Brijkishore @Birju vs Assistant Direcotor Directorate Of Enforcement Ashok Marg Hazratgang Lko And Another

HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
APPLICATION U/S 528 BNSS No. - 4506 of 2026
Brijkishore @ Birju
.....Applicant(s)
Versus
Assistant Director, Directorate of Enforcement,
Ashok Marg, Hazratganj, Lucknow and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Ayodhya Prasad Mishra A.P. Mishra,
Jaylaxmi Upadhyay, Shesh Ram Verma
Counsel for Opposite Party(s) : Kuldeep Srivastava
AFR
Court No. - 14
HON'BLE SUBHASH VIDYARTHI, J.
1. 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.
2. 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.
3. 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

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: 2026 SCC OnLine SC 903 and
Directorate of Enforcement Kushal
Kumar Agarwal versus Directorate of Enforcement : 2025 SCC
OnLine SC 1221.
4. 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.
5. In : 2025 SCC
Kushal Kumar Agarwal v. Enforcement Directorate
OnLine SC 1221, the Hon’ble Supreme Court referred to and followed the
ratio laid down in the cases of : 2024 SCC
Yash Tuteja v. Union of India
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.

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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.”
6. In : 2026 SCC OnLine
Parvinder Singh v. Enforcement Directorate
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.”
7. 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.”
8. 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

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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 (supra) was
Parvinder Singh
decided.
9. 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.”
10. In : (1984) 1 SCC 43, the Hon’ble Supreme
K.L. Tripathi v. SBI
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

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…”
11. The aforesaid principle has been quoted with approval and followed in
:(2000) 7 SCC 529
Aligarh Muslim University v. Mansoor Ali Khan
and in State of U.P. v. Sudhir Kumar Singh : (2021) 19 SCC 706.
12. 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.
13. 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
(supra) and held that: -
v. Mansoor Ali Khan
27. As noted above but for the averment of the petitioner that
prejudice has been caused, nothing has been pleaded or asserted to

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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.”
14. 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

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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.
15. 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.
16. 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 : 2011 SCC
Rajesh Chetwal versus State
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.
17. 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.

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18. 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.
19. 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.
20. In view of the foregoing discussion, the petition is .
dismissed

(Subhash Vidyarthi, J.)
Whether the order is speaking - Yes
Whether the order is reportable - Yes

(Subhash Vidyarthi, J.)

September 1, 2026
Raj Nigam
Digitally signed by :-
RAJ NIGAM
High Court of Judicature at Allahabad,
Lucknow Bench