The Punjab & Haryana High Court has dismissed a petition filed by Vivo India, challenging a Special Court order that denied a pre-cognizance hearing to a proposed accused in a Serious Fraud Investigation Office (SFIO) prosecution, ruling that the newly introduced procedural safeguards under the first proviso to Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) do not apply to statutory complaints filed under the Companies Act, 2013.

It was observed that since an SFIO investigation report is statutorily treated as a "police report" by virtue of a legal fiction under Section 212(15) of the Companies Act, it automatically falls outside the definition of a standard criminal complaint.

The Court held that the directions for issuance of pre-cognizance notice as envisaged under Section 223 of the BNSS in a prosecution initiated under the Act, 2013, are alien to the statutory scheme as provided under the Act, 2013 and will frustrate the object of the Act, 2013.

Consequently, the Court held that the Special Court—operating as a Court of Session—is under no statutory obligation to afford a preliminary opportunity of hearing to the proposed accused at the threshold stage of taking cognizance, as the special corporate statute effectively overrides general criminal procedure.

The Bench of Justice Subhas Mehla held, "Mere nomenclature or categorization in the filing register cannot override the true legal character of proceedings as emerging from the statutory framework. As mentioned above, the nomenclature as ‘complaint in writing’, has been used and to emphasize the fact that the prosecution can be initiated after due approval of the Central Government to be granted on appreciation of the investigation report and the same cannot be initiated by the investigating officer directly by submitting the report to the Special Court. This is a deliberate deviation from the procedure prescribed under Cr.P.C./BNSS. Otherwise also, the Act, 2013 has made it totally clear that the matter is to be proceeded with as the case instituted on a police report...."


The Court added, "Consequently, it is held that prosecution complaints instituted by the SFIO pursuant to investigation under Section 212 of the Act, 2013 are not governed by the proviso to Section 223 of the BNSS, and the proposed accused have no vested right to claim a pre-cognizance hearing before the Special Court."

Senior Advocate R.S. Rai appeared for the Petitioner, while Senior Advocate Arvind Moudgil appeared for the Respondent.

Brief Facts

The petitioner preferred the present petition under Section 528 of the BNSS seeking to set aside an impugned order passed by the Additional Sessions Judge-cum-Special Court. The SFIO had instituted a criminal complaint case against the petitioner and several others for alleged offences under the Companies Act, 2013.

Upon learning about the institution of the case through the court website, the petitioner appeared through counsel while arguments on the point of cognizance were underway. The petitioner filed an application before the Special Court asserting that since the matter was a criminal complaint case, the court was statutorily mandated to grant a pre-cognizance hearing to the proposed accused under the first proviso to Section 223 of the BNSS. The Special Court subsequently dismissed the petitioner's application, which prompted the petitioner to assail the dismissal order before the High Court.

Submissions on Behalf of the Petitioner

It was contended by the petitioner that the complaint was instituted after the enforcement of the BNSS. By virtue of Section 438 of the Companies Act, 2013, the procedural framework of the general criminal law was expressly made applicable to proceedings before the Special Court, thereby granting the proposed accused the substantive safeguard of a mandatory pre-cognizance hearing.

The petitioner argued that the case was consciously filed, registered, and characterized as a "complaint" under the relevant judicial category. It was submitted that the Special Court fell into error by inconsistently treating the very same filing as a police report simply to deny the statutory right of a hearing.

It was further argued that the legal fiction created under Section 212(15) of the Companies Act, 2013—which treats the SFIO report as a police report—was strictly confined to the subsequent stage of framing charges. It could not be extended backwards to alter the character of the case at the pre-cognizance stage.

The petitioner maintained that the Special Court takes cognizance of original complaints directly as a court of first instance without any committal proceedings. Therefore, the provisions governing complaints under Chapter XVI of the BNSS applied, rather than the sessions trial provisions.

Submissions on Behalf of the Respondent (SFIO)

Conversely, the SFIO submitted that the Companies Act, 2013 constitutes a self-contained code containing specific provisions for investigation and trial, which effectively overrode the general provisions of the BNSS.

The respondent contended that since the prosecution was initiated after a thorough investigation by a specialized statutory agency, the final report was legally deemed to be a police report under the criminal procedure framework. Consequently, the provisions governing ordinary complaint cases were entirely inapplicable.

It was argued that the pre-cognizance hearing contemplated under Section 223 of the BNSS was intended exclusively for private complaints where no prior investigation had taken place. It could not be extended to high-level statutory prosecutions initiated at the instance of the Central Government.

Observations of the Court

The High Court observed that the Companies Act, 2013 is a special statute and a self-contained code that exhaustively deals with every procedural stage from investigation up to the framing of charges. The court noted that the distinct statutory mechanism provided under Sections 212, 435, 436, 438, and 439 of the Act collectively establishes a separate legislative scheme, which distinguishes these corporate prosecutions from general criminal proceedings governed by the BNSS.

