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Judgment
Hon'Ble Subhash Vidyarthi, J.
Heard Sri Rituraj Mishra, learned counsel for the petitioner and Sri Kuldeep Srivastava, the learned counsel for the respondent no.1, assisted by Shri Lakshya Tiwari, the learned counsel for the respondent no.1-Directorate of Enforcement.
By means of the instant petition filed under Section 528 Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), the petitioner has challenged the validity of an order dated 26.04.2025 passed by the learned Special Judge, Prevention of Corruption, CBI West/ED Lucknow in Criminal Miscellaneous Case No. 695 of 2025, arising out of ECIR/LKZO/10/2020 under Sections 3 and 4, Prevention of Money Laundering Act, 2002 (hereinafter referred to as ‘the PMLA’), whereby the Special Judge has taken cognizance of the offences, directed compliance of provisions of Section 207 and 208 Cr.P.C. and issued summons to the accused persons.
Sri Rituraj Mishra, the learned counsel for the petitioner has submitted that the aforesaid order has been passed without giving an opportunity of hearing to the petitioner/accused, whereas the proviso appended to Section 223(1) BNSS mandates that no cognizance of an offence shall be taken without giving an opportunity of hearing to the accused person. The learned counsel for the petitioner has placed reliance on a judgment of the Hon’ble Supreme Court in the case of Parvinder Singh versus Directorate of Enforcement: 2026 SCC OnLine SC 903 and Kushal Kumar Agarwal versus Directorate of Enforcement: 2025 SCC OnLine SC 1221.
Per contra, Sri Kuldeep Srivastava, the learned counsel for the respondent no.1-Directorate of Enforcement has submitted that after passing of the impugned order, whereby the trial Court took cognizance of the offences, the petitioner appeared before the trial court, charges were framed in his presence and all the prosecution witnesses have been examined and they have been cross-examined by the petitioner. Statement of the applicant has already been recorded under Section 351 BNSS (Section 313 CrPC). On 20.07.2026, the trial was fixed for hearing final submissions. He has submitted that when the petitioner did not challenge the cognizance order with reasonable promptitude and he rather continued to participate in the proceedings of trial, he has cross-examined the prosecution witnesses and has got his statement recorded under Section 313 CrPC, the petitioner cannot challenge the cognizance order at this belated stage on the ground that he was not granted an opportunity of hearing, as at this stage it cannot be said that the cognizance order is causing any prejudice to the petitioner.
In Kushal Kumar Agarwal v. Enforcement Directorate: 2025 SCC OnLine SC 1221, the Hon’ble Supreme Court referred to and followed the ratio laid down in the cases of Yash Tuteja v. Union of India: 2024 SCC OnLine SC 533 and Tarsem Lal v. Enforcement Directorate: (2024) 7 SCC 61 and concluded that: -
“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. Union of India and Tarsem Lal v. Enforcement Directorate. 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.The proviso to sub-section (1) of Section 223 puts an embargo on the power of the Court to take cognizance by providing that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.
7.In this case, admittedly, an opportunity of being heard was not given by the learned Special Judge to the appellant before taking cognizance of the offence on the complaint. Only on that ground, the impugned order dated 20th April, 2024, will have to be set aside.”
In Parvinder Singh v. Enforcement Directorate: 2026 SCC OnLine SC 903, the Hon’ble Supreme Court followed the decisions in Yash Tuteja v. Union of India, Tarsem Lal v. Enforcement Directorate (supra) and Kushal Kumar Agarwal v. Enforcement Directorate (supra) and held that: -
“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. 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.”
However, in Parvinder Singh v. Enforcement Directorate (supra), the Hon’ble Supreme Court has taken into consideration the fact that:-
“38.… In fact, the appellant has, 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 (sic. Not) proceeded further. Suffice it to state that the appellant cannot be faulted for any delay that has occasioned.”
