A new order has been issued in ED regarding Section 61 of the Indian Justice Code i.e. IPC 120B. Top ED officials have instructed the investigating officers not to unnecessarily use criminal conspiracy to register money laundering cases. Actually, ED is a secondary agency which cannot take up any investigation on its own. ED files its ECIR based on the FIR 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.

Why did the ED director give such an order?

In recent times, PMLA cases have not stood up in courts due to the involvement of criminal conspiracy. For instance, in November 2023, in the Pavan Dibbar judgment, the Supreme Court held that 120B is not a single offence and is not sufficient to invoke PMLA. In March 2024, the Supreme Court quashed the ED PMLA case against Karnataka Deputy CM DK Shivakumar as the ED PMLA case was based on the 2018 IT findings. The ED had filed 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 arose from the 2019 ED findings. According to sources, the ED has registered another money laundering case in this case which is linked to the CBI. The FIR was registered in 2020.

this case was dismissed

Similarly, in April 2024, the Supreme Court quashed the PMLA case against Anil Tuteja and his son Yash Tuteja, saying that there was no "proceeds of crime" in the alleged Chhattisgarh liquor scam. However, the ED filed a new FIR in Chhattisgarh and later arrested Tuteja again. The Chhattisgarh ACB was questioning Tuteja when the ED summoned him and arrested him. In both these cases, the ED used Section 61 of the BNS along with PMLA but in the court, the ED could not prove the charge of criminal conspiracy against them. 

ED got a setback in Arvind Kejriwal case

Similarly, in the recent 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 the 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, the ED is also sharing the information with the state police under Section 66(2) of the PMLA. The state police can then file an FIR and the ED can later register a money laundering case, meaning that now the ED is investigating cases in complete coordination with other agencies.