the learned Special Judge, PMLA had directed that the I.A. No. 230 of 2024 to be re-heard, meaning thereby the NBWA issued was not active for purpose of the provisions of the Fugitive Economic Offenders Act, 2018. He submits that the expression "abeyance" is in fact equivalent to "suspension". Therefore, the learned Special Judge, PMLA passed the order dated 22- 01-2025 in violation of the provisions of the Fugitive Economic Offenders Act, 2018. The learned Senior Counsel submits that expression used in Section 10 of the Act, 2018 is "duly filed" which means that a valid warrant of arrest should predict the filing of any application under Section 4 of the aforesaid Act. Since in the instant case there was not valid warrant of arrest at the time of filing of the application by the respondent, the application of the respondent should have been rejected by the learned Special Judge, PMLA.
64. The learned Senior Counsel submits that the requirements under Section 2(1)(f)(i) of the aforesaid Act, 2018 are not fulfilled in the instant case as the requirements of Section 2(1)(f)(i) contemplates that in order to satisfy the definition under the aforesaid Section, the prosecution/ the respondent has to demonstrate that an accused has left India so as to avoid criminal prosecution. Therefore, there are two requirements under this Section i.e., (i) has left India and (ii) so as to avoid criminal prosecution. He submits that in the instant case there is nothing on record to prove that the Appellant had avoided criminal prosecution. He submits that in the instant case, the Appellant had responded to the very first summons that was issued by the learned Special Judge, PMLA to him. He submits that as the Appellant was duly represented by his counsel on 24-05-2024 before the learned Special Judge, PMLA, it cannot be said that the Appellant was avoiding the criminal prosecution. Therefore, he submits that by no means it could be said that the Appellant had avoided the prosecution by leaving India. He further submits that Section 2 (f)(ii) also cannot be Page No.# 45/46 said to have been fulfilled in the instant case as the requirement of fulfillment of Section 2(1)(f)(ii) shall arise only after the conditions under Section 2(1)(f)(i) are fulfilled. Therefore, he submits the requirement of Section 2(1)(f)(i) and 2(1)(f)(ii) being not fulfilled on the date of filing of the application under Section 4 of the aforesaid Act, 2018, the order passed by the learned Special Judge, PMLA on the application filed under Section 4 of the aforesaid Act, 2018 is bad in law and hence, the same is liable to be set aside and quashed.
65. On the other hand Mr. S.V. Raju, the learned ASGI submits that in the instant case the NBWA which was issued against the appellant was only kept in abeyance when the application under Section 4 of the aforesaid Act, 2018 was filed. Therefore, it cannot be said that the NBWA was not in existence. He submits that the fact that the NBWA was kept in abeyance, does not mean that the same has ceased to exist. In this connection, the learned ASGI has referred to the cases of Sudarshan Chits (1) Ltd. v. O. Sukumaran Pillai, reported in (1984) 4 SCC 657, Shree. Chamundi Mopeds Ltd. Vs. Chuch of South India Trust Association, reported in (1992) 3 SCC 1, CCE Vs. Space Telelink Ltd., reported in 2017 SCC OnLine Del 12910.
66. In view of the aforesaid submission, the learned ASGI submits that the first condition that NBWA has been issued by a competent court in India as required in Section 2(1)(f) of the aforesaid Act, 2018 stands fulfilled. In connection with the second condition, he submits that the Appellant was living abroad and was refusing to return to India to face criminal proceeding which could be seen from the affidavits sworn by the wife of the Appellant. He submits that in the Criminal Appeal as well as Criminal Revision Petition filed by the Appellant, has shown the residence of the Appellant as Dubai. Therefore, the contention of the appellant that the Appellant was not avoiding criminal prosecution needs to be rejected.
67. On consideration of the conclusion that has been arrived by this Court in the connected Criminal Revision Petition, this Court is of the view that the contentions and arguments made in the Criminal Appeal are not required to be gone into at this stage as this Court has, after hearing the Criminal Revision Petition, already come to a conclusion that the application filed by the Respondent (ED) for issuance of NBWA Page No.# 46/46 (I.A. 230 of 2024) is to be re-heard and decided by the learned Special Judge, PMLA. This Court has already set aside the order dated 13-12-2024 whereby the learned Special Judge, PMLA directed the execution of the NBWA, which was kept in abeyance by its earlier order. Therefore, since there is no active warrant for arrest pending against the Appellant, the Appellant cannot be declared as Fugitive Economic Offender under the Act 2018 at this stage. Consequently, the impugned order under the instant Appeal i.e., order dated 22-01-2025 needs to be set aside and quashed. Accordingly, the same is set aside and quashed.
68. This Court, however, hastens to add that once the application of the Respondent (ED) i.e., I.A. 230 of 2024 is heard and decided by the learned Special Judge, PMLA, the Respondent shall be at liberty to take action against the Appellant under the Act, 2018 if the same is permissible under the Laws.
69. Since the allegations against the Petitioner/ Appellant are grave in nature which have allegedly affected thousands of innocent investors all over India, it is desirable that further investigation and the trial must be completed at the earliest possible time. Therefore, it is directed that the learned Special Judge, PMLA, Dimapur, Nagaland shall re-hear and decide the I.A. No. 230 of 2024 within a period of Thirty (30) days of passing of this instant Judgment and Order.
70. Registry to produce and submit a copy of the instant Judgment & Order before the Special Judge, PMLA, Dimapur, Nagaland at the earliest.
71. In view of the aforesaid, the Criminal Revision Petition No. 3 of 2025 and Criminal Appeal No 1 of 2025 are disposed of as directed.
JUDGE Comparing Assistant