Uttarakhand High Court on Pre-Cognizance Notices in PMLA Proceedings

The Uttarakhand High Court in Birendra Singh Kandari & others Vs State of Uttarakhand & Another examined whether an assessee can invoke Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS, 2023) to assail pre-cognizance notices issued by a Special Court under the Prevention of Money Laundering Act, 2002 (PMLA Act). The Court ultimately held that such a challenge is premature where the notice only calls the accused for a hearing on cognizance and is not a formal summoning order.

This decision provides important procedural clarity on how Section 46 of the PMLA Act, 2002 operates in conjunction with the new BNSS, 2023, particularly Section 223, in PMLA prosecutions.

Background and Context

Origin of the Proceedings

The controversy arose from criminal proceedings registered as Criminal Misc. No. 396 of 2025 titled “Directorate of Enforcement vs. Birendra Singh Kandari & others”, which was based on ECIR No. ECIR/DNSZO/01/2024 dated 31.01.2024. The ECIR was lodged under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 at P.S. Enforcement Directorate, Dehradun.

The applicants (accused persons in the PMLA case) approached the Uttarakhand High Court by way of a criminal miscellaneous application under Section 528 of BNSS, 2023. They sought two key reliefs:

  1. Quashing of Criminal Misc. No. 396 of 2025 arising from the said ECIR; and
  2. Setting aside the alleged “summoning order” dated 18.07.2025 passed by the Special Judge, PMLA/District & Sessions Judge, Dehradun.

Nature of the Impugned Document

The pivot of the entire dispute was Annexure No. 10 to the application, which the applicants described as a summoning order. On a closer reading, however, the High Court found that Annexure No. 10 was not a separate judicial order of summoning, but a set of notices/summons issued on 18.07.2025 directing the applicants to appear before the Special Court.

These notices had been issued in pursuance of an earlier order dated 14.07.2025 passed by the Special Judge, which the Enforcement Directorate (respondent no. 2) produced as Annexure No. 9 to its counter affidavit.

Procedural History Before the Special Court

Order Dated 14.07.2025

The order of the Special Judge dated 14.07.2025 clearly indicated that:

  • The matter was at a pre-cognizance stage.
  • The Special Judge directed issuance of notices to the accused.
  • The purpose explicitly was to hear the accused on the “point of cognizance”.
  • The case was fixed for hearing on cognizance on 04.08.2025.

Thus, the Special Court had not yet taken cognizance of the alleged offences under Sections 3 and 4 of the PMLA Act. Instead, it was following a process designed to give the proposed accused an opportunity to be heard on whether cognizance should be taken at all.

Notices Dated 18.07.2025

In compliance with the order dated 14.07.2025, the court office issued the notices/summons dated 18.07.2025 to the applicants. These notices called upon them to appear before the Special Court on the designated date, so that they could participate in the hearing regarding cognizance.

The applicants, however, treated these notices as if they were final summoning orders post-cognizance, and on that basis, invoked the High Court’s jurisdiction under Section 528 of BNSS, 2023 to quash them along with the underlying criminal proceedings.

The Uttarakhand High Court framed and examined the following core issues:

  1. Maintainability of the challenge:
    Whether a criminal miscellaneous application under Section 528 of BNSS, 2023 is maintainable against pre-cognizance notices that merely call the accused for a hearing on the question of cognizance.

  2. Procedural framework under PMLA:
    How Section 46 of the PMLA Act, 2002 interacts with the provisions of BNSS, 2023, particularly Section 223, in proceedings before a Special Court.