If the correct legal position is that Chapter XII of the Cr PC would apply to the PMLA, then whether the offences under the PMLA are cognizable or non-cognizable, the Cr PC has to be followed. As explained in State of Haryana v. Bhajan Lal (MANU/SC/0115/1992 : 1992 Suppl. 1 SCC 335) and Lalita Kumari v. Govt. of Uttar Pradesh (MANU/SC/1166/2013 : 2014 2 SCC 1),
• if it is a cognizable offence, then the procedure of entering the substance of the information in a book under Section 154 Cr PC, forwarding a report to the Magistrate as mandated by Section 157 Cr PC, maintaining a case diary as mandated by Section 172 Cr PC and producing such case diary before the Magistrate upon arrest of the accused as mandated by Section 167 Cr PC has to be followed.
• If the offence is non-cognizable the procedure under Sections 155, 167 (1) and 172 Cr PC would have to be followed. The law in this regard has further been made clear in the decisions of the Supreme Court in Deepak Mahajan (supra) and Om Prakash v. Union of India (supra) and of this Court in Asmita Agarwal v. Enforcement Directorate (MANU/DE/1402/2001 : ILR (2001) II Del 643).
The Hon’ble Court was of the view that the offenses under PMLA are non-cognizable, and this issue has been referred to a higher Bench.
The court further held that there is no alternative to the DOE but to follow the Cr PC, except where there are specific provisions in the PMLA that provide an alternative procedure.
Given the mandate of Articles 21 and 22 of the Constitution of India the powers under the PMLA in relation to the offences under the PMLA, have to be governed by the Cr PC, if not by the PMLA. This is expressly recognised and acknowledged by Section 65 PMLA.
It is, therefore, not open to the DOE to choose to not follow the Cr PC in an area where the PMLA is silent.
Vijay Pal Dalmia, Advocate
Supreme Court of India & High Court of Delhi
Flat No. 2101, Olympia Tower-II,
Eldeco Utopia, Sector-93A, NOIDA, U.P., 201304, India
Mobile: +91 9810081079