Directorate of Enforcement Vs Bhupesh Arora

Heard Mr. Zoheb Hussain, learned S.P.P assisted by Mr. Ankit Khanna, learned S.P.P and Mr. Keduvi Zhotso, learned counsel appearing for the E.D/applicant. Also heard Mr. D. Das, learned Sr. Advocate assisted by Mr. S. Das, learned counsel for the opposite party/respondent.

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This I.A(Crl) has been filed with two prayers;

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Page No.# 2/8 (i) To allow the present application seeking for urgent hearing of the connected Criminal Revision Petition 3/2025 in view of the subsequent developments in connection with the FIR No. 24/2024 registered by the Cyber Crime Police Station, Faridabad.

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ii) For clarification of the orders dated 07.03.2025, 13.03.2025, 21.03.2025, 28.03.2025, 28.04.2025, 26.05.2025, 23.06.2025 and also with an additional prayer that the said orders do not put any embargo on the exercise of the power under section 19 of Prevention of Money Laundering Act, 2002 (PMLA).

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2. Mr. Z. Hussain, learned counsel appearing for the applicant states that vide order dated 07.03.2025, a direction was given that no coercive action may be taken against the petitioner and the same order was passed in respect of the instant Criminal Revision Petition and thereafter, he places the order dated 21.03.2025 by which this Hon’ble Court had stayed the operation of the impugned order dated 13.12.2024 as well as non-bailable warrant of arrest issued in pursuant to the said order till the next date.

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3. The learned counsel prays for a clarification as to whether in view of the order dated 21.03.2025, the order dated 07.03.2025 still subsist or not and then he has also prayed that subsequent orders may also be clarified which were passed in the instant revision petition as well as in other analogous petition. He has also submitted that the orders passed in the various applications such as the criminal revision petition, criminal appeal as well as the I.A(Crl.), have not put any embargo on the department to make arrests under section 19 of PMLA.

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4. Mr. D. Das, learned Sr. counsel assisted by Mr. S. Das,

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Page No.# 3/8 learned counsel for the opposite party/respondent submits that the said orders do not need any clarification inasmuch as the order dated 07.03.2025 which was passed in respect of three applications that is the Criminal Revision Petition No.3/2025 i.e. the present petition as well as the Criminal Appeal No.1/2025 and the I.A(Crl) No. 4/2025 was a common order. He thereafter submits that although order dated 07.03.2025 was passed commonly in the said three applications, the language in the said order reflects that the same was passed in connection with I.A (Crl.) No. 4/2025. He thereafter placed the order dated 07.04.2025 passed in connection with the I.A (Crl.) No. 4/2025 filed in Criminal Appeal No. 1/2025 by which the learned court had stayed the order dated 22.01.2025 by which the petitioner was declared as a fugitive economic offender and by that order, the I.A (Crl.) No. 4/2025 was allowed and disposed of. As such, he submits that the order dated 07.03.2025 got merged which was passed in connection with the said I.A (Crl.) and that the order dated 07.03.2025 does not subsists any longer and as such, he stated that there is no need for any further clarification of the said order. He further states that even if the order dated 07.03.2025 is considered to be also in connection with the instant criminal revision i.e. Criminal Revision Petition No.3/2025, the same got merged with the subsequent order dated 21.03.2025, by which the NBW was stayed. He further submitted that the clarification required in the subsequent orders have no basis since the subsequent orders were only passed by which the interim order of staying the NBWA were extended. As such, he prays that the clarification sought for in respect of the orders have no basis at all. He further submits that the further prayer of the applicant that there

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Page No.# 4/8 is no embargo on the exercise of the power under section 19 of the PMLA, he submits that the same is not required in the facts and circumstances of the case since it has no connection with the criminal revision filed by the petitioner in which this I.A(Crl) has been filed. He placed the judgment of the Hon’ble Supreme Court passed in the case of Tarsem Lal -versus- Directorate of Enforcement Jalandhar Zonal Office , reported in (2024) 7 SCC 61 , by which the Hon’ble Apex Court had recorded the finding that the ED has no power to arrest the offender after the cognizance is taken by the trial court. He placed the paragraph-30 & 31 which is reproduced herein below;

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“ 30. Once cognizance is taken of the offence punishable under Section 4 of the PMLA, the Special Court is seized of the matter. After the cognizance is taken, the ED and other authorities named in Section 19 cannot exercise the power of arrest of the accused shown in the complaint. The reason is that the accused shown in the Complaint are under the jurisdiction of the Special Court dealing with the complaint. Therefore, after cognizance of the complaint under 44(1)(b) of the PMLA is taken by the Court, the ED and other authorities named in Section 19 are powerless to arrest an accused named in the complaint. Hence, in such a case, an apprehension that the ED will arrest such an accused by exercising powers under Section 19 can never exist.

