Extending PMLA Safeguards to New Criminal Code: Calcutta HC Quashes Flawed Attachment Order Lacking 'Reason to Believe [Read Order]

The Calcutta High Court quashed a flawed attachment order passed by a Chief Judicial Magistrate for lacking 'reason to believe', in a landmark ruling extending PMLA safeguards to the new criminal code (the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)), noting that it illegally attached the properties of a woman who was not even named as an accused in the case.

The petitioner, Puja Hari, challenged the decision dated September 2025 passed by the CJM, Howrah, directing attachment of three properties jointly owned by her and her husband (accused Bikash Hari) and two properties solely owned by her. The attachment was initiated under Section 107 of the BNSS in connection with a FIR for cheating and criminal conspiracy in relation to ledger inconsistencies at a private corporation.

The petitioner said she came to know of the attachment only when a vacate notice was put on her premises. She said that she was never sent any prior notice and the Magistrate had wrongfully labelled her as “absconding accused” and denied her right to be heard even though she was not arraigned in the FIR.

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“The trial court completely bypassed the statutory mandate of Section 107(2) and (3) of BNSS which requires a four-step process, i.e. issuance of notice to the property owner, giving him a period of 14 days, providing reasonable opportunity of being heard and a logical conclusion that the property is “proceeds of crime”, observed Dr Justice Ajoy Kumar Mukherjee.

The Magistrate had mistakenly understood the consent of the SP as a “technical issue” and presumed that delivering notice on the husband was sufficient for the exclusive properties of the wife.

The High Court did not stop at procedural remand but used the case to lay out detailed rules to prevent exploitation of Section 107, extensively drawing parallels with the Prevention of Money Laundering Act (PMLA).

The Court observed that the phrases 'criminal activity' and 'proceeds of crime' are not narrowly defined in this chapter of the BNSS, the net is wide and open to abuse potentially making criminal prosecution an instrument of civil recovery.

To prevent this, the Court directed that BNSS procedures should import the stringent criteria of the PMLA. The Court, relying on the Supreme Court’s judgments in Arvind Kejriwal v. ED and Vijay Madanlal Choudhary v. Union of India, ruled that the level of “reason to believe” under Section 107 is far greater than the “reason to suspect” required to initiate an investigation.

The Court also found that the approval of the Superintendent of Police cannot be a mere Mechanical exercise but must be the result of adequate application of intellect.

The Court also sternly warned against the casual granting of ex-parte temporary orders of attachment under Section 107(5). Unlike the PMLA, which restricts the period of provisional attachment to 180 days, the BNSS does not prescribe any time limit, therefore exposing the property to the prospect of indefinite deprivation. The Court concluded that such ex-parte orders should be made only in rare situations and that physical possession of the attached items should not be hurried before a formal confiscation order is passed.

The Court set aside the order of attachment and permitted the investigating agency to start the procedure of attachment afresh strictly in accordance with the protections mentioned in the judgement within a period of four weeks.

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