TaxTMI 
TaxTMI 
2026 (5) TMI 1837
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....ared illegal. It is further submitted that the Order of Cognizance dated 18.12.2024 and the subsequent Remand Orders passed post cognizance, under S. 346 BNSS be declared as illegal and violative of Article 14, 21 and 22(1) Constitution of India. 2. The brief facts as stated in the Petition, are that the Central Government on receiving reliable information in respect of transnational conspiracy hatched by Myanmar based leadership of terror outfits who are operationally active in North-Eastern Indian States, to exploit the current ethnic unrest in the State of Manipur, to wage war against the Government of India and to execute terrorist attacks thereby exacerbating the current security situation in the State of Manipur, the MHA in exercise of its powers conferred under sub-Section 5 of Section 6 read with Section 8 of National Investigation Agency Act, 2008, directed NIA to take the investigations, vide Order dated 19.07.2023. 3. In compliance thereof, NIA registered FIR No. RC/23/2023/NIA/DLI under Section 120B, 121A & 122 IPC read with Section 18, 18B and 39 of the UAPA, 1967. The NIA claimed that acting on credible information received from the reliable source, the NIA was ....
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....en days. This illegality, however, was overlooked by the learned JMFC, who granted remand of one day to Judicial Custody. It was further directed that the Application be put up, before the concerned Court on 18.10.2024. 13. The Petitioner was presented before the Special Court on18.10.2024, on the allegations of being involved in the offence of money laundering, as defined under Section 3 PMLA. Eight days custody of the Petitioner, was granted to the Respondent. Thereafter, the Petitioner was produced before learned Link Judge on 26.10.2024 and was remanded to 14 days Judicial Custody. 14. The Order of first Remand dated 17.10.2024, has been challenged on the ground that it is violative of Section 302 and 187 BNSS, 2023. The Petitioner was arrested on 16.10.2024 at Rohini Jail at 12:55 PM, while he was in the Judicial Custody, in the RC case. It is settled law that a Police Officer can formally arrest a person in relation to an offence while he is already in custody in a different offence, as per Section 302 BNSS (Section 267 Cr.P.C.). The Respondent wanted the production of the Petitioner and also his custody for ten days. 15. He was thereafter, produced on 17.10.2024, wi....
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.... present case, it is clearly demonstrated that the Respondents did not comply with Section 187 BNSS, thereby violated the constitutional rights of the Petitioner. The Special Court also acted in a cavalier/ routine manner which breached the fundamental of Judicial Discipline and struck at the heart of the Constitution. 21. The second ground for challenge of Remand is that the Remand Application dated 17.10.2024 under Section 187 BNSS, demonstrates that the entire allegations and the acts were allegedly committed in the State of Manipur, which was also recorded by the learned Trial Court. Therefore, the proper approach would have been to file a transit remand before the nearest Magistrate, which has not been done in the present case. 22. Section 44(1)(a) of the PMLA, 2002 mandates that the offence of money laundering under Section 4 and related offences, must be tried by the Special Court constituted for the area, where money laundering is committed. Mere registration of ECIR at Delhi, based on the Supplementary Chargesheet filed by NIA in RC-23/2023/NIA/DLI, does not confer jurisdiction on the Delhi Courts. If the proceeds of crime have been handled elsewhere, then Special Co....
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....Line SC 533 and Tarsem Lal vs. Enforcement Directorate 2024 7 SCC 61. 29. The Order of Cognizance breaches the fundamental judicial discipline and strikes at the heart of the Constitutional structure, and has to be struck down. 30. The Petitioner has further challenged the Remand Orders post cognizance, on the ground that once a cognizance is shown to be bad in law, any subsequent Order of remand passed while exercising the power under Section 346 BNSS, also becomes non-est in law. This provision is a statutory safeguard to prevent prolonged incarceration, without proper judicial scrutiny. Section 346(2) BNSS expressly mandates that no Accused can be remanded to Judicial Custody, exceeding 15 days at a time. However, the Remand has been granted beyond the permissible statutory limit, rendering the Order ex-facie illegal and unsustainable in law. 31. The prayer is, therefore, made that the pre-cognizance Remand Orders commencing from 17.10.2024 and culminating on 05.12.2024 made under Section 187 BNSS, be declared as illegal. Further, the Order dated 03.12.2024 concluding that Delhi Court has jurisdiction, be declared non-est in law. Likewise, Order dated 18.12.2024 of taki....
