Case Law Details
Arun Pati Tripathi Vs Directorate of Enforcement (Chhattisgarh High Court)
Chhattisgarh High Court has set aside an order by the Special Judge (Prevention of Money Laundering Act – PMLA), Raipur, that took cognizance against Arun Pati Tripathi for offenses under the PMLA, 2002. The High Court’s decision, pronounced on July 16, 2025, was based solely on the ground that the applicant was not afforded an opportunity of being heard before cognizance was taken, a violation of procedural safeguards.
The case stems from a prosecution complaint filed by the Directorate of Enforcement (ED) in ECIR/RPZO/04/2024 on October 5, 2024, alleging offenses under Section 3 read with Section 4 of the PMLA. The Special Judge initially took cognizance against Mr. Tripathi on the same day. However, this initial cognizance order was quashed by the Chhattisgarh High Court on February 7, 2025, which remanded the matter back to the Special Court with liberty for the ED to proceed afresh for taking cognizance.
Following the remand, the Special Judge again took cognizance against Mr. Tripathi on March 7, 2025. This subsequent order became the subject of the present challenge before the High Court.
The applicant’s counsel argued that the Special Court’s action on March 7, 2025, was “bad in law” because it failed to provide Mr. Tripathi an opportunity of being heard before taking cognizance. This contention was supported by a recent Supreme Court judgment in the case of Kushal Kumar Agarwal Vs. Directorate of Enforcement (Criminal Appeal No.2749 of 2025, dated March 9, 2025). In that ruling, the Supreme Court held that the proviso to sub-section (1) of Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) places an embargo on the power of the Court to take cognizance without first granting the accused an opportunity of being heard.
Significantly, the learned counsel for the respondent-ED did not oppose this submission, acknowledging that the Supreme Court’s decision in Kushal Kumar Agarwal had indeed addressed this procedural requirement.
After reviewing the submissions and the record, the Chhattisgarh High Court found it to be an “admitted fact” that the Special Judge took cognizance on March 7, 2025, without providing Mr. Tripathi an opportunity for a hearing. Consequently, in light of the Supreme Court’s precedent in Kushal Kumar Agarwal, the High Court set aside the impugned order dated March 7, 2025.
The High Court explicitly clarified that its decision was based only on the non-compliance with the proviso to sub-section (1) of Section 223 of the BNSS, and it did not express any opinion on the merits of the complaint or the prosecution sanction order.
To rectify the procedural lapse, the High Court directed both Arun Pati Tripathi and the Directorate of Enforcement to appear before the Special Court on July 5, 2025. This appearance is intended to facilitate the Special Judge in providing Mr. Tripathi the requisite opportunity of being heard in terms of the BNSS proviso before fresh cognizance is considered. The High Court also made it clear that no further notice would be required from the Special Court to the applicant for this purpose.
The criminal revision filed by Mr. Tripathi was accordingly allowed in part, ensuring adherence to the principles of natural justice in the cognizance process under PMLA.
FULL TEXT OF THE JUDGMENT/ORDER OF CHHATTISGARH HIGH COURT
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 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.
2. Learned counsel for the applicant draw the attention to this Court on the following two grounds :
(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.
(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.
3. 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 that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.
4. 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.
5. I have heard learned counsel for the parties and perused the record with utmost circumspection.
6. 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.
7. 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 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 sub-section (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.
8. Accordingly, the instant criminal revision is allowed in part.
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