In the present case, the petitioner did not object against being deprived of an opportunity of hearing before the trial Court took cognizance of the offence although the petitioner appeared before the trial court, charges were framed in his presence and all the prosecution witnesses have been examined and they have been cross-examined by the petitioner. Statement of the applicant has already been recorded under Section 351 BNSS (Section 313 CrPC). On 20.07.2026, the trial was fixed for hearing final submissions. Therefore, the petitioner has waived the challenge against the trial Court having taken cognizance of the offence without giving an opportunity of hearing to him and he has participated in the trial and has availed the opportunity of hearing available at the subsequent stages, namely framing of charges, hearing deposition of prosecution witnesses and cross examining them and recording his statement under Section 313 Cr.P.C. Now, that the trial is fixed for hearing final submissions, the petitioner has raised a challenge against the cognizance order. Therefore, the factual background of the present case are different from the factual background in light of which the case of Parvinder Singh (supra) was decided.
In para 14 of the petition, the petitioner has pleaded that: -
“That it is significant to mention here that the applicant engaged subsequent counsel replacing to his earlier counsel that’s why the initial order of cognizance could not be seen by his counsel and cognizance was already taken upon the compliant and the matter was proceeded for trial that’s why he could not peruse the order of cognizance dated 26.04.2025 passed by learned trial court and when the applicant counsel started to prepare for the final argument in the case and seen the records of the learned court below pertaining to the present complaint case then he came to know that serious and gross illegality occurred by learned trial court while taking cognizance upon the complaint against the petitioner by which serious prejudice has been cause to the petitioner then the petitioner desired to file the present petition challenging the serious illegality passed in taking cognizance by learned trial court causing serious prejudice to him on the advice of his counsel that’s why the present petition u/s 528 BNSS is being preferred after some delay in its filing. The delay in filing the present petition in challenging the order of cognizance much before this hon’ble court by the petitioner occurred because of the circumstances beyond his control.”
In K.L. Tripathi v. SBI: (1984) 1 SCC 43, the Hon’ble Supreme Court held that: -
“31.It is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth. Since then, this Court has consistently applied the principle of prejudice in several cases …”
The aforesaid principle has been quoted with approval and followed in Aligarh Muslim University v. Mansoor Ali Khan:(2000) 7 SCC 529 and in State of U.P. v. Sudhir Kumar Singh: (2021) 19 SCC 706.
In Rakesh Kumar Gulati versus Directorate of Enforcement: 2025:DHC:11894, the Delhi High Court has dealt with Kushal Kumar Agarwal v. Directorate of Enforcement (supra) which was relied upon by the petitioner to argue that in case of non-compliance of the proviso to the sub-section (1) of Section 223 of the BNSS, the cognizance order should be set aside. The said argument was rejected by the Delhi High Court in the following words: -
“24.Reliance has also been placed by the petitioner on the case of Kushal Kumar Agarwal v. Directorate of Enforcement (supra) to argue that in case of non-compliance of the proviso to the Sub-Section (1) of Section 223 of the BNSS, the cognizance order should be set aside. It is not in doubt that Section 223 of the BNSS mandates that the accused ought to be heard, however, the said case is not applicable to the facts of the present case. As noted above, the petitioner was present at the time when the impugned order was being passed and has not pointed out how and in what manner was he denied of his right of being heard. Furthermore, even thereafter at the time of consideration of his bail application, the learned Trial Court extensively heard the petitioner on merits and also considered the complaint as well as the other material on record while dismissing his bail application. The present case thus is not one where it can be said that the petitioner was not heard.
25.Further, as also rightly pointed out by the respondent department, the petitioner has failed to carve out any prejudice caused to him. Evidently, the petitioner has sought pre-cognizance hearing almost 10 months after the impugned order was passed that too when the petitioner was proactively participating in the proceedings before the learned Trial Court through his counsel despite which the petitioner has failed to show how, if any, prejudice was caused to him. It has merely been asseverated that the denial of pre-cognizance hearing resulted in grave prejudice to the petitioner.