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....8. A reference is also made to Padam Sen vs. State of U.P AIR 1961 SC 218 wherein the Apex Court, in the context of inherent powers under Section 151 CPC, it was observed that "it is well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code." 39. The Constitutional Bench in the case of Manohar Lal Chopra vs. Seth Hiralal AIR 1962 SC 527 held that the inherent power of the Court to make Orders ex debito justitiae is undoubtedly, affirmed by Section 151 of the Code, but it cannot be exercised so as to nullify the provisions of the Code. Where there exists a particular Section, then such provision should normally be regarded as exhaustive. 40. Moreover, under the pretext of challenging the cognizance and remand Orders, the Petitioner is seeking Bail, which is not permissible under Law. 41. Reliance is also placed on Sanyam Bhushan vs. State of NCT of Delhi 2024 DHC 4868, Sushilabai vs. The State of Maharashtra & Ors. Crl. Writ Petition No.1703 of 2018 decided by Bombay High Court on 28.09.2022, Neeraj Bhargava vs. State of NCT, Delhi Crl. M.C. No.3844/2015 decided on 28.0....
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....s formally arrested under Section 19 PMLA in ECIR on 16.10.2024 at 12:55 P.M. As per Section 19(3) PMLA after his arrest, he was produced before Special Judge, within 24 hours. The Respondent Office had sent email dated 16.10.2024 to the Superintendent of Jail to produce the Petitioner before the Duty Magistrate, Patiala House Court on 17.10.2024. 47. Accordingly, Application dated 17.10.2024 was moved before the Principal District & Sessions Judge, PMLA, PHC, New Delhi seeking production and ED custody of the Petitioner. The judicial custody was granted by learned Duty Magistrate vide Order dated 17.10.2024, for one day, with direction to place the Application before the Court concerned. 48. In regard to the territorial jurisdiction, it is submitted that the Special Judge vide detailed Order dated 03.12.2024, has come to the conclusion that the Delhi Court has jurisdiction. The same issue cannot be raised in this Petition, challenging the remand and the cognizance. 49. On merits, all the ground taken in the Writ Petition are denied. It is submitted that there is no merit in the present Petition which is liable to be dismissed. 50. The Rejoinder-Affidavit was filed on b....
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....ucts Ltd. v. State of Maharashtra (2009) 2 SCC 370. It was held that only because a revision petition is maintainable, the same by itself would not constitute a bar for entertaining an Application under Section 482 of the Code. Even where a Revision Application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908, the Apex Court has held that the remedies under Articles 226/227 of the Constitution of India would be available. (See Surya Dev Rai v. Ram Chander Raif.) Even in cases where a second revision before the High Court after dismissal of the first one by the Court of Session, is barred under Section 397(2)-of the Code, the inherent power of the Court has been held to be available. 56. In CBI v. Ravi Shankar Srivastava, 2006 (7) SCC 188, the Supreme Court while opining that the High Court in exercise of its jurisdiction under Section 482 of the Code does not function either as a court of appeal or revision, held: "7. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which ....
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.... complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 57. Likewise, in the recent judgement of Akanksha Arora v. Tanay Maben, 2024 INSC 962, while referring to the above discussed Judgements, the Supreme Court revisited this aspect and reiterated that the mere availability of a revisional remedy under Section 397 CrPC, cannot be a ground to dismiss a petition under Section 482 CrPC. The Court held that the nomenclature of a petition is immaterial and that the High Court, in the interest of substantive justice, ought to either entertain the Petition under its inherent jurisdiction or convert it into an appropriate proceeding, such as a revision. The dismissal of a Petition solely on the ground of availability of an alternative remedy, was characterised as hyper-technical and unsustainable, because the same has unnecessarily compelled the appellant to approach this court by way of this appeal filed under Article 136 of the Constitution of India, which approach cannot be appreciated. The judicious approach would have been to conver....
