36.WP.4111.2026.doc Ajay IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 4111 OF 2026 Sunil Kumar Garg .. Petitioner Versus The State of Maharashtra and Anr. .. Respondents ....................  Mr. Prashant Patil, through video conferencing a/w. Ms. Harshada Parbhane and Mr. Rishabh Srivastav, Advocates for Petitioner.  Ms. Gauri Rao, APP for Respondent No.1 – State.  Mr. Sachin Ramrao Pawar, Advocate for Respondent No.2 – ED. ......…........... CORAM : MILIND N. JADHAV, J. DATE : AUGUST 31, 2026. P.C.: 1. Heard Mr. Patil, learned Advocate appearing through video conferencing for Petitioner; Ms. Rao, learned APP for Respondent No.1 – State and Mr. Pawar, learned Advocate for Respondent No.2 – ED. 2. This Petition is filed by the Petitioner under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) read with Article 227 of the Constitution of India to quash and set aside the order dated 28.04.2025 passed in PMLA Special Case No.652 of 2025, by virtue of which the Special Court at Greater Sessions, Mumbai. 3. Petitioner is arraigned as Accused No.1 in the complaint filed by the prosecution arising out of ECIR/MBZO-II/59/2023 registered for alleged commission of offences punishable under Sections 3 and 4 1 of 8 36.WP.4111.2026.doc of the Prevention of Money Laundering Act, 2002. Prosecution complaint against the Petitioner is filed on 26.03.2025. 4. Mr. Patil, learned Advocate appearing for the Petitioner would submit that by order dated 28.04.2025 cognizance of the prosecution complaint has been taken and hence process of summons has been issued against the Petitioner and accused No.2 without following the due procedure of law as contemplated under Section 223(1) of BNS. He would submit that no notice has been issued to the Petitioner under the said provision and Petitioner has not been given any opportunity of being heard before taking cognizance. He would submit that FIR No.380 of 2022 dated 14.03.2022 was registered with the Chakan Police Station, Pune based upon the complaint on Mr. Sandeep J. Choudhary, Managing Director of HUF India Pvt. Ltd. under Sections 420, 406, 409, 467 and 471 read with 34 of the IPC. 5. Mr. Patil, learned Advocate would argue that complaint is filed by the Directorate of Enforcement before the Special Court at Mumbai on 26.03.2025. He would submit that on 28.04.2025, without issuing notice to the Petitioner and other accused persons as mandated by the proviso of Section 223 of BNSS, the Special Court, ex-parte took cognizance and issued process against the Petitioner and other accused persons. 2 of 8 36.WP.4111.2026.doc 5.1. He has taken me through the gist of the prosecution case as averred in paragraph No.9 of the Petition. For the sake of brevity, I do not deem it necessary to repeat and reiterate the same herein. He would submit that one Sandeep Jagdish Choudhary, Managing Director of HUF India registered First Information Report (FIR) on 14.03.2022 for offences punishable under Sections 420, 406, 409, 467, 471 read with 34 of Indian Penal Code (for short ‘IPC’) against Petitioner and 13 other persons. 5.2. He would submit that based on the aforesaid FIR, Respondent No.1 registered ECIR case on 30.11.2023. He would submit that charge in the complaint is that from 2010 to 2020 the ex- employees of the said Company collectively diverted funds to the tune of Rs.139 crore approximately for their own financial gain and for such misappropriation of finances complaint is filed against accused persons including present Petitioner. There are other factual submissions also which need not be gone into but at this stage since the present Petition is filed solely on the ground of Petitioner not being given an opportunity of hearing neither notice is issued to Petitioner and order for issuance of process has been passed, the Petition is decided on the aforesaid ground. 5.3. He would submit that pursuant to completion of investigation, Respondent No.1 - Enforcement Directorate filed 3 of 8 36.WP.4111.2026.doc complaint before the Special Court on 26.03.2025 and on 28.04.2025 without even issuing notice to Petitioner and other co-accused persons under Section 223 of BNSS, the Special Court took ex-parte cognizance and issued process. 5.4. In the above set of facts, Mr. Patil would submit that Section 223 of the BNSS corresponds to Section 200 of the Criminal Procedure Code, 1973 (for short ‘Cr.PC’). He would submit that the factual position after filing of complaint and issuance of process is undisputed and admittedly no notice has been issued to the Petitioner by the Sessions Court. 5.5. He would submit that Section 223(1) of BNSS incorporates right of hearing at a pre-cognizance stage and clearly mandates that no cognizance of an offence on the basis of a complaint shall be taken by the Magistrate without giving the accused an opportunity of being heard. He would submit that the said provision is there on the statute to provide an opportunity of hearing to the accused person at a pre- cognizance stage with a view to ensure that the accused is not made to suffer the ordeal of facing the prosecution by resorting to private complaint mechanism indiscriminately. 