Arun Pati Tripathi Vs Directorate of Enforcement

Being aggrieved with the order dated 07.03.2025 passed by the learned Special Judge (PMLA), Raipur (C.G.) in the prosecution complaint filed in ECIR/RPZO/04/2024 dated 11.04.2024, whereby the learned

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trial Court took congnizence against the present applicant for the offences under Section 3 read with Section 4 of the Prevention of Money Laundering Act, 2002.

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Learned counsel for the applicant draw the attention to this Court on the following two grounds :

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(i) The prosecution complaint was filed under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as ‘the PMLA’) on 05.10.2024.

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(ii) On 05.10.2024, the learned trial Court took cognizance against the applicant and on 07.02.2025, this Court quashed the order of cognizance and remanded back the matter to the learned Special Court with liberty granted to the respondent-ED to proceed further before the trial Court for taking cognizance a fresh against the applicant. On 07.03.2025, the Special Court passed the order of cognizance against the applicant without giving opportunity of hearing to the applicant which is bad in law.

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It is argued by learned counsel for the applicant that in the matter of Kushal Kumar Agarwal Vs. Directorate of Enforcement passed in Criminal Appeal No.2749 of 2025 on 09.03.2025, in which it is held that proviso to sub-section (1) of Section 223 of the BNSS puts an embargo on the power of the Court to take cognizance by providing

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that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.

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Learned counsel for the respondent-ED not opposes the submission as per the proviso to sub-section (1) of Section 223 of the BNSS because the Hon’ble Supreme Court in the matter of Kushal Kumar Agarwal (supra) has already been dealt with the matter and held that when an opportunity of being heard was not given by the learned Special Court to the applicant before taking cognizance of the offence it is against the proviso to sub-section (1) of Section 223 of the BNSS.

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I have heard learned counsel for the parties and perused the record with utmost circumspection.

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It is an admitted fact that the present complaint was filed on 05.10.2024 and learned Special Judge has took cognizance on 07.03.2025 against the present applicant without giving opportunity of hearing before taking cognizance, therefore, in the light of judgment passed by the Hon’ble Supreme Court in case of Kushal Kumar Agarwal (supra), the impugned order dated 07.03.2025 is set aside only on the ground of non compliance with the proviso to sub-section (1) of Section 223 of the BNSS.

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Needless to say that I have not expressed any opinion on merits of the complaint as well as on the prosecution sanction order. I direct to the applicant/revisioner and the respondent-ED to appear before the

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Special Court on 05.07.2025 (this date is given with the consent of learned counsel for the parties), so that the learned Special Judge can be given an opportunity of being heard in terms of proviso to subsection (1) of Section 223 of the BNSS. I make it clear that no further notice shall be issued by the Special Court to the applicant/revisioner.

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Accordingly, the instant criminal revision is allowed in part.

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Sd/-

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(Arvind Kumar Verma) Judge

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Vasant

Arun Pati Tripathi v. Directorate of Enforcement

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Arun Pati Tripathi v. Directorate of Enforcement

Case brief

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