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31. We are informed across the Bar by the learned counsel of the appellants that some of the Special Courts under the PMLA are following the practice of taking the accused into custody after they appear pursuant to the

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Page No.# 5/8 summons issued on the complaint. Therefore, the accused are compelled to apply for bail or for anticipatory bail apprehending arrest upon issuance of summons. We cannot countenance a situation where, before the filing of the complaint, the accused is not arrested; after the filing of the complaint, after he appears in compliance with the summons, he is taken into custody and forced to apply for bail. Hence, such a practice, if followed by some Special Courts, is completely illegal. Such a practice may offend the right to liberty guaranteed by Article 21 of the Constitution of India. If the ED wants custody of the accused who appears after service of summons for conducting further investigation in the same offence, the ED will have to seek custody of the accused by applying to the Special Court. After hearing the accused, the Special Court must pass an order on the application by recording brief reasons. While hearing such an application, the Court may permit custody only if it is satisfied that custodial interrogation at that stage is required, even though the accused was never arrested under Section 19. However, when the ED wants to conduct a further investigation concerning the same offence, it may arrest a person not shown as an accused in the complaint already filed under Section 44(1)(b), provided the requirements of Section 19 are fulfilled. ”

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5. Mr. Das, therefore submits that it is made clear by the Hon’ble Supreme Court that in a case once cognizance is taken and the ED seek custody of the accused, ED has to do it by applying to the Special Court. In respect of the said submission Mr. Hussain, learned counsel for the ED submits that in the said judgment it is

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Page No.# 6/8 also reflected that if the ED wants to conduct further investigation concerning the same offence he may arrest the accused not shown as the accused in the complaint. He placed paragraph-33.10 of the said judgment wherein, it is reflected that if ED wants to arrest a person after the cognizance is taken, the ED will have to seek custody of the accused by applying before the Special Court and as such, he submits that ED is not prohibited to arrest the accused person even after the cognizance is taken.

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6. Heard the learned counsels for the parties. It is apparent that the present Interlocutory Application with the two aforesaid prayers was filed in the Criminal Revision Petition No. 3/2025. This Criminal Revision Petition was filed by the petitioner i.e., the respondent in the I.A with prayer for quashing of the order dated 13.12.2024 by which the learned Trial Court directed for execution of warrant of arrest against the petitioner, which was kept in abeyance and when this petition was taken up along with Criminal Appeal No. 1/2025 and I.A(Crl) No. 4/2025 (which was filed in Criminal Appeal No. 1/2025), this Hon’ble Court passed the order dated 07.03.2025, by which no coercive action was directed to be taken against the petitioner. Thereafter, on 13.03.2025, this Hon’ble Court passed an order that interim order passed on 07.03.2025 shall continue and the same was made operational till 21.03.2025. In the said order dated 13.03.2025, it was stated that the order would be valid till 21.03.2025, the date on which the hearing on the interim prayer in I.A(Crl) No. 4/2025 was fixed. On 21.03.2025, an order was passed in Criminal Revision Petition No. 3/2025 suspending the operation of the impugned order dated 13.12.2024 as well as the non-bailable warrant of arrest and the said stay order was made

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Page No.# 7/8

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operational till the next date i.e., 28.03.2025.

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7. The Interlocutory Application (Crl) No. 4/2025 was taken up for hearing on 07.04.2025 and on that day, the learned Court stayed the impugned order dated 22.01.2025 and the said I.A was disposed of. As such, it is noticed that the order dated 07.03.2025 no longer exist as I.A(Crl) No. 4/2025 was disposed of. The subsequent orders for which a clarification was sought for by the applicant were in respect of continuation of the interim orders passed in Criminal Revision Petition No. 3/2025.

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8. Further, this is an application filed in the Criminal Revision Petition No. 3/2025. The said revision petition was filed by the petitioner and the applicant in the I.A was arrayed as a respondent. It is no res integra that the respondent in a petition filed by the petitioner cannot pray for reliefs in his favor. He can only contest the petition filed by the petitioner. However, there are specific circumstances where the respondents may seek relief such as, through counter claim or separate petition depending on the nature of the case. The Hon’ble Supreme Court has consistently held that a respondent’s ability to seek relief is limited to the scope of the petition. The primary purpose of a respondent’s response is to address the petitioner’s claim and not to introduce new claims. The respondents cannot seek independent relief in a petitioner’s petition unless reliefs are incidental. In writ petitions, the respondent’s role is limited to defending the case or seeking dismissal of the petition. Any independent relief must be sought through separate petition or counter claim. The Hon’ble Supreme Court had noted that allowing respondents to seek independent reliefs in the same petition could lead to procedural complications and the same would expand the

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Page No.# 8/8 scope of the case beyond the petitioner’s intent. It is reiterated that the instant Criminal Revision Petition No. 3/2025 was for only setting aside the order dated 13.03.2025 by which non-bailable warrant was issued to the petitioner. Further, prayer made by the applicant that the orders passed in various petitions does not prohibit him from exercising his power under Section 19 of PMLA is misplaced in the facts of the present case. The said issue raised by the applicant has no connection whatsoever with the criminal revision petition filed by the petitioner. Further, no prayer can be sought for by the respondents in a petition filed by the petitioner. As such, it is not required under the law to deliberate on the exercise of power of the E.D under Section 19 of the PMLA in the present case.

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9. As far as the first prayer of urgent hearing of the Criminal Revision Petition No. 3/2025, is concerned, the same is allowed. The Criminal Revision Petition may be listed for hearing as soon as possible on a date to be fixed by the Registry. Further, the applicant is at liberty to file an affidavit in the Criminal Revision Petition bringing into record the subsequent events.

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10. I.A is disposed of.

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Sd/-

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JUDGE

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Comparing Assistant

Directorate of Enforcement v. Bhupesh Arora

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Directorate of Enforcement v. Bhupesh Arora

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