56-WP-3159-2025.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 3159 OF 2025 1. Mr. Sunil J Anandpara, Age - 49 years S/0 Late Jugalkishor Anandpara Adult, Indian Inhabitant Address – Flat No. 6401 East, Lodha World One, Senapati Bapat Road, Lower Parel, Mumbai-400013. 2. M/s Dhwaja Commodity Services Pvt. Ltd, Through its Director, Sunil J Anandpara, Age 49- years Address – 602/603, 6th Floor, Sanjar Enclave, Opposite Milap Cinem S.V. Road, Kandivali West Mumbai~400067. ...Petitioners Versus 1. Directorate of Enforcement Mumbai Zonal Office – II Unit No: 301-302 Ceejay House, Dr. Annie Besant Road, Worli, Mumbai - 400018. Arjun 1 56-WP-3159-2025.doc 2. The State of Maharashtra ...Respondents ----- Mr. Sunny Punamiya a/w Kinnari Mehta and Amit Singh, for the Petitioners. Ms. Manisha Jagtap, for the Respondent – ED. Ms. Gauri Rao, APP for the Respondent – State. ------- CORAM : ASHWIN D. BHOBE, J. DATE : 22nd July, 2026. Oral Judgement : 1. Heard Mr. Sunny Punamiya, learned Advocate for the Petitioners, Ms. Manisha Jagtap, learned Counsel for Respondent No. 1 – ED and Ms. Gauri Rao, learned APP for Respondent – State. 2. Rule. Rule made returnable forthwith and with consent of the parties, heard finally. 3. By the present Petition, the Petitioners have assailed the Order dated 04.04.2025 passed by the Special Court under the PML Act, 2002, City Civil & Sessions Court, Mumbai (“Special Arjun 2 56-WP-3159-2025.doc Court”) in PMLA Special Case No. 630/2025, by which the Special Court has issued process against the Petitioners for the offence under Section 3 read with Section 70, punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (hereinafter “impugned Order”). The subject matter of the proceeding is ECIR bearing No. ECIR/MBZO/II/01/2023. 4. Petitioners have sought the following substantive reliefs in terms of prayer clauses (a) to (c): - “a. This Hon'ble Court be pleased to pass appropriate Order(s) and/or Direction(s) to call for the records and proceedings being PMLA Special Case No. 630/of 2025; b. This Hon'ble Court be pleased to pass appropriate Orders and/or issue appropriate Writ in order to check the legality, validity and constitutionality of the Order dated 4th April 2025 passed in the PMLA Special Case 101 No. 630 of 2025; c. After testing the legality, validity and constitutionality of the Order dated 4th April, 2025, this Hon'ble Court be pleased to pass appropriate Order(s) and/or Direction(s) to set aside and/or quash the Order dated 4th April 2025 passed in the PMLA Special Case No. 630 of 2025.” 5. Mr. Sunny Punamiya, learned Advocate for the Petitioners, submits that the Petitioners’ grievance is confined to the ground Arjun 3 56-WP-3159-2025.doc that cognizance in PMLA Special Case No. 630 of 2025 was taken by the Court of Sessions, designated as the Special Court under the PML Act, 2002, City Civil & Sessions Court, Mumbai (“Special Court”), on 04.04.2025, i.e. after the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS, 2023”) came into force, without affording a hearing to the Petitioners. He, by referring to Chapter XVI of the BNSS, 2023, submits that a pre-cognizance hearing must be afforded to the proposed Accused. He submits that this was not done in the present case, thereby violating the Petitioners’ statutory right and causing severe prejudice to the Petitioners. He therefore submits that the impugned Order is illegal. 6. The Hon’ble Supreme Court in the case of Kushal Kumar Agarwal v. Enforcement Directorate1, in paragraph Nos. 4 to 7 has held as follows :- “4. Section 223 of the BNSS corresponds to Section 200 of the Criminal Procedure Code, 1973 (hereinafter referred to as ‘the CrPC’). However, a proviso similar to the proviso to sub-section (1) of Section 223 does not find place in Section 200 of the CrPC. 1 2025 SCC OnLine SC 1221 Arjun 4 56-WP-3159-2025.doc 5. This Court has taken a consistent view that a complaint filed by the Enforcement Directorate under Section 44 (1)(b) of the PMLA will be governed by Sections 200 to 204 of the CrPC. This view has been taken by this Court in the cases of Yash Tuteja v. Union of India1 and Tarsem Lal v. Enforcement Directorate2. Therefore, the provisions of Chapter XVI, containing Sections 223 to 226, will also apply to a complaint under Section 44 of the PMLA. As the complaint has been filed after 1st July, 2024, Section 223 of the BNSS will apply to the present complaint. 