Short answer: Yes, you can apply, but it is difficult. Anticipatory bail is sought under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 438 CrPC), and the Supreme Court has held that the twin conditions in Section 45 PMLA apply to such applications too. The position is different once the Special Court has taken cognizance of the ED’s complaint: under Tarsem Lal (2024), an accused who was not arrested and appears on summons does not need bail at all.
Section 45 applies to pre-arrest bail
In Vijay Madanlal Choudhary v. Union of India (2022), the Supreme Court upheld the twin conditions of Section 45 and held that they apply to anticipatory bail as well. An applicant must therefore satisfy the court, after the Public Prosecutor is heard, that there are reasonable grounds for believing he is not guilty and is not likely to commit an offence while on bail. The proviso, covering persons under sixteen, women, the sick or infirm, and cases involving less than one crore rupees, remains relevant.
In practice, the strength of the application lies in documents: the source of the funds questioned, the transaction trail, the status of the predicate case, and a record of attending every summons. In Pankaj Bansal v. Union of India (2023), the Supreme Court said that evasive replies alone do not justify arrest and that the ED cannot expect an admission of guilt, which helps a person who has cooperated.
During investigation
Before a prosecution complaint is filed, the ED’s power to arrest under Section 19 is live. A person with a specific and real apprehension of arrest can seek anticipatory bail, and courts sometimes grant interim protection while the application is heard. Any protection order should be read closely for its scope, since it usually covers only the case named in it.
After the Special Court takes cognizance
In Tarsem Lal v. Directorate of Enforcement (16 May 2024), Justice Abhay S. Oka and Justice Ujjal Bhuyan held that once the Special Court takes cognizance of the complaint, the ED cannot arrest an accused named in it under Section 19. If the ED wants custody, it must apply to the Special Court, which may allow it only if custodial interrogation is required.
An accused who was not arrested during the investigation and appears before the Special Court on summons is not in custody, so he need not apply for bail. The court may require a bond under Section 88 CrPC (now Section 91 BNSS), and because that bond is only an undertaking, the twin conditions of Section 45 do not apply. If the accused does not appear, the court should first issue a bailable warrant, and a non-bailable warrant only if the bailable one cannot be served. The ED may still arrest a person who is not named as an accused in the complaint, if Section 19 is satisfied.
Related questions
Where do I file for anticipatory bail in a PMLA case?
Applications under Section 482 BNSS lie before the Court of Session or the High Court. In PMLA matters the designated Special Court is a Court of Session, and the usual course is to approach it first.
Do I need anticipatory bail if I have only been summoned?
Not necessarily. A Section 50 summons alone does not mean an arrest is planned, and courts expect a specific, reasoned apprehension. Many people summoned as witnesses never face arrest. Advice on the facts is essential before filing.
If I appear on summons after cognizance, will the Special Court apply Section 45?
No. Under Tarsem Lal (2024), an accused who appears on summons is not in custody and furnishes a bond under the BNSS provision for securing appearance. That bond is an undertaking, not bail, so the Section 45 twin conditions do not apply.
Can the ED arrest me after I get anticipatory bail?
Not in the case covered by the order, while it remains in force. The ED can, however, act in a different case. In Pankaj Bansal (2023), an arrest made under a second ECIR soon after interim protection in the first was set aside as arbitrary.
Practical points
- Assemble a source-of-funds file before applying.
- Keep proof of every summons attended and every document produced.
- After a complaint is filed, check whether you are named and whether cognizance has been taken.
- Read the scope of any protection order before relying on it.
Sources: LiveLaw on Tarsem Lal v. ED, 16 May 2024; Prem Prakash v. Union of India (text of Section 45); Pankaj Bansal v. Union of India, 3 Oct 2023.
For a confidential discussion on ED/PMLA matters, see ED and PMLA Defence.
General legal information only; not legal advice or solicitation.