The Delhi High Court relied upon the judgments in the cases of State of U.P. v. Sudhir Kumar Singh (supra) and Aligarh Muslim University v. Mansoor Ali Khan (supra) and held that: -
27.As noted above but for the averment of the petitioner that prejudice has been caused, nothing has been pleaded or asserted to corroborate the same. Further, highlighting prejudice in the present case assumes heightened significance considering the delay in agitating the denial of pre-cognizance hearing. At the cost of repetition, this Court deems it apposite to make a mention of the fact that the impugned order records the presence of petitioner (judicial custody from CJ-07 Tihar Jail through video conferencing mode) and his counsel on the date when the impugned order was passed. It is not the case of the petitioner that on the said date as well, he was denied an opportunity to raise his contentions. Thereafter as well, the petitioner has been duly represented by his counsel before the learned Trial Court yet no ground of denial of his right to be heard was pressed at any stage. The present petition too has been filed with a delay of 198 days without any sufficient cause. The petitioner was also heard on merits at the time when he preferred the bail application before the learned Trial Court on the aspect of prima facie satisfaction of guilt. Consequently, at this stage, in the dearth of any prejudice specifically shown, especially when the petition has been preferred belatedly and when the petitioner was duly represented by his counsel at all stages before the learned Trial Court, this Court does not find any reason to entertain the present petition.”
In the present case also, the petitioner has been participating in the proceedings of trial. Charges were framed in his presence, the prosecution has examined two witnesses, both were examined in presence of the petitioner, he has cross examined the prosecution witnesses and his statement under Section 313 Cr.P.C. has been recorded. The petitioner has not contended that any prejudice has been caused to the petitioner due to the reason that he was not provided an opportunity of hearing before taking cognizance of the offences. The only contention of the petitioner is that failure to provide an opportunity of hearing before taking cognizance of the offence itself has caused prejudice to him. The facts of the present case are similar to the facts of Rakesh Kumar Gulati (supra) and I find myself in perfect agreement with the view expressed by the Delhi High Court that when the petitioner has been participating in the proceedings of trial and he has been duly represented by his counsel, charges were framed in his presence, both the prosecution witnesses have been examined in presence of the petitioner, he has cross examined both the prosecution witnesses and his statement under Section 313 Cr.P.C. has been recorded and the petitioner did not press his right to be given an opportunity of hearing before taking cognizance of the offence and the challenge to the cognizance order dated 26.04.2025 has been made for the first time in this petition filed on 21.08.2026 after a delay of about 1 year and 4 months, when the trial is at the stage of hearing final submissions, the belated challenge to the cognizance order cannot be entertained in absence of any prejudice having been caused to him.
The learned counsel for the petitioner submitted that it was because of the fault committed by the petitioner's counsel that this plea was not raised earlier and when the petitioner changed his counsel, he noticed that pre-cognizance hearing was not provided to the petitioner, therefore, he advised to challenge the order of cognizance on this ground.
In response to this submission, Shri Kuldeep Srivastava, the learned counsel for the respondent no.1 has placed reliance on the decision of the Delhi High Court in the case of Rajesh Chetwal versus State: 2011 SCC OnLine Del 5768, specifically paragraph 16, wherein the Delhi High Court held that the change of counsel should not be a ground for entertaining a belated petition under Section 482 CrPC. If that is permitted to be done, then there will be a spate of cases filed by the parties on the plea that the counsel, who has filed the petition, has been engaged recently, as a consequence of which it will become difficult for the trial courts to conclude the trials.
In view of the foregoing discussion, I am of the view that as the petitioner did not object against being deprived of an opportunity of hearing before the trial Court took cognizance of the offence although the petitioner appeared before the trial court, charges were framed in his presence and both the prosecution witnesses in presence of the petitioner and they have been cross-examined on his behalf, his statement of under Section 351 BNSS (Section 313 CrPC) has already been recorded and after the trial was fixed for 20.07.2026 for hearing final submissions, this petition filed on 21.08.2026 challenging the validity of the cognizance order cannot be entertained because the petitioner has participated in the trial and has availed the opportunity of hearing available at the subsequent stages, namely framing of charges, hearing deposition of prosecution witnesses and cross examining them and recording his statement under Section 313 Cr.P.C., and no prejudice has been caused to him by the impugned order dated 26.04.2025 having been passed without giving an opportunity of hearing to the petitioner.
A mere change of Counsel is no ground to entertain a challenge to the cognizance order when the trial is at the stage of hearing final submissions.
This Court does not find any good ground to entertain the petition under Section 528 BNSS filed at this belated stage, challenging the validity of the cognizance order, when the trial has reached the stage of hearing of final submissions.
In view of the foregoing discussion, the petition is dismissed.