Birendra Singh Kandari & Others vs State Of Uttarakhand & Another on 8 July, 2026

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    Uttarakhand High Court

    Birendra Singh Kandari & Others vs State Of Uttarakhand & Another on 8 July, 2026

                                                UKHC010117162025
    
    
    
                                                           2026:UHC:5576
    
    
     IN THE HIGH COURT OF UTTARAKHAND
                            AT NAINITAL
       CRIMINAL MISC. APPLICATION No.1280 of 2025
    
    Birendra Singh Kandari & others                        --Applicants
    
                                   Versus
    
    State of Uttarakhand & Another                      --Respondents
    
    
    ----------------------------------------------------------------------
    

    Presence:-

    Mr. Himanshu Pal, learned counsel for the applicants.
    Mr. Vipul Painuli, learned A.G.A. for the State
    Ms. Monika Pant, learned counsel for the respondent no.2 through
    V.C.

    ———————————————————————-
    Hon’ble Siddhartha Sah, J. (oral)

    By means of the present criminal misc. application

    under Section 528 of Bharatiya Nagarik Suraksha Sanhita,

    2023 (hereinafter referred to as “BNSS, 2023”), the applicants

    have sought to quash the Criminal Misc. No.396 of 2025,

    “Directorate of Enforcement vs. Birendra Singh Kandari &

    others”, arising out of ECIR No.ECIR/DNSZO/01/2024,

    (dated 31.01.2024), under Section 3/4 of the Prevention of

    Money Laundering Act, 2002 (hereinafter referred to as “the

    PMLA Act“), registered at P.S. Enforcement Directorate,

    Dehradun as well as the impugned summoning order dated

    18.07.2025 passed by learned Special Judge, PMLA/District

    & Sessions Judge, Dehradun.

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    2. At the outset, learned counsel for the applicants

    would draw the attention of the Court to Annexure No.10

    (Page No.222 of the present application), which is sought to

    be assailed by means of the present criminal misc.

    application under Section 528 of BNSS, 2023.

    3. A perusal of the said document would reveal that

    there is no separate summoning order on record. Rather,

    Annexure No. 10 comprises notices/summons dated

    18.07.2025.

    4. Learned counsel for the respondent no.2 would

    submit that the applicants have been issued a pre-cognizance

    notice, as is evident from the order dated 14.07.2025, which

    has been annexed as Annexure No.9 to the counter affidavit

    filed on behalf of the respondent no.2.

    5. A perusal of the order dated 14.07.2025 passed by

    the learned Special Judge, PMLA/District & Sessions Judge,

    Dehradun would reveal that, by the order dated 14.07.2025,

    it was directed that notices be issued to the accused for

    hearing on the point of cognizance and the file be put up for

    hearing on cognizance on 04.08.2025. Thus, the learned

    counsel for the respondent no.2 would submit that the

    present criminal misc. application is totally misconceived

    and, in fact, pre-mature and there could not have been any

    challenge to a simplicitor summons/notice dated 18.07.2025.

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    6. In this regard, learned counsel for respondent no.

    2 has drawn the attention of the Court to Section 46 of the

    PMLA Act, 2002, which provides for the application of the

    provisions of the Code of Criminal Procedure, 1973 to

    proceedings before a Special Court. In the present case, by

    virtue of the coming into force of the Bharatiya Nagarik

    Suraksha Sanhita, 2023, the provisions of the BNSS, 2023

    would apply to the proceedings under the PMLA Act, 2002

    and in particular Section 223 of BNSS, 2023 in the present

    context. Section 46 of the PMLA Act, 2002 is extracted

    hereunder for ready reference:-

    “46. Application of the Code of Criminal

    Procedure, 1973 to proceedings before Special

    Court.- (1) Save as otherwise provided in this Act, the

    provisions of the Code of Criminal Procedure, 1973 (2 of

    1974) (including the provisions as to bails or bonds),

    shall apply to the proceedings before a Special Court

    and for the purposes of the said provisions, the Special

    Court shall be deemed to be a Court of Session and the

    persons conducting the prosecution before the Special

    Court, shall be deemed to be a Public Prosecutor:

    Provided that the Central Government may also

    appoint for any case or class or group of cases a Special

    Public Prosecutor.

    (2) A person shall not be qualified to be appointed

    as a Public Prosecutor or a Special Public Prosecutor

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    under this section unless he has been in practice as an

    advocate for not less than seven years, under the Union

    or a State, requiring special knowledge of law.

    (3) Every person appointed as a Public Prosecutor

    or a Special Public Prosecutor under this section shall be

    deemed to be a Public Prosecutor within the meaning of

    clause (u) of section 2 of the Code of Criminal Procedure,

    1973 (2 of 1974) and the provisions of that Code shall

    have effect accordingly.”

    Section 223 of the BNSS, 2023 is extracted

    hereunder for ready reference:-

    “223. Examination of complainant.- (1) A Magistrate

    having jurisdiction while taking cognizance of an offence

    on complaint shall examine upon oath the complainant

    and the witnesses present, if any, and the substance of

    such examination shall be reduced to writing and shall

    be signed by the complainant and the witnesses, and

    also by the Magistrate:

    Provided that no cognizance of an offence under

    this section shall be taken by the Magistrate without

    giving the accused an opportunity of being heard:

    Provided further that, when the complaint is made

    in writing, the Magistrate need not examine the

    complainant and the witnesses–

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    (a) if a public servant acting or purporting to act in

    the discharge of his official duties or a Court has

    made the complaint; or

    (b) if the Magistrate makes over the case for

    inquiry or trial to another Magistrate under

    section 212:

    Provided also that if the Magistrate makes over

    the case to another Magistrate under section 212 after

    examining the complainant and the witnesses, the latter

    Magistrate need not re-examine them:

    (2) A Magistrate shall not take cognizance on a

    complaint against a public servant for any offence

    alleged to have been committed in course of the

    discharge of his official functions or duties unless –

    (a) such public servant is given an opportunity to

    make assertions as to the situation that led to the

    incident so alleged; and

    (b) a report containing facts and circumstances of

    the incident from the officer superior to such

    public servant is received.”

    7. Learned counsel for the applicants, though, could

    not dispute the position of law regarding the provisions of

    Section 46 of PMLA Act and Section 223 of the BNSS, 2023,

    he, however, would submit that the summons/notices dated

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    18.07.2025, annexed as Annexure No.10 is defective in as

    much as they refer to Section 61 of the Cr.P.C.

    He would further submit that it would suffice if the

    present proceedings are closed with the observation that, in

    future, pre-cognizance notices shall specifically mention that

    they are being issued as pre-cognizance notices.

    8. In such view of the matter, since, by virtue of the

    notices dated 18.07.2025, the applicants have been called

    upon to appear before the Special Court to avail an

    opportunity of hearing on the point of cognizance, nothing

    survives for consideration in the present case. Accordingly,

    the present Criminal Miscellaneous Application deserves to be

    dismissed.

    9. The present Criminal Misc. Application under

    Section 528 of BNSS, 2023 is, thus, dismissed with the

    aforesaid observations.

    (Siddhartha Sah, J.)
    08.07.2026
    Akash

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