SHAIKH SHARIFMIYA AMIRMIYAversusASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT

                                                                    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").




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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

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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

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           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. ]

                      Digitally signed
                      by RAVINDRA
           RAVINDRA   MOHAN
           MOHAN      AMBERKAR
           AMBERKAR   Date:
                      2026.09.22
                      15:06:48 +0530




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