The court categorically rejected the petitioner's restrictive contention that the legal fiction created under Section 212(15) of the Companies Act, 2013 applies solely at the stage of framing charges. It was observed that a cumulative reading of the statutory provisions makes it clear that while prosecutions are initiated through a 'complaint in writing' to ensure proper administrative authorization, a case accompanied by a detailed SFIO investigation report must be treated on the same procedural footing as a case instituted on a police report. Since Section 2(1)(h) of the BNSS explicitly excludes a police report from the definition of a 'complaint', the provisions of Section 223 of the BNSS cannot be dynamically imported.

Invoking the well-settled jurisprudential principle of generalia specialibus non derogant, the court observed that where a special enactment provides a distinct procedure, the general law must yield to the extent of any inconsistency. This overriding effect is reinforced by Section 438 of the Companies Act, 2013 and Sections 4 and 5 of the BNSS, which explicitly protect special procedural frameworks. Section 436(1)(d) of the Act empowers the Special Court to take cognizance directly upon perusal of the record without requiring the presence or hearing of the accused at that threshold, deliberately omitting any pre-cognizance notice to ensure the swift adjudication of serious economic frauds.

The court drew a clear line of demarcation between private complaints filed by individuals and statutory complaints preferred by public servants. It was observed that the first proviso to Section 223 of the BNSS was primarily enacted as a safeguard against frivolous private complaints that lack prior institutional scrutiny.

Conversely, an SFIO complaint undergoes rigorous two-tier vetting—first by specialized investigators and subsequently by the Ministry of Corporate Affairs (MCA)—before prosecution is sanctioned, thereby carrying a high degree of statutory sanctity that obviates the need for any pre-cognizance hearing.

Finally, the court observed that by its express statutory language, Section 223 of the BNSS is strictly confined to a Court of a Magistrate taking cognizance of an offence on a complaint. In contrast, the serious corporate offences under the Act are directly entertained by a Special Court presided over by a Sessions Judge or an Additional Sessions Judge functioning as a court of first instance without committal proceedings.

The court held that a Sessions-level Special Court cannot be equated with a Magistrate’s Court, and its cognizance procedure is exclusively governed by Section 213 of the BNSS read with Section 436(1)(d) of the Act, which completely excludes the requirement of affording any pre-cognizance opportunity to the proposed accused.

The court observed that the reliance placed by the learned senior counsel for the petitioner on the precedents concerning the Prevention of Money Laundering Act (PMLA) was entirely misplaced. It was noted that the statutory architecture of the PMLA does not contain a legal fiction analogous to Section 212(15) of the Companies Act, 2013, which statutorily equates an investigation report with a police report.

The court clarified that special enactments incorporating the provisions of general criminal law do not imply an inflexible rule that the entirety of Chapter XVI of the BNSS governing complaint cases must apply, as the procedural provisions must invariably be interpreted in alignment with the specific scheme and distinguishing features of the statute in question.

It was observed that mere nomenclature or categorization in the filing registers cannot override the true legal character of the proceedings as determined by the underlying statutory framework. The court explained that the term "complaint in writing" was deliberately employed by the legislature solely to ensure that prosecution is not initiated directly by an investigating officer, but rather under the authority of the Central Government after a formal appreciation of the investigation report, meaning that the matter must substantively proceed as a case instituted on a police report.

The Court held, "The applicability of procedural provisions must always be examined in the context of the statutory scheme of the enactment in question. Under the Act, 2013, Section 212(15), which statutorily treats the SFIO investigation report as a police report, and the extensive nature of investigation by an officer having powers to record statements on oath and having powers of Civil Court for collection of evidence and ensuring full association of the concerned persons with the investigation with a right to get copy of investigation report, all together constitute a significant distinguishing feature. Thus, contrary to the contention of the petitioner, the said provisions materially differentiate prosecutions under the Act, 2013 from proceedings under the PMLA."

Consequently, the court categorically held that prosecution complaints instituted by the SFIO pursuant to an investigation under Section 212 of the Act are completely outside the ambit of the proviso to Section 223 of the BNSS, and the proposed accused possess no vested right to demand a pre-cognizance hearing before the Special Court.

In conclusion, the court held that the impugned order passed by the Additional Sessions Judge did not suffer from any illegality hence the court dismissed the petition.

Cause Title: Vivo India Pvt Ltd. v. Serious Fraud Investigation Office [Neutral Citation: 2026:PHHC:091677]

Appearances:

Petitioner: Senior Advocate R.S. Rai, Advocate V.P. Singh, Advocate Priyank Ladoia, Advocate Rubina Virmani, Advocate Kshitiz Rao, Advocate Arjun Narang, Advocate Puneet Dhanoa, Advocate Ananya Singh

Respondent: Senior Advocate Arvind Moudgil, Senior Prosecutor Pradeep Yadav, Central Government Counsel Tajeshvar Singh Sullar, Advocate Anshuman Singh, Advocate Shubhleen Dhariwal, Advocate Yan Dasi, Advocate Ahana Bali, Advocate Priya, Advocate Puneeta Sethi, Advocate Gautam Bhardwaj

Click here to read/download the Judgment


Justice Subhas MehlaPunjab & Haryana High CourtBNSSCompanies Act 2013

Aastha Kaushik