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. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether the challenge to the cognizance-and-summons order should be rejected for belated filing on the ground that the petitioner failed to show 'sufficient cause' for condonation of delay. (ii) Whether the cognizance order was liable to be set aside on the ground that the petitioner was not afforded a pre-cognizance hearing under Section 223 of the BNSS, and if so, whether the petitioner established denial of hearing and resulting prejudice. 2. ISSUE-WISE DETAILED ANALYSIS Issue (i): Condonation of delay / maintainability in view of belated challenge Legal framework (as discussed by the Court): The Court applied the settled approach that delay may be condoned only where 'sufficient cause' is shown, and while a liberal, justice-oriented approach is adopted, explanations must still be credible and adequate. Interpretation and reasoning: The Court found the petition to be filed substantially after the cognizance order. The explanation that the petitioner was in judicial custody and could obtain proper legal advice only after bail was not accepted as sufficient, particularly because the record showed continuous representation through counsel before the Trial Court on numerous dates after the cognizance order. The Court also noted that even after release on bail, the petition was not filed immediately. The Court further held that obtaining different or subsequent legal advice could not justify condoning delay, especially when the asserted grievance was never raised before the Trial Court despite active participation in proceedings. Conclusion: The Court held that 'sufficient cause' was not shown; the delay explanation did not inspire confidence and appeared to be an afterthought. This weighed against entertaining the challenge. Issue (ii): Alleged denial of pre-cognizance hearing under Section 223 BNSS; requirement of showing prejudice Legal framework (as discussed by the Court): The Court examined the nature of 'cognizance' as a stage involving application of mind to the suspected commission of an offence and not requiring a detailed speaking order. The Court also addressed that even where natural justice is invoked, interference is not warranted unless prejudice/failure of justice is shown on the facts. The Court noted that Section 223 BNSS mandates that the accused ought to be heard, but treated applicability as fact-dependent and requiring demonstration of actual denial of hearing. Interpretation and reasoning: The Court rejected the factual premise that the petitioner was denied hearing. It relied on the Trial Court record showing that, on the date the cognizance order was passed, the petitioner (produced from custody through video conferencing) and counsel were present. In the absence of any material explaining how, despite such presence, the petitioner was prevented from being heard, the Court treated the plea as unsubstantiated. The Court further considered that the petitioner was later heard extensively on merits during bail proceedings, where the Trial Court evaluated prima facie material. In that context, raising the pre-cognizance hearing grievance months later was found to be of no practical avail. Separately, the Court held that the petitioner failed to plead or substantiate any concrete prejudice; a bare assertion of 'grave prejudice' was insufficient, particularly given the prolonged inaction in raising the objection at the earliest opportunity. Conclusion: The Court held that the case was not one where it could be said that the petitioner was not heard, and in any event, no specific prejudice was shown. Consequently, the cognizance-and-summons order was not interfered with and the petition was dismissed.