9 July 2025 Legal Updates

ED CAN LODGE CASES UNDER PMLA WHILE RELYING ON PREDICATE OFFENCES UNDER BNS, AS IT REPLACED IPC: BOMBAY HIGH COURT

(a) Case Title:

• Nagani Akram Mohammad Shafi v. The Union of India & The State of Maharashtra 

(b) Court:

• High Court of Judicature at Bombay (Criminal Appellate Jurisdiction) 

(c) Date of Decision:

• July 8, 2025 

(d) Bench:

• Justice Amit Borkar 

Key Issue:

Whether offences under the newly enacted Bharatiya Nyaya Sanhita, 2023 (BNS)—which replaced the Indian Penal Code, 1860 (IPC)—can be treated as "scheduled offences" under the Prevention of Money Laundering Act, 2002 (PMLA), despite the PMLA's Schedule still listing IPC sections ?

Arguments:

1. Applicant's Contention: 

The PMLA’s Schedule specifically lists IPC offences as "scheduled offences." Since the IPC is repealed and replaced by the BNS, and the PMLA has not been amended to include BNS offences, the Enforcement Directorate (ED) cannot prosecute money laundering cases based on BNS offences.  The appellant also relied on the doctrine of "legislation by incorporation", arguing that the PMLA "froze" IPC offences as they stood at enactment, and subsequent changes (like repeal) do not automatically update the Schedule. 

2. Respondent's (ED) Contention: 

The references to IPC in the PMLA are "legislation by reference", meaning they dynamically update to corresponding provisions in the BNS under Section 8(1) of the General Clauses Act, 1897. 

The BNS is a re-enactment of the IPC with the same substantive offences (e.g., cheating, forgery), albeit under new section numbers. Absent a "different intention" in the PMLA, the Schedule must be read harmoniously with the BNS to avoid absurdity (e.g., rendering PMLA ineffective post-IPC repeal). 

Court's Decision:

1. Interpretation of PMLA Schedule: 

• The Schedule uses "legislation by reference" (not incorporation), as it cites IPC sections without reproducing their text. Thus, references are dynamic and automatically update to corresponding BNS provisions under Section 8(1) of the General Clauses Act. 
• Example: IPC Section 420 (cheating) is now BNS Section 318(4); the PMLA Schedule’s reference to Section 420 will now mean Section 318(4) of BNS. 

2. Purpose Over Form: 

• The PMLA targets "proceeds of crime" linked to serious offences. Parliament’s intent was to cover categories of crimes (e.g., fraud, murder), not to bind the PMLA to specific IPC section numbers. 

3. Executive Notification (16th July 2024): 

• The Court held that the government’s notification substituting IPC references with BNS in existing laws lacks legal force, as it was not issued under valid statutory authority or authenticated per Article 77 of the Constitution. 

Decision: 

Bail Application Rejected. The ED’s PMLA case against the applicant (based on BNS offences) was upheld as valid. 

COURTS NEED NOT ORDER DNA TEST OF CHILD TO DETERMINE PATERNITY EVEN IF MOTHER AGREES, MUST ACT AS CUSTODIANS OF CHILD'S RIGHTS: BOMBAY HC

(a) Case Title:

• Aparna Ajinkya Firodia vs. Ajinkya Arun Firodia (cited in the judgment) 

(b) Court:

• High Court of Judicature at Bombay, Nagpur Bench 

(c) Date of Decision:

• 1st July, 2025 

(d) Bench:

• Justice R.M. Joshi 

Background:

The petitioner (wife) challenged a Family Court order directing a DNA test to determine the legitimacy of her child born during the marriage. The respondent (husband) sought the DNA test alleging adultery but did not explicitly deny paternity or prove "non-access" to the wife during conception. 

Key Legal Issues:

1. Presumption of Legitimacy (Section 112, Indian Evidence Act): 

• A child born during a valid marriage is conclusively presumed legitimate unless the husband proves "non-access" during conception. "Access" means the possibility of sexual relationship, not actual cohabitation. 

2. DNA Test as Evidence: 

• Scientific tests like DNA cannot override Section 112 unless "non-access" is conclusively proven. Courts must balance the interests of the child and avoid unnecessary tests that could harm the child’s dignity. 

3. Burden of Proof: 

• The husband must provide strong, unambiguous evidence of "non-access" to rebut the presumption of legitimacy. Mere allegations of adultery are insufficient to mandate a DNA test. 

Court’s Findings:

The husband failed to deny paternity explicitly in any legal proceeding, he failed to prove "non-access" during the conception period.  He also failed to show the DNA test was "eminently needed" to resolve the dispute. The wife’s statement (during cross-examination) agreeing to abide by the court’s order was misconstrued as consent by the Family Court. 

Decision:

The High Court set aside the Family Court’s order, ruling that: 

• The conclusive presumption of legitimacy under Section 112 applies. 
• DNA tests cannot be ordered mechanically; the child’s welfare is paramount.