TaxTMI 
TaxTMI 
2025 (11) TMI 1101
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....eby condoned. Cr. Revison No.685 of 2025 4. The instant criminal revision has been filed under Sections 438 read with Section 442 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'BNSS') seeking setting aside of the order dated 08.01.2025 passed by the learned Sessions Judge-cum-Special Judge (PMLA), Patna (hereinafter referred to as 'the learned Special Court') in Special Trial No. (PMLA) 10/2024 along with proceedings emanating therefrom, whereby and whereunder the learned Special Court has taken cognizance for the offence punishable under Sections 3 & 4 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PMLA') against the petitioner and others. 5. Brief facts of the case are that the respondent no.2/opposite party no.2, which is an agency mandated with the task of enforcing the provisions of PMLA, registered ECIR/PTZO/04/2024 dated 14.03.2024 (hereinafter referred to as 'ECIR') and an Addendum ECIR dated 20.09.2024 on the strength of two FIRs against one Sanjeev Hans and others wherein it has been alleged that Sanjeev Hans, while in public service, amassed huge assets, acquired with the help of one Gulab Yadav and Harl....
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....dated 06.08.2024 passed in Crl. Misc. Writ Petition 12287/2024 (Deepu & Ors. vs. State of UP) wherein, the Court, after discussing the law regarding effect of enforcement of the BNSS as relating to the circumstances under consideration, summarized the position holding that the cognizance on the pending investigation on or after 01.07.2024 would be taken as per the BNSS and all the subsequent proceedings including enquiry, trial or appeal would be conducted as per the procedure of BNSS. 11. Therefore, the learned Special Court was duty bound to follow the provision to Section 223 (1) of BNSS regarding giving an opportunity of being heard to the petitioner. But as a matter of fact, no notice or opportunity of being heard has been provided to the petitioner prior to passing of the impugned order taking cognizance on the Supplementary Prosecution Complaint filed against the petitioner. This is in clear contravention and disregard of the express provision of law and hence, the impugned order is unsustainable and liable to be set aside on this ground alone. 12. Mr. Khurana further submitted that the petitioner has neither been called upon for hearing nor has been supplied to any ma....
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.... as it failed to appreciate the applicability of Section 223 of the BNSS to a prosecution complaint filed under the PMLA in the light of Section 65 of PMLA and law laid down by the Hon'ble Supreme Court in Kushal Kumar Agrawal (supra). 15. Thus, Mr. Khurana submitted that the Directorate of Enforcement has taken a consistent stand about necessity of accused being given an opportunity of hearing and applicability of Section 223 of BNSS prior to taking cognizance in the orders passed subsequent to 01.07.2024, i.e., after coming into force of BNSS. 16. Mr. Khurana next referred to the decision of the Calcutta High Court in the case of Tutu Ghosh vs. Enforcement Directorate (order dated 18.07.2025 passed in CRR No. 2072 of 2025) wherein the learned Single Judge held that violation of the first proviso to Section 223 of BNSS vitiates the order taking cognizance and consequential proceedings. After discussing the provisions of law, the learned Single Judge held that denial of opportunity of hearing to the accused persons prior to taking cognizance under Section 210 of BNSS is fatal to such cognizance and vitiates the order of cognizance itself along with the subsequent proceedings ....
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....he decision of the Hon'ble Supreme Court in the case of Dharani Sugars and Chemicals Ltd. vs. Union of India, (2019) 5 SCC 480. 19. Mr. Khurana further submitted that summoning of an accused in a criminal case is a serious matter and criminal machinery cannot be set in motion against a person as a matter of course. Rather, it is the duty of the court to meticulously examine the material on record and exercise great deal of caution to the facts of the case and the law applicable thereto before summoning a person as an accused to face the trial. In the present case, the impugned order is cryptic, non-speaking and has been passed without application of judicial mind. No specific reason has been given by the learned Special Court for taking cognizance against the petitioner nor there is any specific role or allegation against the petitioner other than bald and vague averments made by the opposite parties in the SPC. Summoning of the petitioner for trial for the offences under the rigorous provisions of the PMLA based solely on the opposite party's unsubstantiated assumptions, devoid of any concrete material, is unwarranted and unjust. 20. Mr. Khurana referred to the decision of t....
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....ding void. The learned counsel referred to paragraphs 36.2, 42, 44, 49.2 and 108.4 in support of his contention. 25. Mr. Hossain further submitted that no prejudice has been caused to the petitioner as the petitioner has already been before the court and has got numerous opportunities till the stage of cognizance. There is no occasion for failure of justice on account of denial of opportunity of being heard to the petitioner. If no prejudice was caused to the petitioner, the petitioner cannot claim the trial got vitiated by not affording the petitioner opportunity of hearing before taking of cognizance. 26. Mr. Hossain, thus, submitted that even assuming that the learned court was not empowered by law to take cognizance without hearing the accused, nevertheless does so, the act would fall within the ambit of Section 506 (e) of BNSS. Further, under Section 511 of BNSS, no such order is vitiated unless it has occasioned in a failure of justice. 27. Mr. Hossain next submitted that the petitioner cannot claim prejudice on the ground of not being heard at the stage of cognizance when a detailed hearing under Section 45 of PMLA has already been conducted and decided against him.....