6. The proviso to sub-section (1) of Section 223 puts an embargo on the power of the Court to take cognizance by providing that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. 7. In this case, admittedly, an opportunity of being heard was not given by the learned Special Judge to the appellant before taking cognizance of the offence on the complaint. Only on that ground, the impugned order dated 20th April, 2024, will have to be set aside.” 7. In the case of Parvinder Singh v. Enforcement Directorate2 in paragraph Nos. 32 to 37, The Hon’ble Supreme Court has held as follows:- “32. In such view of the matter, we are in absolute agreement with the decisions rendered by this Court in Tarsem Lal (supra), Yash Tuteja (supra) and Kushal 2 2026 SCC OnLine SC 903 Arjun 5 56-WP-3159-2025.doc Kumar Agarwal (supra), which we quote profitably. Tarsem Lal v. Enforcement Directorate, (2024) 7 SCC 61 “17. After carefully perusing the provisions of PMLA, we find that there is no provision therein which is in any manner inconsistent with Section 205 CrPC. Hence, it will apply to a complaint under PMLA. A summons is issued on a complaint to ensure attendance of the accused before the criminal court. If an accused is in custody, no occasion arises for a court to dispense with the personal attendance of the accused. We may note here that Section 205 empowers the court to grant exemption only when a summons is issued. Sub-section (2) of Section 205 provides for enforcing the attendance of the accused before the court at the time of the trial. If the accused who appears pursuant to the summons issued on a complaint were deemed to be in custody, the lawmakers would not have provided for Section …… *** 33. Now, we summarise our conclusions as under: 33.1. Once a complaint under Section 44(1)(b) PMLA is filed, it will be governed by Sections 200 to 205 CrPC as none of the said provisions are inconsistent with any of the provisions of PMLA; 33.2. If the accused was not arrested by ED till filing of the complaint, while taking cognizance on a complaint under Section 44(1)(b), as a normal rule, the court should issue a summons to the accused and not a warrant. Even in a case where the accused is on bail, a summons must be issued; 33.3. After a summons is issued under Section 204 CrPC on taking cognizance of the offence punishable under Section 4 PMLA on a complaint, if the accused appears before the Special Court pursuant to the summons, he shall not be treated as if he is in custody. Therefore, it is not necessary for him to apply for bail. However, the Special Court can direct the accused to furnish bond in terms of Section 88 CrPC; Arjun 6 56-WP-3159-2025.doc 33.4. In a case where the accused appears pursuant to a summons before the Special Court, on a sufficient cause being shown, the Special Court can grant exemption from personal appearance to the accused by exercising power under Section 205 CrPC;” *** (emphasis supplied) Yash Tuteja v. Union of India, (2024) 8 SCC 465 “6. The only mode by which the cognizance of the offence under Section 3, punishable under Section 4 PMLA, can be taken by the Special Court is upon a complaint filed by the Authority authorised on this behalf. Section 46 PMLA provides that the provisions of CrPC (including the provisions as to bails or bonds) shall apply to proceedings before a Special Court and for the purposes of CrPC provisions, the Special Court shall be deemed to be a Court of Sessions. However, sub-section (1) of Section 46 starts with the words “save as otherwise provided in this Act”. Considering the provisions of Section 46(1) PMLA, save as otherwise provided in PMLA, the provisions of the