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....ly shows that due procedure as envisaged under Section 302 BNSS, had been duly complied with and the remand Orders subsequent to the arrest of the Petitioner, cannot be termed as illegal. 64. In the case of Pragyna Singh Thakur (supra), it was observed that even if it is assumed for the sake of arguments that there was any violation by the Police in not producing the Appellant within 24 hours of arrest, the Appellant cannot seek to be set at liberty, on the ground of non-compliance with Article 22(2) or Section 167(2) Cr.P.C. by the Police. 65. Therefore, this contention of the Petitioner, is without merit and does not enure to his benefit. III. Challenge to the Order of Cognizance dated 18.12.2024: 66. The next challenge raised by the Petitioner, is that the Order dated 18.12.2024 taking cognizance on the Complaint under Section 3 & 4 PMLA is bad in law, since the of Ld. Special Judge, PMLA declined to give Notice under Section 223 BNSS, before taking cognizance on the Prosecution Complaint under PMLA, by observing that PMLA takes precedence over the general statute and has a different process, which mandates that a pre-cognizance hearing to the Accused was not necessa....
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....e under PMLA. It now becomes relevant to refer to the Section 223 of BNSS, which provides for examination of the Complaint and the procedure for taking cognizance on the Complaints. The relevant part of Section 223 of BNSS, 2023 reads as follows: "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 shall be taken by the Magistrate without giving the accused an opportunity of being heard: .........." 75. A perusal of the impugned Order dated 18.12.2024, reveals that the Ld. Special Judge observed that Section 223 BNSS is not applicable to PMLA Complaints, on the premise that PMLA is a special Act and the Complainant therein, does not have the same capacity as a private complainant under BNSS. 76. This reasoning of the Ld. Special Judge is contrary to the law settled by the Supreme Court. The Supreme Court in t....
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....that as per Section 346 BNSS which deals with post-cognizance remand, the Petitioner could not have been remanded to Judicial Custody for more than 15 days at a time, while in this case each remand was more than two months. Such remand was bad in law, on this account. 83. The first proviso to Section 346(2) reads as under: "346.----- ... Provided that no Court shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: ..." 84. However, it may be noted that once the Order taking cognizance has been set aside, the remand order dated 01.05.2025 is not governed by the provision relating to post-cognizance remand; rather it is going to be governed by the provision relating to pre-cognizance remand. The relevant provision is thus, S. 187 BNSS (previously 167 Cr.P.C), which is extracted, as under: "187. Procedure when investigation cannot be completed in twenty-four hours. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 58, and there are grounds for believing that the....
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....atutory provision contained in Section 187 of BNSS, 2023. Such an order is ex-facie illegal and cannot be sustained. 86. Now, once the remand Order is set aside, there are two consequences that necessarily follow. 87. First and foremost, after the cognizance is taken, the Petitioner was necessarily required to be remanded to judicial custody, under Section 346 BNSS. When the Order of Cognizance is set aside, the post- cognizance remand under Section 346, cannot be held to be bad in law. 88. This was explained by the Supreme Court in the case of Suresh Kumar Bhikamchand Jain vs. State of Maharashtra (2013) 3 SCC 77 in the context of default being under Section 167(2)(a)(ii), that the powers for remand pre-cognizance was under Section 167 Cr.P.C., while post-cognizance it was under Section 309 Cr.P.C. It was held that if the cognizance is not taken and the person is remanded to custody beyond a period of 60 days, this power is deemed to have exercised under Section 167 Cr.P.C. 89. The Supreme Court in, Natabar Parida & ors. v. State of Orissa, (1975) 2 SCC 220 held that, once cognizance is taken or the trial commences, the power to remand the accused shifts from Section 1....
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.... U.P. vs. Sudhir Kumar Singh (2021) 19 SCC 706, it was observed that no prejudice is caused to a person complaining of the breach of natural justice, which such person does not dispute the case against him. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts, that no real prejudice has been caused to the person complaining of breach of natural justice. 97. The petitioner, herein has been transferred to Guwahati, vide Order dated 23.07.2025, wherein he is in judicial custody of the Guwahati Court. The Petitioner may have been remanded for extended period between January, 29 till he was shifted to Guwahati, beyond 15 days, as is permitted, but neither the Petitioner had raised any objection nor any prejudice has consequently, been caused to the Petitioner. There exists no ground to quash the Complaint. V. Whether petitioner is entitled to be released on Bail: 98. The Petitioner has contended that since his fundamental rights under Article 14, 21 and 22(1) have been violated, he be released on Bail. 99. In this context, reference be made to Union of India vs.....