R. Anandha Ramakrishnan vs The Assistant Director
- Court
- Madras High Court
2026:MHC:4462
CRL OP(MD) No. 21716 of 2026
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 02-11-2026
Delivered on : 05-11-2026
CORAM
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
AND
THE HON'BLE MR.JUSTICE RAJNISH PATHIYIL
CRL OP(MD) No. 21716 of 2026
CNR:{HCMD011324602026}
and CRL.MP.(MD).No.20609 of 2026
R. Anandha Ramakrishnan
S/o.Shri.Anitha R.Radhakrishnan,
Plot No.17,
Ayyanar Main Street,
Guru Nagar,
Thiruppalai,
Madurai Rural-625 014.
..Petitioner(s)
Vs
The Assistant Director
Directorate of Enforcement,
Chennai Zone-II,
Chennai.
..Respondent(s)
PRAYER: This Petition filed under section 528 of BNSS to call for the
records relating to the impugned order in Crl.MP.No.3212 of 2026 in
unnumbered CC.No.--/2026 in ECIR/CEZO-II/21/2020, (SR.No.1320 of
2025) dated 31.08.2026 passed by the learned Principal District and
Sessions Judge, Madurai and quash the same insofar as the petitioner is
concerned.
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For Petitioner(s) Mr.G.Suresh Babu
for M/s. Sri Law Associates
For Respondent(s) Mr.P.Sidharthan
Special Public Prosecutor for
Directorate of Enforcement Cases
ORDER
(Order of the Court was made by ABDUL QUDDHOSE J.)
The issue that arises for consideration in this Criminal Original
Petition filed under Section 528 of the BNSS is whether the Enforcement
Directorate is liable to furnish copies of the relied-upon documents to the
accused (petitioner) in the pre-cognizance stage.
2. In the impugned order, the request of the petitioner, who is the
fourth accused, seeking for a direction to the Enforcement Directorate to
furnish copies of the relied-upon documents, was rejected by the trial
Court, by relying upon the judgment of the Hon’ble Supreme Court in the
case of Sarla Gupta and Another Vs. Directorate of Enforcement
reported in (2025) 7 SCC 626.
3. According to the learned counsel appearing for the petitioner, the
trial Court has committed an error in rejecting the petitioner’s request.
According to him, in the decision referred to supra, the Hon’ble Supreme
Court was not dealing with the first proviso to Section 223(1) of the
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BNSS. According to the learned counsel appearing for the petitioner, the
said proviso makes it clear that the documents filed along with the
complaint by the Enforcement Directorate will have to be furnished to the
petitioner, since the said proviso makes it clear that the accused must be
granted an opportunity of being heard before the Court takes cognizance
of the complaint filed by the Enforcement Directorate.
4. We find that the facts involved in the decision relied upon by the
trial Court for rejecting the petitioner’s application are different. In the
said decision, the offence under the PMLA, 2002, had taken place prior to
the coming into force of BNSS, and the first proviso to Section 223 (1)
was not the subject matter of consideration by the Hon’ble Supreme
Court in the case of Sarla Gupta and another referred to supra.
5. The learned counsel appearing for the petitioner drew the
attention of this Court to the decision rendered by the Allahabad High
Court in the case of Supreme Technofabs Private Limited Vs.
Directorate of Enforcement and Anil Kumar Khemka Vs. Directorate of
Enforcement U.P. reported in Manu / UP / 0358 / 2026 and would
submit that, in identical facts, involving an accused seeking furnishing
copies of the documents filed along with the complaint by the
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Enforcement Directorate, the Allahabad High Court, while interpreting
the term “opportunity of being heard” found in the first proviso to Section
223(1) of the BNSS, held that the term “opportunity of being heard” shall
include furnishing copies of the relied-upon documents to the accused.
6. The learned counsel appearing for the petitioner would submit
that erroneously, the trial Court had disregarded the decision of the
Allahabad High Court, which clearly applies to the facts of the instant
case. The learned counsel appearing for the petitioner would also submit
that in similar PMLA cases, involving the case of Manthiramoorthy in
ECIR NO.ECIR / MDSZO / 21 / 2020 and in the case of M.R.Ganesh in
ECIR / CEZO-II/13/2023, the Enforcement Directorate did not raise any
objection and had furnished copies of the documents to the accused in the
pre-cognizance stage. Therefore, he would submit that there cannot be
discrimination between the accused in PMLA proceedings by the
Enforcement Directorate. He would therefore submit that, as a matter of
legal right, the petitioner is entitled to receive copies of the documents
relied upon filed by the Enforcement Directorate in this case as well.
7. The learned counsel appearing for the petitioner also drew the
attention of this Court to the Division Bench Judgment of the Delhi High
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Court in the case of Rita Bakshi Vs. Seema Bajaj and Others and Anita
Rani Mehra and Others Vs. Neena Kapoor reported in
Manu/DE/7404/2026 and would submit that, in the aforesaid decision,
the stand of the Union of India has been recorded by the Division Bench,
wherein, the Union of India had categorically stated that an accused is
entitled to receive the copies of the relied upon documents for a
meaningful hearing at the pre-cognizance stage itself.
8. The learned counsel appearing for the petitioner would also rely
upon a judgment of the learned Single Judge of this Court in the case of
Seeman Vs. Varun Kumar reported in 2025 SCC Online Mad 11445 and
would submit that it has been made clear by the learned Single Judge
while interpreting the first proviso to Section 223(1) of the BNSS that it
is mandatory for the prosecution to furnish the copies of the relied-upon
documents to the accused at the pre-cognizance stage itself.
