21. CRI APL-1017-26.odt Amberkar IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1017 OF 2026 Shaikh Sharifmiya Amirmiya .. Applicant Versus Directorate of Enforcement & Anr. .. Respondents ....................  Ms. Neha Ahuja a/w Mr. Amit Ahuja, Advocates for Applicant  Mr. Prashant Mishra, Special Counsel a/w Ms. Purva Birla, Ms. Shruti Chande, Mr. Krish Kariya, Akshun Thakur, Ms. Tisha Thakkar & Mr. Ketan Gavhane, Advocate for Respondent No. 1 - ED  Ms. Sangeeta E. Phad, APP for State ................... CORAM : MILIND N. JADHAV, J. DATE : SEPTEMBER 21, 2026 P. C. : 1. Heard Ms. Ahuja, learned Advocate for Applicant; Mr. Mishra, learned Special Counsel, learned Advocate for Respondent No. 1 - ED and Ms. Phad, learned APP for State. 2. Applicant before me is arrayed as accused No. 5 in PMLA Special Case in the predicate offense dated registered on 07.11.2024. The grievance of the Applicant is that the impugned order dated 06.03.2025 was passed without affording an opportunity to the Applicant for contesting the hearing as mandated by the statutory provisions of the first proviso to sub-section (1) of Section 223 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS"). 1 of 4 21. CRI APL-1017-26.odt 3. Mr. Mishra, learned Special Counsel appearing for Respondent No. 1 has placed before the Court written submissions contending that Applicant was physically present when the impugned order was passed and therefore it would not be open for the Applicant to contend that he was not heard. In support of his submission, he would refer to and rely upon the decision of the Delhi High Court in the case of Rakesh Kumar Gulati v. Directorate of Enforcement passed in Criminal Revision Petition No. 249/2025 wherein it is held that once the accused person was present present before the Court and represented by an Advocate, it cannot be subsequently stated that he was not given an opportunity of being heard. 4. In the present case, he would vehemently argue that present Application is filed after an inordinate delay of 440 days. He would also refer to another decision passed by the Allahabad High Court in the case of Brijkishore @ Birji v. Assistant Director, Directorate of Enforcement in Application under Section 528 BNSS No. 4506 of 2026 wherein it is held that challenge against the order of taking cognizance cannot be entertained in cases where the accused person has participated in the trial. 5. I have considered the submissions made by Mr. Mishra. An attempt is made by the prosecution to show that the Applicant before me was duly represented by an Advocate at various points of time 2 of 4 21. CRI APL-1017-26.odt when the cognizance was taken as also subsequently in the trial. The issue before the Court is in regard to taking of cognizance by the Court and cognizance can only be taken if the mandate provided under the proviso to sub-section (1) of Section 223 is duly complied with in its letter and spirit. The substantive right provided under the aforesaid provision is such a right upon an accused person which forms part of the right of an accused to a fair trial enshrined under Article 21 of the Constitution of India. The word "shall be" appearing in the first proviso has been interpreted by the Supreme Court to be construed to be mandatory in nature enuring to the benefit of the accused person and it has been held that cognizance of an offense taken by the Court without due compliance of the aforesaid proviso would be void ab initio. 6. The case of the Applicant before me is squarely covered by the decision in the case of Sunil Kumar Garg v. The State of Maharashtra & Anr. passed in Criminal Writ Petition No. 4111 of 2026 on 31.08.2026 as also several other cases, copies of which are placed before me by Ms. Ahuja. In that view of the matter, Ms. Ahuja has made out a case for grant of relief in the present Application. 7. The order dated 06.03.2025 stands quashed and set aside. It is directed that the Applicant shall present himself before the concerned Sessions Court and said Sessions Court is directed to fix a date within 3 of 4 21. CRI APL-1017-26.odt a period of four weeks from today and hear the Applicant for taking cognizance of the offense against him in accordance with law. Applicant shall keep his Advocate present on the appointed date so that the submissions made on his behalf will be heard by the Court and a reasoned speaking order will passed thereon in accordance with law. 8. All contentions of Respondent No. 1 - Enforcement Directorate are also kept expressly open. 9. With the above directions, Criminal Application No. 1017 of 2026 is allowed and disposed. Amberkar [ MILIND N. JADHAV, J. ] 4 of 4 RAVINDRA MOHAN AMBERKAR Digitally signed by RAVINDRA MOHAN AMBERKAR Date: 2026.09.22 15:06:48 +0530