Mohit Singla And Another Vs Direcotrate General of GST Intelligence And Others (Punjab And Haryana High Court)
SEO Title: Punjab and Haryana HC Sets Aside GST Pre-Charge Evidence Orders Without Summoning
Summary: The Punjab and Haryana High Court considered a petition under Section 528 of the BNSS filed by Mohit Singla and another, seeking quashing of orders passed by the Chief Judicial Magistrate, Ludhiana, in Criminal Complaint No. COMA-1181-2026 concerning an offence under Section 132(1)(c) of the Central Goods and Services Tax Act, 2017, punishable under clause (i) of Section 132(1), whereby the trial Court had proceeded to record pre-charge evidence.
The petitioners contended that no formal order summoning them as accused had been passed and that, without such an order, the trial Court could not proceed with pre-charge evidence. They further submitted that the procedure under Section 223 of the BNSS was required to be followed. Reliance was placed principally on Parvinder Singh v. Directorate of Enforcement, 2026 SCC OnLine 903, in which the Supreme Court held that the first proviso to Section 223(1) of the BNSS, requiring an accused to be given an opportunity of being heard before cognizance is taken, is mandatory and protects the accused’s right to a fair trial.
The petitioners also relied upon Kushal Kumar Agarwal v. Directorate of Enforcement, 2025 SCC OnLine SC 1221, and Radhika Agarwal Vs. Union of India, 2025 SCC OnLine SC 449. The respondent did not dispute the factual submission that no formal cognizance order had been passed and admitted that the procedure prescribed by the BNSS had not been followed, although serious allegations had been made against the petitioners. The High Court, after considering the submissions and record, found that no formal order had been passed by the trial Court for summoning the petitioners as accused and that the trial Court had wrongly proceeded to record pre-charge evidence without such an order.
Consequently, the Court set aside the impugned orders dated 13.02.2026, 21.04.2026 and 08.07.2026 passed by the Chief Judicial Magistrate, Ludhiana. The trial Court was directed to follow the mandate of Section 223 of the BNSS and the law laid down by the Supreme Court in the judgments relied upon. The parties were permitted to appear through counsel on the date already fixed, namely 12.10.2026. The petition was accordingly disposed of. :contentReference[oaicite:1]{index=1} :contentReference[oaicite:2]{index=2}
Cases Discussed
- Parvinder Singh v. Directorate of Enforcement, 2026 SCC OnLine 903.
- Kushal Kumar Agarwal v. Directorate of Enforcement, 2025 SCC OnLine SC 1221.
- Radhika Agarwal Vs. Union of India, 2025 SCC OnLine SC 449.
FULL TEXT OF THE JUDGMENT/ORDER OF PUNJAB AND HARYANA HIGH COURT
1. The petitioners have filed the present petition under Section 528 of the BNSS, with a prayer to quash and set aside the orders dated 16.01.2026 (Annexure P-3), 30.01.2026 (Annexure P-4), 13.02.2026 (Annexure P-5), 21.04.2026 (Annexure P-6) and 08.07.2026 (Annexure P-7) passed by the Court of Chief Judicial Magistrate, Ludhiana, District Ludhiana, in Criminal Complaint No. COMA-1181-2026 dated 03.01.2026, under Section 132(1)(c) of the Central Goods and Services Tax Act, 2017, punishable under clause (i) of Section 132(1) thereof, filed by respondent, whereby, the trial Court has proceeded to record the pre-charge evidence.
2. Learned senior counsel appearing for the petitioners has vehemently argued that in the present case no formal order of summoning has been passed by the trial Court, and without passing a summoning order, trial Court could not have proceeded to record the pre-charge evidence in the complaint case. He further submits that even before passing a summoning order, the trial Court was obliged to follow the procedure prescribed under Section 223 of BNSS. Learned counsel for the petitioners has also relied upon the law laid down by the Hon’ble Supreme Court in Parvinder Singh v. Directorate of Enforcement 2026, SCC Online 903, wherein the Hon’ble Supreme Court has held as follows:-
“26. Section 223 of the BNSS deals with the examination of a complainant. The first proviso to Section 223(1) of the BNSS prohibits the Magistrate from taking cognizance of an offence, unless the accused is given an opportunity of being heard.