Criminal Procedure Code, 1973 (for short “CrPC”) shall apply to the proceedings before a Special Court. Therefore, once a complaint is filed before the Special Court, the provisions of Sections 200 to 204 CrPC will apply to the complaint. There is no provision in PMLA which overrides the provisions of Sections 200 to Sections 204 CrPC. Hence, the Special Court will have to apply its mind to the question of whether a prima facie case of a commission of an offence under Section 3 PMLA is made out in a complaint under Section 44(1)(b) PMLA. If the Special Court is of the view that no prima facie case of an offence under Section 3 PMLA is made out, it must exercise the power under Section 203 CrPC to dismiss the complaint. If a prima facie case is made out, the Special Court can take recourse to Section 204 CrPC.” (emphasis supplied) Kaushal Kumar Agarwal v. Directorate of Enforcement, 2025 SCC OnLine SC 1221. Arjun 7 56-WP-3159-2025.doc “5. This Court has taken a consistent view that a complaint filed by the Enforcement Directorate under Section 44(1)(b) of the PMLA will be governed by Sections 200 to 204 of the CrPC. This view has been taken by this Court in the cases of Yash Tuteja v. Union of India, (2024) 8 SCC 465, and Tarsem Lal v. Enforcement Directorate, (2024) 7 SCC 61. Therefore, the provisions of Chapter XVI, containing Sections 223 to 226, will also apply to a complaint under Section 44 of the PMLA. As the complaint has been filed after 1st July, 2024, Section 223 of the BNSS will apply to the present complaint. 6. The proviso to sub-section (1) of Section 223 puts an embargo on the power of the Court to take cognizance by providing that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. 7. In this case, admittedly, an opportunity of being heard was not given by the learned Special Judge to the appellant before taking cognizance of the offence on the complaint. Only on that ground, the impugned order dated 20th April, 2024, will have to be set aside.” (emphasis supplied) 33. Accordingly, we have no hesitation in holding that Sections 200 to 205 of the CrPC (now Sections 223 to 228 of the BNSS) would be applicable to proceedings under the PMLA. 34. A mere ministerial act cannot be termed as an “inquiry” under Section 2(1)(k) of the BNSS. Taking cognizance is nothing but an application of judicial mind. So long as the application of the judicial mind is not exercised, an inquiry cannot commence. It is the judicial notice of an offence by the Court which is relevant. While doing so, it is presumed that the Court would take note of the complaint along with the materials placed before it. 35. The learned ASG placed reliance upon the decision of this Court in Hardeep Singh (supra) to contend that in the facts of the instant case, the inquiry had been initiated upon filing of the prosecution complaint on 24.06.2024 which is, admittedly, prior to Arjun 8 56-WP-3159-2025.doc the commencement of the BNSS on 01.07.2024. We find that the said decision actually militates against the submission made by him, and would only quote the following paragraphs in the aforesaid decision: “26. In Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167, this Court held: (AIR p. 1169, para 9) “9. … once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.” 27. The stage of inquiry commences, insofar as the court is concerned, with the filing of the charge-sheet and the consideration of the material collected by the prosecution, that is mentioned in the charge-sheet for the purpose of trying the accused. This has to be understood in terms of Section 2(g) CrPC, which defines an inquiry as follows: “2. (g) ‘inquiry’ means every inquiry, other than a trial, conducted under this Code by a Magistrate or court.” 