SUNIL KUMAR GARGversusTHE STATE OF MAHARASHTRA AND ANR

                                                               36.WP.4111.2026.doc

Ajay

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          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

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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.




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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



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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




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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

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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

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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


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                                    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
              Digitally signed by
AJAY       AJAY TRAMBAK
TRAMBAK    UGALMUGALE
UGALMUGALE Date: 2026.08.31
              11:41:52 +0530




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