SUNIL J ANANDPARA AND ANRversusDIRECTORATE OF ENFORCEMENT AND ANR

                                                     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.



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 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


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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

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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




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              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




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        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;


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        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.



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        “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
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        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.”
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                                              (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).

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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,

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                     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.)




        Digitally
        signed by
        ARJUN
ARJUN   KRISHNA
KRISHNA RODGE
RODGE   Date:
        2026.07.27
        19:45:27
        +0530




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