Belated challenge to cognizance without pre-hearing is untenable after full trial participation absent prejudice.

The petitioner challenged the order dated 26 April 2025 passed by the Special Judge, Prevention of Corruption, CBI West/ED, Lucknow, in Criminal Misc. Case No. 695 of 2025 arising from ECIR/LKZO/10/2020 under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002.

By that order, the Special Judge took cognizance, directed compliance with Sections 207 and 208 CrPC, and issued summons to the accused.

After the impugned order, the petitioner appeared before the trial court; charges were framed in his presence, two prosecution witnesses were examined and cross-examined on his behalf, and his statement under Section 351 BNSS, corresponding to Section 313 CrPC, was recorded.

The petitioner filed the present challenge on 21 August 2026, approximately one year and four months after the cognizance order, explaining the delay on the ground that he had changed counsel and the illegality was noticed only while preparing final arguments.

The Court held that a complaint filed by the Enforcement Directorate under Section 44(1)(b) PMLA is governed by Sections 200–204 CrPC and, for complaints instituted after 1 July 2024, by Chapter XVI of the BNSS, including Section 223.

The proviso to Section 223(1) BNSS prohibits the Magistrate from taking cognizance without giving the accused an opportunity of hearing; according to Kushal Kumar Agarwal v. Directorate of Enforcement, this requirement is mandatory.

In Parvinder Singh v. Enforcement Directorate, the Supreme Court further treated the right as substantive, connected with the accused’s Article 21 right to a fair trial, and held that cognizance taken in breach of the proviso is void ab initio.

However, the Court applied the prejudice principle from K.L. Tripathi v. SBI, approved in Aligarh Muslim University v. Mansoor Ali Khan and State of U.P. v. Sudhir Kumar Singh, under which a breach of natural justice does not warrant relief in the absence of real prejudice.

The Court also relied on Rakesh Kumar Gulati v. Directorate of Enforcement, which declined belated interference where the accused had participated in the proceedings, had not shown prejudice, and had been represented by counsel.

A mere change of counsel was held insufficient to justify a belated challenge, following Rajesh Chetwal v. State.

The Court proceeded on the basis that the petitioner was not granted a pre-cognizance hearing as required by Section 223(1) BNSS.

Nevertheless, unlike the appellant in Parvinder Singh, who challenged the defect at the earliest opportunity, the petitioner remained silent and actively participated in the trial for over a year.

He was present when charges were framed, participated through counsel in the examination and cross-examination of prosecution witnesses, and had his statement recorded under Section 351 BNSS.

The petitioner did not identify any specific prejudice caused by the absence of a pre-cognizance hearing; he merely asserted that the statutory breach itself constituted prejudice.

Applying the prejudice principle and the reasoning in Rakesh Kumar Gulati, the Court held that the petitioner’s conduct amounted to waiver of the objection and that entertaining the challenge at the stage of final submissions would unnecessarily disrupt the trial.

The explanation based on change of counsel was rejected as insufficient.

The petition under Section 528 BNSS was accordingly dismissed, and no interference was made with the cognizance order dated 26 April 2025.