28. In State of U.P. v. Lakshmi Brahman, (1983) 2 SCC 372, this Court held that from the stage of filing of charge-sheet to ensuring the compliance with the provision of Section 207 CrPC, the court is only at the stage of inquiry and no trial can be said to have commenced. The above view has been held to be per incuriam in Raj Kishore Prasad v. State of Bihar, (1996) 4 SCC 495, wherein this Court while observing that Section 319(1) CrPC operates in an ongoing inquiry into, or trial of, an offence, held that at the stage of Section 209 CrPC, the court is neither at the stage of inquiry nor at the stage of trial. Even at the stage of ensuring compliance with Sections 207 and 208 CrPC, it cannot be said that the court is at the stage of inquiry because there is no judicial application of mind and all that the Magistrate is required to do is to make the case ready to be heard by the Court of Session.” Arjun 9 56-WP-3159-2025.doc (emphasis supplied) 36. As rightly held by this Court in Hardeep Singh (supra), even the stage of ensuring compliance with Sections 207 to 209 of the CrPC, 1973 cannot be termed as an inquiry because there is no application of judicial mind. In the facts of the instant case, the direction issued by the Special Court, vide order dated 24.06.2024, to number the complaint and, thereafter, post the matter on a future date for hearing on cognizance would certainly not come within the purview of an “inquiry” under Section 2(1)(k) of the BNSS. In such view of the matter, the aforestated contention raised by the learned ASG falls to the ground. 37. As already discussed, though the complaint under the PMLA was filed earlier, the cognizance was only taken subsequently, on 02.07.2024, by which time the BNSS had come into force. Admittedly, the appellant has not been heard at the time of taking cognizance. The mandate of a legislation which ensures the right of an accused to a fair trial, whose liberty is at stake, cannot be dispensed with. Thus, the contention of the learned ASG that prejudice caused due to non-hearing at the stage of cognizance will have to be shown by the accused cannot be accepted, as it is not a mere irregularity that would attract either Section 506 or 511 of the BNSS, but is an illegality that would vitiate the very proceedings." 8. Mrs. Manisha Jagtap, learned Special Counsel for the Respondent – ED, does not dispute that the Petitioners were not heard by the Special Court before it took cognizance. She does not contest the proposition of law laid down in Parvinder Singh (supra) and Kushal Kumar (supra). Arjun 10 56-WP-3159-2025.doc 9. In view of the above, the impugned order, only on the ground that the Petitioners were not afforded an opportunity of hearing before taking cognizance, is unsustainable. Accordingly, the impugned order dated 04.04.2025 passed in PMLA Special Case No. 630/2025 is quashed and set aside. As a consequence of setting aside the order dated 04.04.2025, the proceedings of ECIR bearing No. ECIR/MBZO/II/01/2023 are restored to the file of the Special Court at the stage of cognizance. 10. Mr. Sunny Punamiya, learned Advocate for the Petitioners and Ms. Manisha Jagtap, learned Special Counsel for the Respondent – ED, submit that the matter before the Special Court, is fixed on 28.07.2026. 11. Ms. Manisha Jagtap, learned Special Counsel for the Respondent – ED, submits that the Petitioners should appear before the Special Court on 28.07.2026 to avail the opportunity of hearing. She submits that the Petitioners should not insist on any further Notice. 12. Mr. Sunny Punamiya, learned Advocate for the Petitioners, Arjun 11 56-WP-3159-2025.doc on instructions, states that the Petitioners shall appear before the Special Court on 28.07.2026 and that no further notice is necessary. 13. In view of the above, this Petition is partly allowed. The Special Court is directed to afford the Petitioners an opportunity of hearing from the stage of taking cognizance. The said exercise must be completed within 8 weeks from 28.07.2026. Mr. Sunny Punamiya and Ms. Manisha Jagtap state that the parties will co- operate with the Special Court. 14. Rule is made absolute in the above-said terms. There shall be no order as to costs. (ASHWIN D. BHOBE, J.) Arjun 12 ARJUN KRISHNA RODGE Digitally signed by ARJUN KRISHNA RODGE Date: 2026.07.27 19:45:27 +0530