27. Though Chapter XVI of the BNSS lays down the procedural law dealing with complaints made to a Magistrate, we hold that the aforesaid proviso is substantive in nature, as it does not merely regulate the manner in which the proceedings are to be conducted, rather it confers a right upon the accused to be heard before taking cognizance which forms a part of the right of an accused to a fair trial enshrined under Article 21 of the Constitution of India, 1950. We further hold that the word “shall” occurring in the said proviso has to be construed to be mandatory in nature, which enures to the benefit of an accused. Resultantly, cognizance of an offence taken by a Court without due compliance of the aforestated proviso would be void ab initio.
34.A mere ministerial act cannot be termed as an “inquiry” under Section 2(1)(k) of the BNSS. Taking cognizance is nothing but an application of judicial mind. So long as the application of the judicial mind is not exercised, an inquiry cannot commence. It is the judicial notice of an offence by the Court which is relevant. While doing so, it is presumed that the Court would take note of the complaint along with the materials placed before it.
36. As rightly held by this Court in Hardeep Singh (supra), even the stage of ensuring compliance with Sections 207 to 209 of the CrPC, 1973 cannot be termed as an inquiry because there is no application of judicial mind. In the facts of the instant case, the direction issued by the Special Court, vide order dated 24.06.2024, to number the complaint and, thereafter, post the matter on a future date for hearing on cognizance would certainly not come within the purview of an “inquiry” under Section 2(1)(k) of the BNSS. In such view of the matter, the aforestated contention raised by the learned ASG falls to the ground.
37.As already discussed, though the complaint under the PMLA was filed earlier, the cognizance was only taken subsequently, on 02.07.2024, by which time the BNSS had come into force. Admittedly, the appellant has not been heard at the time of taking cognizance. The mandate of a legislation which ensures the right of an accused to a fair trial, whose liberty is at stake, cannot be dispensed with. Thus, the contention of the learned ASG that prejudice caused due to non-hearing at the stage of cognizance will have to be shown by the accused cannot be accepted, as it is not a mere irregularity that would attract either Section 506 or 511 of the BNSS, but is an illegality that would vitiate the very proceedings.
38. Based on the above discussion, the views expressed by the High Court are, therefore, liable to be set aside. We do find that the allegations against the appellant are quite serious. However, non-compliance with the first proviso to Section 223(1) of the BNSS vitiates the very order taking cognizance, and the same cannot be sustained in the eyes of the law. In fact, the appellant had, at the earliest point in time, filed the application for recall of the order taking cognizance by placing reliance upon the said proviso. Had the Special Court allowed it, the trial would have proceeded further. Suffice it to state that the appellant cannot be faulted for any delay that has occasioned..”
3. Learned senior counsel has also relied upon the law laid down by the Hon’ble Supreme Court in the matter of Kushal Kumar Agarwal v. Directorate of Enforcement, 2025 SCC OnLine SC 1221, decided on 09.05.2025 and Radhika Agarwal Vs. Union of India, 2025 SCC Online SC 449.
4. On the other hand, learned counsel appearing on behalf of respondent No. 1 does not dispute the factual submissions made by learned counsel for the petitioners and submits that no formal cognizance order has been passed by the trial Court in the present case. Learned counsel further submits that in the present case serious allegations have been leveled against both the petitioners. However, he admits that the procedure prescribed by BNSS has not been followed by the trial Court.
5. I have heard learned counsel for the parties and perused the record very carefully.
6. In view of the submissions made by learned counsel for the parties, it is apparent that in the present case no formal order has been passed by the trial Court for summoning the petitioners as an accused, and without passing such order, the trial Court has wrongly proceeded to record the pre-charge evidence in the present case. Consequently, the impugned orders dated 13.02.2026, Annexure P5, 21 April 2026, Annexure P6, and 8th July 2026, Annexure P7, passed by the Court of Chief Judicial Magistrate, Ludhiana, are ordered to be set aside.
7. The trial Court is expected to follow the mandate of the law as mentioned under Section 223 of BNSS and the law laid down by the Hon’ble Supreme Court in above judgments. The parties through their counsel may appear before the trial Court on the date already fixed, i.e. 12th October 2026.
8. The petition stands disposed of in above terms.
