Ganesh Prasad Singh v. Union of India: ED arrest power after cognizance under PMLA

The facts in brief

The petitioner, Ganesh Prasad Singh, was named as an accused in a prosecution complaint filed by the Enforcement Directorate in a money-laundering matter. He had not been arrested at any point during the agency's investigation. After the complaint was filed, the Special Court took cognizance of the offence. Apprehending that the ED would now arrest him under Section 19 of the Prevention of Money Laundering Act, 2002 — that is, after cognizance, on a complaint where he had never been in custody — the petitioner moved the Patna High Court for anticipatory bail in Criminal Miscellaneous No. 68054 of 2024.

The petition therefore presented a clean version of a recurring post-cognizance question: what becomes of the ED's coercive power of arrest under Section 19 when the agency has chosen to complete its investigation and lay its complaint without ever arresting the person it has named as an accused. Justice Satyavrat Verma, sitting as a single judge, decided the matter on 12 February 2025.

The statutory architecture of Section 19

Section 19 PMLA is the provision under which the ED arrests. It permits an authorised officer, on the basis of material in his possession and after recording reasons in writing, to arrest a person where he has "reason to believe" that the person is guilty of an offence under the Act. The arrested person must be informed of the grounds of arrest, and the arrest is then subject to the surrounding scheme of remand and bail, including the twin conditions of Section 45.

Section 19 is, however, an investigation-stage power. It operates while the ED is gathering material and building its case. The conceptual difficulty addressed in Ganesh Prasad Singh arises at the point where the investigation has ended: the ED has filed its complaint under Section 44(1)(b), and the Special Court has applied its mind and taken cognizance. At that juncture the proceeding has shifted from investigation to trial, and the accused — if never arrested — appears before the Special Court on summons rather than in custody.

What the Court held

Justice Verma held that the ED's Section 19 arrest power does not survive into the post-cognizance phase where the accused was never arrested during the investigation. The reasoning tracks the logic of the Supreme Court's decision in Tarsem Lal: the Section 19 mechanism is a power exercisable during investigation, and once the complaint is filed and cognizance is taken on a person who was never arrested, that power is exhausted. The accused who appears in answer to the Court's summons is not in "custody" in the Section 19 sense, and cannot be arrested afresh under that provision as though the investigation were still live.

The practical consequence is that if the ED, after cognizance, wishes to take such an accused into custody, it cannot simply invoke Section 19; it must approach the Special Court. The anticipatory-bail relief sought before the High Court was accordingly moulded around this principle — the apprehension of a Section 19 arrest, in these specific circumstances, does not survive the taking of cognizance, and the petitioner's anxiety on that score was addressed by the legal position itself.

The Tarsem Lal foundation

The decision is best understood as a High Court application of Tarsem Lal v. Directorate of Enforcement, one of the most consequential PMLA-procedure clarifications of 2024. In Tarsem Lal, the Supreme Court addressed the position of an accused who appears before the Special Court after cognizance on a complaint in which he was never arrested. The Court held that such an accused is not required to apply for bail under the Section 45 twin conditions merely to secure his appearance, because he is not in custody; and that the ED's power to arrest under Section 19, being an investigation-stage power, cannot be exercised after the Special Court has taken cognizance of the complaint against a person who was not arrested during the investigation.

Ganesh Prasad Singh operationalises that holding at the protective stage. Where Tarsem Lal explained the position of the un-arrested accused once cognizance is taken, the Patna High Court applied the same logic to defuse the fear of a post-cognizance Section 19 arrest. The doctrinal move is identical: the Section 19 power is spent, and the trial proceeds against the accused on summons, with any future custody decision routed through the Special Court rather than through a fresh exercise of the arrest power.

Why the ruling matters

The significance of the decision lies in the discipline it imposes on the sequencing of ED action. An agency that elects to complete its investigation and file its complaint without arresting an accused cannot keep the threat of a Section 19 arrest hanging over that accused indefinitely, to be deployed after the trial has effectively begun. The choice not to arrest during investigation carries a consequence: it forecloses the unilateral Section 19 route once cognizance has been taken.