5.6. In support of his above submission, he has drawn my attention to the decision of the Supreme Court in the case of Kushal 4 of 8 36.WP.4111.2026.doc Kumar Agarwal Vs. Directorate of Enforcement,1 wherein the question of applicability of the first proviso to Section 223(1) of the BNSS, 2023 regarding warranting an opportunity of hearing to the accused person in a PMLA prosecution complaint came up before the Supreme Court. He would submit that in paragraph Nos.5 to 7 of the said decision, the Supreme Court answered the aforesaid question as follows:- “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/s Union of India and Tarsem Lal v/s 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. 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.” 5.7. He would submit that in a very recent decision of the Supreme Court in the case of Parvinder Singh Vs. Directorate of Enforcement2, the Supreme Court once again considered the applicability of the first proviso to Section 223(1) of the BNSS to a prosecution complaint under PMLA, 2002 and held that the said provision confers a substantive right upon the accused person to be 1 2025 SCC OnLine SC 1221 2 (2026) SCC OnLine SC 903 5 of 8 36.WP.4111.2026.doc 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. 5.8. The Supreme Court stressed upon the word "shall" occurring in the first proviso to be construed to be mandatory in nature, enuring to the benefit of an accused person and held that cognizance of an offence taken by a Court without due compliance of the aforesaid proviso would be void ab initio. 5.9. He would argue that the Supreme Court concluded that Sections 200 to 205 of the Cr.PC and now Sections 223 to 228 of BNSS would be applicable to proceedings under the PMLA 2002 and non- compliance with the first proviso to Section 223(1) of the BNSS vitiates the order taking cognizance and such an order cannot be sustained in the eyes of law. 5.10. In support of his case, he has referred to and relied upon the decisions (i) Neville Tuli Vs. Securities And Exchange Board of India and Ors.3 (ii) Mr. Sunil J. Anandpara and Anr. Vs. Directorate of Enforcement and Anr.4. 5.11. Hence, he would persuade the Court to allow the Petition in terms of prayer clause (a) and set aside the impugned order dated 28.04.2025. 3 Writ Petition No.5242 of 2025 – Decided on 15.07.2026 4 Cri. Writ Petition No.3159 of 2025 – Decided on 22.07.2026 6 of 8 36.WP.4111.2026.doc 6. Mr. Pawar, learned Advocate appearing on behalf of Respondent No.2 – Enforcement Directorate, in support of the case of Respondent No.1 and the impugned order has persuaded me to consider a recent judgment of the Supreme Court in the case of Parvinder Singh Vs. Directorate of Enforcement (supra). 7. After going through the aforesaid submissions, it is prima facie seen that the learned Special Counsel appearing for Respondent No.2 – Directorate of Enforcement does not dispute the legal position nor he disputes the fact that Petitioner was not heard by the Special Court before it took cognizance. The fair-mindedness with which the learned Counsel for Respondent No.2 – Directorate of Enforcement has argued the present matter is appreciated by the Court. 8. In view of the above, the impugned order dated 28.04.2025 cannot be sustained on the ground that the Petitioner was not given an opportunity of hearing before taking cognizance. Accordingly, the said impugned order dated 28.04.2025 passed in PMLA Special Case No.652 of 2025 is quashed and set aside. As a consequence of setting aside the order dated 28.04.2025, the proceedings arising out of ECIR bearing No.ECIR/MBZO-II/59/2023 are restored to the file of the Special Court at the stage of cognizance. 9. Petitioner shall appear on the next date of hearing before the 7 of 8 36.WP.4111.2026.doc Special Court and the Special Court shall give an opportunity of hearing to the Petitioner in accordance with the extant legal position. 10. Issuance of any further notice to the Petitioner is dispensed with. Petitioner is directed to appear on the next date before the Special Court. The Advocate for the Petitioner shall convey the same to the Petitioner. No further notice shall be required to be issued to the Petitioner. Petitioner shall however be informed by Respondent No.1 – Directorate of Enforcement well in advance about the date of listing of the aforesaid case before the Special Court. 11. In view of the above, Petition is accordingly allowed in terms of prayer clause ‘a’. 12. Parties are directed to cooperate with the Special Court. 13. Parties are directed to act on a certified or server copy of this order downloaded from the website of the High Court of Bombay. 14. Writ Petition is disposed in the above terms. [ MILIND N. JADHAV, J. ] Ajay 8 of 8 AJAY TRAMBAK UGALMUGALE Digitally signed by AJAY TRAMBAK UGALMUGALE Date: 2026.08.31 11:41:52 +0530