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