Information, Not Instruction: The Line the Supreme Court Drew Around the ED's Section 66(2) Letter

The Letter That Is Not a Warrant Section

66(2) of the Prevention of Money Laundering Act does one modest thing. It allows the Enforcement Directorate to pass information about a possible breach of some other law to the agency that enforces that law. The text creates a channel for information. It does not create a power to command. Everything in the Vijayan matter turns on whether practice has quietly converted the first into the second.

The rule as written, the rule as practised Under the Constitution's Seventh Schedule, police and public order sit in the State List, the list of subjects only States may legislate on.

A Kerala police officer who receives an ED intimation is therefore still a Kerala officer. He must decide for himself whether the material discloses an offence and whether the statutory conditions for investigating a public servant are met.

In this case that decision was never really made by the police. The ED wrote to the State police; a High Court single judge then ordered an FIR on October 9 under the Prevention of Corruption Act, relying on the ED's material.

According to reports, Kerala argued before the Supreme Court that the 2022 Vijay Madanlal Choudhary judgment treats such an intimation as a direction to register an FIR. The Bench was sceptical. In oral remarks during the hearing, Justice Joymalya Bagchi reportedly said that judgments should not be read like statutes and that the PMLA cannot act as an administrator over every other law.

He reportedly described Section 66(2) as an intimation, leaving the receiving agency to decide what the law requires. These were observations from the bench, not a ruling. But they mark where the law is heading.

Why the

order route mattered The Bench's actual holding is narrower and more technical. Because the FIR was registered pursuant to the High Court's order, rather than through the State's own action on the ED letter, the accused had the standing to appeal against it.

The Court set aside the refusal of leave, stayed the investigation for seven days and expressly offered no view on the interim relief the High Court might grant. The second safeguard in play is new. The Bench contrasted Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita with the old CrPC Section 156(3).

Before a Magistrate orders an investigation into a public servant's official acts, the new provision requires a report from that servant's superior officer and consideration of the servant's own account. The old provision required neither.

Section 17A of the Prevention of Corruption Act adds a further gate: prior approval before police inquire into official decisions. The Bench reportedly asked whether that approval had been sought. The constitutional silence here is deliberate. Parliament gave the ED a way to share information, but no way to compel action in another domain.

Courts are now filling that silence on the side of the receiving agency's own judgment and of the accused's right to be heard. For the exam, remember the distinction the Bench drew: a central agency may inform the State, but only the State's own statutory process can turn that information into an investigation.