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....er been demonstrated or pleaded by the petitioner in his petition on account of being not granted opportunity in terms of proviso to Section 223 of BNSS and, therefore, the proceedings cannot be set aside unless miscarriage of justice is pleaded and proved. The learned counsel placed his reliance on the decision of the Hon'ble Supreme Court in the case of Fertico Mktg. & Investment (P) Ltd. vs. CBI, (2021) 2 SCC 525 in support of his contention. 30. Mr. Hossain reiterated that no prejudice would be caused to the petitioner as the offence is triable by a court of sessions and the accused would have a right of hearing at the stage of framing of charges. The offence under the PMLA is triable by a court of sessions as provided under Section 44 (d) of PMLA. Hence, before the stage of framing of charges under Section 251 of BNSS, the accused has a right to be heard and even to be discharged under Section 250 of BNSS. The proviso to Section 223 of BNSS was enacted to remedy the absence of a right to discharge in summons triable cases. Guided by the mischief rule in Heydon's case (1584), the Court must adopt an interpretation that furthers the object of the law and suppresses the mischi....
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....ned Special Judge, PMLA, Patna before cognizance was taken. But the contention of the petitioner about violation of provision of Section 223 of BNSS is wholly misconceived as statutory requirement cannot be applied retrospectively to vitiate proceedings already concluded prior to judgment of the Hon'ble Supreme Court in the case of Kushal Kumar Agarwal (supra). Mr. Hossain further submitted that reliance placed by the petitioner on Section 223 of BNSS and on the judgment of the Hon'ble Supreme Court in the case of Kushal Kumar Agrawal (supra) is wholly misplaced since the said interpretation cannot operate retrospectively to unsettle cognizance already taken prior to 09.05.2025 when the judgment in the case of Kushal Kumar Agrawal (supra) was pronounced. PMLA being a special legislation overrides the general procedural provisions of the BNSS. The learned trial court took the cognizance according to law prevailing and it cannot be asked to go back in time and redo the stage of cognizance. When the cognizance was taken, there was no judicial precedent mandating a pre-cognizance hearing of the accused under Section 223 of BNSS. The said judgment, at best, operates prospectively and ca....
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....upra) in the present case. 36. Mr. Khurana further submitted that it is absurd to contend that law would become applicable only after it is interpreted by the Hon'ble Supreme Court. Mr. Khurana further submitted that the contention of learned special counsel for the Directorate of Enforcement that as the cognizance has already been taken and the judgment of the Hon'ble Supreme Court in the case of Kushal Kumar Agrawal (supra) was rendered subsequently, there was no requirement of giving opportunity of hearing to the accused/petitioner in terms of Section 223 of BNSS. Mr. Khurana further submitted that the law remains the same and if the trial court proceeded on wrong appreciation of law, it is ludicrous to say that the cognizance taken earlier was correct but has only subsequently become bad in the light of the pronouncement of Kushal Kumar Agrawal (supra). It is settled law that the interpretation by the courts from time to time only clarifies the position of law and does not alter or amend. So, it is completely wrong on part of the learned special counsel to submit that the judgment of Kushal Kumar Agrawal (supra) would only have a prospective effect and law was someth....
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....the day one is what the Hon'ble Supreme Court said subsequently and not what the trial court meant it to be. There cannot be two laws in operation side by side, one prior to the interpretation by the Hon'ble Supreme Court and the other after the interpretation of the Hon'ble Supreme Court. The law is what the Hon'ble Supreme Court says it is and, therefore, the contention that law was something else prior to the decision of Kushal Kumar Agrawal (supra) is not tenable. 42. Section 223 of BNSS is the provision which is relied on by the petitioner to assail the order of cognizance dated 08.01.2025 passed by the learned Special Court, which reads thus : "223. Examination of complainant.- (1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Prov....
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....ion with Section 223 of BNSS. 45. Further, Section 506 of BNSS reads as under : "506. Irregularities which do not vitiate proceedings.- "If any Magistrate not empowered by law to do any of the following things, namely:- (a) to issue a search-warrant under Section 97; (b) to order, under Section 174, the police to investigate an offence; (c) to hold an inquest under Section 196; (d) to issue process under Section 207, for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction; (e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 210; (f) to make over a case under sub-section (2) of Section 212; (g) to tender a pardon under Section 343; (h) to recall a case and try it himself under Section 450; or (i) to sell property under Section 504 or Section 505, erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered". 46. Therefore, Section 210 of BNSS empowers the Magistrate to take cogniz....
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....s Court in State of U.P. v. Singhara Singh AIR 1964 SC 358 and the rule laid down in Nazir Ahmad case (supra) was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law". 48. Therefore, I find no merit in the contention of the learned special counsel for the Directorate of Enforcement that the petitioner failed to demonstrate or show that any prejudice was caused to him due to not affording an opportunity of pre-cognizance hearing. 49. So far as other contention of the learned special counsel for the Directorate of Enforcement about the petitioner having a number of opportunities prior to cognizance and also having opportunity of hearing at the time of framing of charges is concerned, the same is simply unsustainable. 50. The contention of the learned special counsel for the Directorate of Enforcement that the petitioner has been given ample opportunity of hearing as he was repeatedly summoned and examined under Section 50 of PMLA, confronted with incriminating material and afforded adequate opportunity to explain his position during investigation, would not cut muc....