For practitioners, the ruling is a recurring template. In any ED anticipatory-bail matter where the complaint has been filed and cognizance taken on a never-arrested accused, the Tarsem Lal line — as applied in Ganesh Prasad Singh — supplies the answer to the post-cognizance arrest apprehension. It sits alongside the broader "grounds of arrest" jurisprudence developed in Pankaj Bansal and Prabir Purkayastha, which polices how a Section 19 arrest must be communicated when it is made; Ganesh Prasad Singh polices whether the power may be invoked at all once the case has moved past cognizance.

The limits of the holding

It is worth being precise about what the decision does and does not say. It does not hold that the ED can never arrest a PMLA accused after a complaint is filed. It addresses the specific configuration in which the accused was not arrested during the investigation. Where the agency exercises Section 19 during investigation, the surrounding remand-and-bail scheme applies in the usual way. The holding is also conditioned on cognizance having been taken: it is the application of judicial mind to the complaint, under Section 44(1)(b), that marks the transition out of the investigation phase and exhausts the standalone Section 19 power.

The decision likewise leaves untouched the Special Court's authority. If, post-cognizance, custody becomes necessary, the route lies through the trial court rather than through the agency's own arrest power. The effect is to channel the custody decision to a judicial forum, consistent with the post-cognizance posture of the proceeding.

The relationship to the wider PMLA-procedure line

It is worth situating the decision within the procedural jurisprudence that has accumulated around the ED's coercive powers. Three distinct questions have been worked out in recent years, and they should not be conflated. The first is how a Section 19 arrest must be effected when it is made — the line developed in Pankaj Bansal and Prabir Purkayastha, which requires that the grounds of arrest be furnished in writing so that the arrested person can meaningfully exercise the right to consult counsel and to seek release. The second is whether the Section 19 power may be exercised at all once the case has crossed into the trial phase — the question Tarsem Lal settled and Ganesh Prasad Singh applies. The third is the terms on which an accused already in custody may be released — the Section 45 twin-conditions enquiry.

Ganesh Prasad Singh belongs squarely to the second category. It does not modify the grounds-of-arrest discipline, nor does it engage the Section 45 bail threshold. Its contribution is to fix the temporal boundary of the arrest power: the power is investigative, and it does not survive the transition to trial where the accused was never arrested. Keeping these three strands analytically separate is important in practice, because an answer in one register does not dictate the answer in another. An accused protected by the cognizance-stage rule may still, if later taken into custody by leave of the Special Court, face the Section 45 enquiry on its own terms; and an accused arrested during investigation enjoys the grounds-of-arrest protections without the benefit of the cognizance-stage bar.

The cumulative effect of these lines is a more disciplined, statute-anchored ED practice — one in which the extraordinary powers conferred by the Act are read against the Act's own sequencing rather than as free-standing instruments available at every stage of a proceeding.

Related on Valkya

• Parvinder Singh v. Directorate of Enforcement: the BNSS Section 223 pre-cognizance hearing
• Vijay Madanlal Choudhary v. Union of India: the PMLA framework upheld
• Prabir Purkayastha v. State (NCT of Delhi): grounds of arrest in writing
• Hemant Soren v. Directorate of Enforcement: PMLA bail and the Section 45 twin conditions

Sources

1. LiveLaw — "ED Loses Power To Arrest U/S 19 Of PMLA After Cognizance Is Taken If Arrest Was Not Made During Investigation: Patna High Court": https://www.livelaw.in/high-court/patna-high-court/patna-high-court-ed-lose-power-arrest-section-19-pmla-after-cognizance-taken-no-arrest-made-during-investigation-289571
2. JurisHour — "ED Loses Power To Arrest Once Special Court Takes Cognizance: Patna High Court": https://www.jurishour.in/company-pmla/ed-loses-power-to-arrest-special-court-cognizance-patna-high-court/
3. Taxscan — "ED has no Power to Arrest when Special Court takes Cognizance under PMLA: Patna HC [Read Order]": https://www.taxscan.in/ed-has-no-power-to-arrest-when-special-court-takes-cognizance-under-pmla-patna-hc/489782