Pre-Cognizance Hearing Must Be Given To Accused Even If PMLA Complaint Was Filed Before BNSS Came Into Force: Supreme Court
The Bench held that non-compliance with first proviso to Section 223(1) BNSS vitiates cognizance order; right to hearing before cognizance is substantive and mandatory.
Justice M.M. Sundresh, Justice N. Kotishwar Singh , Supreme Court of India
The Supreme Court has held that the accused must be given an opportunity of hearing under the first proviso to Section 223(1) BNSS, even if the prosecution complaint itself had been filed prior to July 1, 2024. The Court clarified that failure to provide such hearing renders the cognizance order void ab initio.
Furthermore, it held that the proviso to Section 223(1) BNSS confers a substantive right upon the accused and forms part of the guarantee of fair trial under Article 21 of the Constitution of India. The Bench further ruled that mere ministerial acts, such as numbering a complaint and posting it for cognizance, do not amount to an “inquiry” under Section 2(1)(k) BNSS so as to attract the saving clause under Section 531(2)(a) BNSS.
A Bench comprising Justice M. M. Sundresh and Justice Nongmeikapam Kotiswar Singh observed, “Though Chapter XVI of the BNSS lays down the procedural law dealing with complaints made to a Magistrate, we hold that the aforesaid proviso is substantive in nature, as it does not merely regulate the manner in which the proceedings are to be conducted, rather it confers a right upon the accused to be 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, 1950. We further hold that the word ‘shall’ occurring in the said proviso has to be construed to be mandatory in nature, which enures to the benefit of an accused. Resultantly, cognizance of an offence taken by a Court without due compliance of the aforestated proviso would be void ab initio”.
Senior Advocate Sidharth Aggarwal appeared for the appellant and Suryaprakash V. Raju, A.S.G appeared for the respondent.
As pe the factual matrix, the appeal arose from proceedings initiated by the Directorate of Enforcement against Parvinder Singh under the PMLA. An ECIR was registered on July 24, 2023 and the appellant was arrested on April 27, 2024.
The Enforcement Directorate filed a prosecution complaint before the Special Court on June 24, 2024. On that date, the Special Court directed the complaint to be registered and posted it for hearing on cognizance. Cognizance was ultimately taken on July 2, 2024, after the BNSS had come into force on July 1, 2024.
The appellant challenged the cognizance order on the ground that he had not been granted an opportunity of hearing before cognizance as mandated under the first proviso to Section 223(1) BNSS. However, the Special Court dismissed the recall application and framed charges.
The Uttarakhand High Court subsequently upheld the cognizance order, holding that proceedings initiated prior to the commencement of BNSS would continue under CrPC by virtue of Section 531(2)(a) BNSS.
Before the Supreme Court, the Enforcement Directorate argued that the PMLA is a special enactment and that Chapters XIV to XVII of BNSS would not apply to PMLA proceedings. It was further contended that an inquiry had already commenced before July 1, 2024 and therefore the CrPC would continue to govern the proceedings.
Rejecting the submission, the Court held that Sections 223 to 228 BNSS, corresponding to Sections 200 to 205 CrPC, apply to PMLA complaints because there is no inconsistency between those provisions and the PMLA framework.
Placing reliance upon earlier decisions in Tarsem Lal v. ED (2024) 7 SCC 61, Yash Tuteja v. Union of India (2024) 8 SCC 465, and Kushal Kumar Agarwal v. Directorate of Enforcement 2025 SCC OnLine SC 1221, the Bench reaffirmed that Special Courts under PMLA are bound to follow the complaint procedure contemplated under the criminal procedure code.
Distinguishing between judicial and ministerial acts, it further observed, “A mere ministerial act cannot be termed as an “inquiry” under Section 2(1)(k) of the BNSS. Taking cognizance is nothing but an application of judicial mind. So long as the application of the judicial mind is not exercised, an inquiry cannot commence. It is the judicial notice of an offence by the Court which is relevant. While doing so, it is presumed that the Court would take note of the complaint along with the materials placed before it”.
Accordingly, the Court set aside both the Uttarakhand High Court judgment and the Special Court’s cognizance order dated July 2, 2024. The Special Court was directed to proceed afresh from the stage of cognizance after granting the appellant an opportunity of hearing under Section 223(1) BNSS, within eight weeks.
Cause Title: Parvinder Singh v. Directorate Of Enforcement (Neutral Citation: 2026 INSC 519)
Appearances:
Appellant: Sidharth Aggarwal, Sr. Adv., Ayush Kaushik, Shubhangni Jain, Sahil Dhingra, Karan Dhalla, Abhay Pratap Singh, AOR, Advocates.
Respondent: Suryaprakash V. Raju, A.S.G., Zoheb Hussain, Annam Venkatesh, Samrat Goswami, Hitarth Raja, Arvind Kumar Sharma, AOR, Pranjal Tripathi, Shaurya Sarin, Chinmay Panigrahi, Agrimaa Singh, Aryansh Shukla, Sai Shashank, Rohan Wadhwa, Vittal B, Ayush Anand, AOR Monu Kumar, Advocates.