If the ED Has Summoned You, Arrest Is a Real Possibility.
The ED can arrest without a warrant under Section 19 PMLA once its officer records reasons to believe you are guilty.
Protection has to be sought before arrest. After arrest the remedy becomes regular bail under the stricter twin conditions.
Do not assume bail in the underlying FIR protects you. The ED case is separate and needs its own protection.
Do not go to the ED office without legal advice if you have reason to fear arrest.
A PMLA case runs on two tracks: the “scheduled offence” FIR (for example cheating or bank fraud) and the ED's own proceedings. Each track needs its own bail strategy, and since the BNSS came into force the statutory references have changed as well.
This page explains how anticipatory bail works in PMLA and BNSS-era matters in Delhi NCR. For ordinary FIR matters outside the PMLA, see our general anticipatory bail lawyer Delhi page. If you have only just received a summons, start with our ED and CBI summons response page.
What Changed: Section 438 CrPC Is Now Section 482 BNSS
The BNSS replaced the CrPC from 1 July 2024. Where the FIR was registered on or after that date, the BNSS and BNS govern. Proceedings already pending on that date generally continue under the older code. Which regime applies is the first thing a bail lawyer confirms. Our note on anticipatory bail under Section 482 BNSS covers the transition in more detail.
| Subject | CrPC (old) | BNSS (new) |
|---|---|---|
| Anticipatory bail | Section 438 | Section 482 |
| Notice of appearance instead of arrest | Section 41A | Section 35(3) |
| Bail in non-bailable offences (Magistrate) | Section 437 | Section 480 |
| Special powers of High Court / Sessions Court on bail | Section 439 | Section 483 |
| Police summons to witnesses | Section 160 | Section 179 |
| Production of documents / things | Section 91 | Section 94 |
| Seizure and freezing of property | Section 102 | Section 106 |
| Inherent powers of the High Court | Section 482 | Section 528 |
Anticipatory bail
- CrPC (old)
- Section 438
- BNSS (new)
- Section 482
Notice of appearance instead of arrest
- CrPC (old)
- Section 41A
- BNSS (new)
- Section 35(3)
Bail in non-bailable offences (Magistrate)
- CrPC (old)
- Section 437
- BNSS (new)
- Section 480
Special powers of High Court / Sessions Court on bail
- CrPC (old)
- Section 439
- BNSS (new)
- Section 483
Police summons to witnesses
- CrPC (old)
- Section 160
- BNSS (new)
- Section 179
Production of documents / things
- CrPC (old)
- Section 91
- BNSS (new)
- Section 94
Seizure and freezing of property
- CrPC (old)
- Section 102
- BNSS (new)
- Section 106
Inherent powers of the High Court
- CrPC (old)
- Section 482
- BNSS (new)
- Section 528
Can You Get Anticipatory Bail Against the ED?
Yes, but the bar is higher. The PMLA does not exclude anticipatory bail, but Section 45 requires the court to be satisfied that there are reasonable grounds to believe (1) the accused is not guilty of the offence and (2) the accused is not likely to commit any offence while on bail. There is a relaxation for persons under 16, women and the sick or infirm.
The Supreme Court struck down an earlier version of the twin conditions in Nikesh Tarachand Shah (2017); Parliament re-enacted them in 2018, and Vijay Madanlal Choudhary (2022) upheld Section 45. The application must therefore address the twin test directly and not rely only on general bail principles — which is where our ED lawyer Delhi practice focuses.
| Stage of the ED case | Arrest risk | Typical remedy |
|---|---|---|
| Summons under Section 50; no complaint filed | Arrest under Section 19 possible on appearance | Anticipatory bail (Section 482 BNSS) where apprehension is genuine and specific; writ in suitable cases |
| Investigation ongoing or complaint filed, cognizance not yet taken | Arrest still possible | Anticipatory bail or regular bail, applying the twin conditions |
| Special Court has taken cognizance and summoned you | ED must seek custody from the court | Appear and seek regular bail on bond; Tarsem Lal v. Directorate of Enforcement (2024) holds the twin conditions need not be satisfied at this point |
Summons under Section 50; no complaint filed
- Arrest risk
- Arrest under Section 19 possible on appearance
- Typical remedy
- Anticipatory bail (Section 482 BNSS) where apprehension is genuine and specific; writ in suitable cases
Investigation ongoing or complaint filed, cognizance not yet taken
- Arrest risk
- Arrest still possible
- Typical remedy
- Anticipatory bail or regular bail, applying the twin conditions
Special Court has taken cognizance and summoned you
- Arrest risk
- ED must seek custody from the court
- Typical remedy
- Appear and seek regular bail on bond; Tarsem Lal v. Directorate of Enforcement (2024) holds the twin conditions need not be satisfied at this point
Two Proceedings, Two Protections
Bail in the underlying FIR does not automatically protect you in the ED case, and the reverse is also true. At the same time, money laundering depends on the scheduled offence: in Vijay Madanlal the Supreme Court held that if a person is discharged or acquitted of the scheduled offence, or the FIR is quashed, there can be no money-laundering offence against that person. A coordinated strategy across both proceedings is essential — particularly where a partner or director has been arrested and company accounts are exposed.
Where to File Across Delhi NCR
- Delhi: the designated Special Court or Sessions Court, then the Delhi High Court, then the Supreme Court
- Gurugram and Faridabad (Haryana): Sessions Court there, then the Punjab and Haryana High Court
- Noida and Ghaziabad (Uttar Pradesh): Sessions Court there, then the Allahabad High Court
- Transit anticipatory bail:where arrest by another state's police is feared, a Delhi court may grant limited transit protection (Priya Indoria v. State of Karnataka, 2023) so that you can approach the proper court
What the Court Looks At
- Nature and gravity of the allegation and the role specifically attributed to you
- Whether you have cooperated with summons and investigation so far
- Flight risk, passport, roots in the community and family ties
- Likelihood of tampering with evidence or influencing witnesses
- Whether custodial interrogation is actually necessary
- For PMLA: the twin conditions of Section 45 and the documentary trail of proceeds of crime
Duration and Conditions
In Sushila Aggarwal v. State (NCT of Delhi) (2020), a Constitution Bench held that anticipatory bail is not automatically limited in time and can ordinarily continue until the end of trial, though a court may fix a limit for reasons. Usual conditions include joining the investigation, surrendering the passport, not leaving India without permission and not tampering with evidence. Breach of conditions can lead to cancellation.
The same approach applies in related economic-offence matters — see our notes on a director's fear of GST arrest and the Rs. 640 crore cyber fraud case: bail strategy.
