Bombay High Court
Sunil J Anandpara And Anr vs Directorate Of Enforcement And Anr on 22 July, 2026
CNR No : HCBM010310042025
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 903Arjun 5
56-WP-3159-2025.docKumar 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
+0530Arjun 12
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