A new order has been issued in ED regarding Section 61 of the Indian Code of Justice i.e. IPC 120B. Senior ED officials have strictly instructed the investigating officers that “do not unnecessarily use criminal conspiracy to register money laundering cases. Let us tell you that ED is a secondary agency which cannot take up any investigation on its own. ED registers its ECIR on the basis of FIRs of other agencies. According to sources, ED Director Rahul Naveen said in his order that “PMLA i.e. Prevention of Money Laundering Act is very detailed in itself. It has about 150 clauses. Therefore, instructions have been given to use these clauses instead of BNS 61. In fact, in recent times, Prevention of Money Laundering Act (PMLA) cases have not stood in the courts due to involvement in criminal conspiracy.
120B is not a single offense and it is not enough to apply PMLA
In the Pavan Dibbur verdict in November 2023, the Supreme Court had said that 120B is not a single offense and it is not enough to apply PMLA. In March 2024, the Supreme Court quashed the ED’s PMLA case against Karnataka Deputy CM DK Shivakumar as the ED’s PMLA case was based on the IT findings of 2018. The ED had registered a PMLA case by adding section 120B of the IPC. DK Shivakumar was arrested in September 2019. However, the ED had filed a chargesheet in 2019 itself. DK Shivakumar got relief in the 2019 ED case. The Supreme Court rejected his plea to quash the CBI corruption case, which emerged from the 2019 ED findings. According to sources close to the case, the ED has registered another money laundering case in this case which is linked to the CBI. The FIR was registered in 2020.
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ED can register a money laundering case only after the state police registers an FIR
Similarly, recently in the Delhi Excise scam, BNS 61 (formerly 120B) was used against most of the accused including former Chief Minister Arvind Kejriwal, Deputy CM Manish Sisodia, but at the time of opposing bail, the investigating agency could not prove it and almost all the accused jailed in the excise scam got bail from the Supreme Court. If sources are to be believed, if they find any additional evidence during the search, then the ED also shares the information with the state police under section 66 (2) of PMLA. ED can register a money laundering case only after the state police registers an FIR. That means now ED is investigating the cases in complete coordination with other agencies.
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