2025 (12) TMI 1783 - HC - Money Laundering

Pre-cognizance hearing u/s223 BNSS and delayed challenge to cognizance order-198-day delay not condoned, petition dismissed

The HC considered whether a delayed challenge to an order taking cognizance could be entertained on the ground that the accused was denied a ... Money Laundering - deprival of right to be heard - cognizance was taken by the learned Trial Court without affording him the benefit of a pre-cognizance hearing in terms of Section 223 of the BNSS - violation of principles of natural justice - appeal not filed within time limitation - sufficient cause for delay or not - HELD THAT:- It is well settled that while dealing with an application for condonation of delay under the Limitation Act, 1963 or any other similar statute, a liberal and justice-oriented approach must be adopted by the Courts, when ‘sufficient cause’ had been shown by the applicant for not having filed the appeal within the period prescribed. However, in the present case, not only do the explanations rendered in the application not depict sufficient cause for condoning the delay but they also fail to inspire confidence and rather seem like an afterthought especially in the light of the fact that in the interregnum the petitioner was duly represented by a counsel before the learned Trial Court and the issue of not being afforded a pre-cognizance hearing was never agitated. In the opinion of this Court, subsequently receiving different legal advice cannot be a ground for condoning the delay. It is well settled that taking cognizance does not involve any formal action and the Magistrate is not even required to pass a speaking order at the stage of taking cognizance. This Court first deems it apposite to take note of the fact that on 25.09.2024, at the time when the impugned order was passed, it is manifestly evident from the record that the petitioner (produced from judicial custody from CJ-07 Tihar Jail on video conferencing) along with his counsel were present before the Court. Considering their presence at the time when the impugned order was being passed, it would only be safe to presume that the petitioner was heard by the learned Trial Court before the impugned order was passed. In that regard, it is firstly unclear to this Court as to how and in what manner is the petitioner asserting that he was denied of his right of being heard when the record clearly indicates his presence - in the absence of any material to indicate in what manner the petitioner was precluded from exercising his right despite his presence, and the subsequent inaction on the part of the petitioner to agitate the said issue before the learned Trial Court even though he was proactively participating in the proceedings, the contention raised by the petitioner at this stage only appears to be an afterthought. 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. Petition dismissed. Issues: Whether the trial court's order of cognizance dated 25.09.2024 can be set aside on the ground that the accused was not afforded a pre-cognizance hearing in terms of Section 223 of the BNSS, 2023.Analysis: The Court examined whether the proviso to Section 223 BNSS required setting aside the cognizance order where an accused alleges denial of a pre-cognizance hearing. The Court noted the legal meaning of 'cognizance' as judicial notice of an offence, and that taking cognizance does not require a formal speaking order. The record showed the accused and his counsel were present when cognizance was taken and were later heard at length on bail, where the trial court considered complaint material and rejected bail under the twin conditions of Section 45 PMLA. The Court also considered principles requiring demonstration of prejudice from any breach of natural justice and authorities indicating that mere technical non-compliance will not lead to setting aside an order absent prejudice or failure of justice. The petition was also examined for delay and insufficiency of explanation for condonation; the accused had been represented throughout and the challenge to cognizance was raised belatedly after a significant delay without adequate cause.Conclusion: The petitioner's challenge to the cognizance order is rejected; the impugned order is sustainable and the petition is dismissed. The decision is in favour of the Respondent.