Uttarakhand High Court
Banmeet Singh vs Directorate Of Enforcement (Ed) on 31 July, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (CRL) No. 567 of 2024
Banmeet Singh. ..................... Petitioner.
Versus
Directorate of Enforcement (ED). ...............Respondents.
With
Writ Petition (CRL) No. 585 of 2024
Amarpreet Kaur Chawla. ..................... Petitioner.
Versus
Directorate of Enforcement (ED). ...............Respondents.
Present:
Mr. Aditya Singh, Mr. Mahendra Singh Rawat and Mr. Abhimanshu Dhyani, learned
counsel for the petitioner.
Mr. Zoheb Hossain, Mr. Atul Bahuguna and Mr. Lalit Sharma, learned counsel for the ED.
Hon'ble Mr. Justice Rakesh Thapliyal, J.
1. Mr. Zoheb Hossain, learned counsel for the Enforcement
Directorate advanced his arguments in respect of the order passed
by the learned Magistrate dated 27.07.2024 wherein, the
cognizance was taken on the supplementary complaint filed in
relation to the ECIR/DNSZO/04/2023 dated 24.07.2023 and
submits that in fact the original complaint in relation to this ECIR
was filed on 24.06.2024, wherein, the cognizance was taken on
02.07.2024. Subsequent thereto the supplementary prosecution
complaint was filed against Banmeet Singh on 26.07.2024,
wherein, learned Magistrate took cognizance on 27.07.2024. He
submits that w.e.f. 01.07.2024 the Bhartiya Nagrik Suraksha
Sanhita, 2023 (in short BNSS, 2023) came into force and, therefore,
in respect of the supplementary complaint, which pertains to the
ECIR/DNSZO/04/2023 is nothing but deemed to part of the
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original complaint dated 24.06.2024, therefore, since the
subsequent complaint is nothing but a supplement to the original
complaint, therefore, Section 223 of BNSS, 2023 will not attract
and there is no need to give the accused an opportunity of being
heard before taking cognizance. In support of his submission, he
further bring to notice of this Court Section 531 of BNSS, 2023,
which reads as under:
“531. Repeal and savings.
(1)The Code of Criminal Procedure, 1973 is hereby repealed.
(2)Notwithstanding such repeal-(a) if, immediately before the
date on which this Sanhita comes into force, there is any appeal,
application, trial, inquiry or investigation pending, then, such
appeal, application, trial, inquiry or investigation shall be
disposed of, continued, held or made, as the case may be, in
accordance with the provisions of the Code of Criminal
Procedure, 1973, as in force immediately before such
commencement (hereinafter referred to as the said Code), as if
this Sanhita had not come into force;(b) all notifications
published, proclamations issued, powers conferred, forms
provided by rules, local jurisdictions defined, sentences passed
and orders, rules and appointments, not being appointments as
Special Magistrates, made under the said Code and which are in
force immediately before the commencement of this Sanhita,
shall be deemed, respectively, to have been published, issued,
conferred, specified, defined, passed or made under the
corresponding provisions of this Sanhita;(c) any sanction
accorded or consent given under the said Code in pursuance of
which no proceeding was commenced under that Code, shall be
deemed to have been accorded or given under the
corresponding provisions of this Sanhita and proceedings may
be commenced under this Sanhita in pursuance of such sanction
or consent.
(3)Where the period specified for an application or other
proceeding under the said Code had expired on or before the
commencement of this Sanhita, nothing in this Sanhita shall be
construed as enabling any such application to be made or
proceeding to be commenced under this Sanhita by reason only
of the fact that a longer period therefor is specified by this
Sanhita or provisions are made in this Sanhita for the extension
of time.”
2. By referring sub-clause (a) of sub-section (2) of Section 531
Mr. Zoheb Hossain submits that since the subsequent complaint is
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nothing but supplement to the original complaint dated
24.06.2024, therefore, in view of the repeal and saving clause in
terms of Section 531 Section 223 of BNSS, 2023 is not at all
applicable. In support of his submission, he submits that the
original complaint was filed on 24.06.2024, the date which is prior
to the date of enforcement of Act No. 46 of 2023 i.e. 01.07.2024,
therefore, in respect of the subsequent complaint, which is
nothing but the supplementary complaint to the original
complaint there is no need to give an opportunity of being heard
to the accused Banmeet, since the cognizance is always taken once
that too in respect of the offence and not in respect of the offender.
3. In support of his submission, he placed reliance in one of the
judgment of the Delhi High Court in the case of Yogesh Mittal vs.
Enforcement Directorate 2018 SCC Online Del 6565 decided on
16.01.2018 and in this judgment he particularly placed reliance of
paragraph 23, 24 and 25, which reads as under:
“23. Issue No.(ii): Whether cognizance is required to be taken
again on filing of a supplementary complaint?
24. In the decision reported as 2015 (7) SCC 440 Prasad
Shrikant Purohit vs. State of Maharashtra & Anr. Supreme Court
dealing with the issue of cognizance on a supplementary charge
sheet held:
“71. Reliance was then placed upon the decision in Fakhruddin
Ahmad [(2008) 17 SCC 157: (2010) 4 SCC (Cri) 478], in particular
para 17. The said para 17 reads as under: (SCC p. 163) “17.
