Disclaimer: This has been reported after the availability of the order of the Court and not on media reports so as to give an accurate report to our readers.
Allahabad High Court: In a petition filed under Section 528, Nagarik Suraksha Sanhita, 2023 (BNSS), challenging an order taking cognizance of offences under Sections 3 and 4, Prevention of Money Laundering Act, 2002 (PMLA), on the ground that the accused was not afforded an opportunity of hearing before cognizance was taken, the Single Bench of Subhash Vidyarthi, J., held that although the proviso to Section 223(1) BNSS mandates an opportunity of hearing to the accused before taking cognizance, the belated challenge could not be entertained in the facts of the present case. The Court noted that the petitioner had appeared before the trial court, participated in the proceedings, had charges framed in his presence, cross-examined the prosecution witnesses and had his statement recorded under Section 351 BNSS [Section 313, Criminal Procedure Code, 1973 (CrPC)], without raising any objection regarding denial of pre-cognizance hearing.
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Background
The petitioner challenged order dated 26 April 2025 by which the Special Judge, Prevention of Corruption, CBI West/Enforcement Directorate (ED), Lucknow took cognizance of offences under Sections 3 and 4 PMLA, directed compliance with Sections 207 and 208 CrPC and issued summons. He contended that the order was passed without granting him an opportunity of hearing, contrary to the proviso to Section 223(1) BNSS, relying on Parvinder Singh v. Enforcement Directorate, 2026 SCC OnLine SC 903 and Kushal Kumar Agarwal v. Enforcement Directorate, 2025 SCC OnLine SC 1221.
The ED opposed the challenge, submitting that the petitioner had appeared before the trial court, participated in framing of charges, cross-examined all prosecution witnesses and had his statement recorded under Section 351 BNSS, while the trial had reached the stage of final submissions. The petitioner attributed the delay to a change of counsel, stating that his subsequent counsel noticed the alleged defect while preparing for final arguments.
Analysis
At the very outset, the Court opined that since the petitioner did not object to being deprived of an opportunity of hearing before cognizance was taken, despite appearing before the trial court, and thereafter participated in the trial where charges were framed, the 2 prosecution witnesses were examined and cross-examined on his behalf, and his statement under Section 351 BNSS (Section 313 CrPC) was recorded, the challenge raised only after the matter had been fixed for final submissions could not be entertained.
The Court found that the petitioner had availed the opportunity of hearing at the subsequent stages of the trial and, in the absence of any prejudice caused to him by the order dated 26 April 2025, the belated challenge to the cognizance order was not maintainable. The Court observed that mere change of counsel was of no ground to entertain a challenge to the cognizance order when the trial was at the stage of final hearing.
Finding no ground to the petition at such belated stage the Court dismissed the petition.
[Brijkishore v. Enforcement Directorate, 2026 SCC OnLine All 28729, decided on 1-9-2026]
Advocates who appeared in this case:
For the petitioner: Ayodhya Prasad Mishra A.P. Mishra, Jaylaxmi Upadhyay, Shesh Ram Verma
For the respondent: Kuldeep Srivastava