Nevertheless, it is well settled that before a Magistrate can be
said to have taken cognizance of an offence, it is imperative that
he must have taken notice of the accusations and *applied his
mind* to the allegations made in the complaint or in the police
report or the information received from a source other than a
police report, as the case may be, and the material filed
therewith. It needs little emphasis that it is only when the
Magistrate *applies his mind* and is satisfied that the
allegations, if proved, would constitute an offence and decides
to initiate proceedings against the alleged offender, that it can be
positively stated that he has taken cognizance of the offence.
Cognizance is in regard to the offence and not the offender.”
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(emphasis supplied) Even here this Court has stated in
uncontroverted terms that once the Magistrate applies his mind
to the offence alleged and decides to initiate proceedings against
the alleged offender, it can be stated that he has taken
cognizance of the offence and by way of reiteration, it is further
stated that cognizance is in regard to the offence and not the
offender.
This decision, therefore, reinforces the position that cognizance
is mainly of the offence and not the offender.
25. It is thus trite law that cognizance is taken of the offence
and not the offender. It is also well settled that cognizance of an
offence/offences once taken cannot be taken again for the
second time. Since this Court has already taken a view that a
supplementary complaint on additional evidence qua the same
accused or additional accused who are part of same larger
transactions/conspiracy is maintainable however, with the leave
of the Court and cognizance is taken of the offence/offences, not
the offender and in case no new offence is made out from the
additional material collected during further investigation,
supporting an earlier offence on which cognizance has already
been taken or additional accused are arrayed no further
cognizance is required to be taken.”
4. By placing reliance on the aforesaid judgment Mr. Hossain
submits that in respect of the offence arising out of
ECIR/DNSZO/04/2023 the complaint was already filed prior to
01.07.2024 in subsequent complaint, which is supplement to the
original complaint one more additional accused is implicated
though as a matter of fact cognizance to the offences has already
been taken on the original complaint.
5. He submits that this is not a case in which the original
complaint was filed after 01.07.2024 and this is a case in which the
subsequent complaint was filed after 01.07.2024 and the original
complaint was filed prior to 01.07.2024 and on this submission he
also placed reliance in one of the judgment of the Hon’ble Apex
Court in the case of Kushal Kumar Agarwal vs. Enforcement
Directorate 2025 SCC Online SC 1221 and particularly he placed
reliance in paragraph 5 in which the relevant date for filing the
complaint was 01.07.2024 and that is the reason the Hon’ble Apex
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Court was of the view that since the complaint was filed after
01.07.2024 Section 223 of BNSS will apply. Paragraph 5 of the
judgment is quoted herein as under:
“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/s Union of India and others1 and Tarsem Lal v/s
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. Apart from this, he also placed reliance in one of the
judgment rendered by the Coordinate Bench of this court passed
in Criminal Revision No. 218 of 2025 ‘Parvinder Singh vs.
Directorate of Enforcement (ED), who is the another accused in
the present case against whom the original complaint was filed on
24.06.2024.
7. The challenge was that though the original complaint was
filed on 24.06.2024 but the cognizance was taken by the Special
Judge, PMLA on 02.07.2024, therefore, proviso to Section 223 will
attract but such an argument was turned down by the Coordinate
Bench by referring Section 223 r/w Section 531 of BNS, 2023.
8. In response to this, learned counsel for the petitioner Mr.
Aditya Singh advance his argument by submitting that the
supplementary prosecution complaint according to Mr. Zoheb
Hossain is in fact is not the supplementary complaint rather it is a
fresh complaint which is evident from the relief as sought therein.
9. Apart from this, he submits that in respect of the
supplementary prosecution complaint the learned Special Judge,
PMLA took cognizance on 27.07.2024 from which it clearly reveals
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that it is a fresh cognizance by treating this supplementary
complaint as a fresh complaint.
10. He further submits that the so called supplementary
prosecution complaint is infact is a fresh complaint since there is
no reference of the complaint of Parvinder, therefore, this
supplementary prosecution complaint, according to the ED, is in
fact is a fresh complaint, which itself is evident from the order
passed by the Special Judge, dated 27.07.2024. He also submits
that even the Trial Court also treating this supplementary
prosecution complaint as a fresh complaint and that is the reason
that the complaint in respect of Parvinder and the complaint in
respect of Banmeet are being tried separately by giving a separate
trial number. He also relied upon some of the judgments
particularly the judgment of Punjab and Haryana High Court
dated 29.07.2025 in the case of Sikander Singh vs. Directorate of
Enforcement, Gurugram. By referring this judgment, he submits
that in this particular case, which has been dealt by Punjab and
Haryana High Court the date of complaint was 27.06.2024 and by
giving reference of Section 531 and 202 of Cr.P.C. the court was of
the view that though the complaint was filed prior to 01.07.2024
still Section 223 of BNS, 2023 will attract.
11. Put up this matter tomorrow (01.08.2025) for further
argument.
(Rakesh Thapliyal, J.)
31.07.2025
PR