9. On the other hand, the learned Special Public Prosecutor
appearing for the respondent would submit as follows:
a. The decision of the Hon’ble Supreme Court in Sarla Gupta Case,
referred to supra, clearly applies to the facts of the instant case. He
would submit that it has been made clear in Sarla Gupta case by the
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Hon’ble Supreme Court that only in the post cognizance stage, the legal
right is vested with the accused to receive copies of the relied-upon
documents from the prosecution in a PMLA case.
b. The decision of the Madhya Pradesh High Court in the case of
Vinay Prakash Singh @ Deepu Singh Vs. Pushpendra Singh @ Dimple
Singh and Others reported in MCRC-17776-2026 dated 08.05.2026 has
made the legal position clear. As seen from Paragraph No.6 of the said
judgment, there is no vested right given to the accused to receive copies
of the relied-upon documents. It has also been made clear in the said
decision that the first proviso to Section 223(1) of the BNSS is intended
to ensure that the accused is heard before cognizance is taken. However,
such opportunity does not automatically translate into an obligation to
supply the entire evidence at the threshold stage. If the request of the
petitioner has to be necessarily accepted, the petitioner will have the
opportunity to receive documents both in the pre-cognizance stage as
well as in the post-cognizance stage, which is not the intention of
legislature.
10. The learned Special Public Prosecutor for the respondent would
submit that in the Madhya Pradesh High Court decision, since the
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Madhya Pradesh High Court had taken into consideration the first proviso
to Section 223(1) of the BNSS which is relied upon by the petitioner, the
ratio laid down by the Madhya Pradesh High Court, in the said decision is
squarely applicable and therefore, the petitioner is not entitled to receive
copies of the relied-upon documents at the pre-cognizance stage. He
would submit that the Trial Court has rightly rejected the petitioner’s
request.
11. The learned Special Public Prosecutor for the respondent would
also submit that the documents furnished by the Enforcement Directorate
to the accused in two other cases cited by the petitioner cannot be relied
upon by the petitioner, since in both these cases the question that arises
for consideration in this petition was not considered by the trial Court.
He would submit that, initially, the Enforcement Directorate had raised
objection for furnishing copies of the relied upon documents in those
cases as well. But only thereafter, the copies were furnished to the
accused therein in the pre-cognizance stage. He would also submit that
the accused in those cases withdrew their applications seeking for a
direction from the trial court for furnishing copies of the relied-upon
documents at the pre-cognizance stage and only thereafter, the
Enforcement Directorate had furnished the copies of those documents to
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the accused. On the other hand, the learned counsel appearing for the
petitioner would submit that only on the assurance given by the
Enforcement Directorate that they will furnish the copies of the relied -
upon documents, the accused in those cases withdrew their applications
and only thereafter, the documents were furnished to the accused.
12. The learned Special Public Prosecutor would also submit that
the decision of the learned Single Judge of this Court in the case of
Seeman Vs. Varun Kumar reported in 2025 SCC Online Mad 11445
does not apply to the facts of the instant case, as, he would submit that
said decision did not deal with a PMLA case but dealt with a private
complaint under CrPC for offence under the IPC.
Discussion:
13. The decision in this petition depends upon the interpretation of
the term “opportunity of being heard” as found in the first proviso to
Section 223(1) of BNSS, 2023. Section 223 (1) of BNSS, 2023 reads as
follow:
“ Section 223 - Examination of complainant.
223. (1) A Magistrate having jurisdiction while
taking cognizance of an offence on complaint shall
examine upon oath the complainant and the witnesses
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present, if any, and the substance of such examination
shall be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the
Magistrate:
Provided that no cognizance of an offence under
this section shall be taken by the Magistrate without
giving the accused an opportunity of being heard:
Provided further that, when the complaint is made
in writing, the Magistrate need not examine the
complainant and the witnesses—
(a) if a public servant acting or purporting to act in
the discharge of his official duties or a Court has made
the complaint; or
(b) if the Magistrate makes over the case for inquiry
or trial to another Magistrate under section 212:
Provided also that if the Magistrate makes over the
case to another Magistrate under section 212 after
examining the complainant and the witnesses, the latter
Magistrate need not re-examine them.”
[Emphasis supplied]
14. By relying upon the judgment of the Hon’ble Supreme Court in
Sarla Gupta’s case, the trial Court under the impugned order rejected the
petitioner’s request for furnishing copies of the relied upon documents by
the prosecution on the ground that the petitioner is not entitled for
receiving copies of the documents relied upon by the prosecution during
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the pre-cognizance stage but they are entitled to receive documents only
after the trial Court takes cognizance of the complaint. The first proviso
to Section 223(1) of BNSS, 2023 was introduced under BNSS, 2023 and
is in significant variance with Section 200 of the CrPC, 1973, pertaining
to examination of complainant by the Magistrate for the purpose of taking
cognizance of any complaint. As seen from Sarla Gupta’s judgment
referred to supra, as well as from various other judgments, it is settled law
that the Section 223 of BNSS, 2023 would also apply to PMLA
proceedings. The first proviso to Section 223(1) of BNSS, 2023, has been
introduced in BNSS, 2023, to avoid frivolous and vexatious criminal
complaints from being taken cognizance by criminal courts. Only with
that objective, the accused is granted an opportunity of being heard by the
Magistrate at the pre-cognizance stage itself.
15. Section 223 BNSS applies even to pre-BNSS PMLA
complaints, where cognizance is taken post-BNSS. In Parvinder Singh
Vs. Directorate of Enforcement reported in 2026 INSC 519, the Hon’ble
Supreme Court clarified the scope and effect of the first proviso to
Section 223(1) of BNSS, 2023, holding that an accused must be afforded
an opportunity of hearing before cognizance is taken on a complaint and
that non-compliance with such requirement renders the proceedings void
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ab initio, even in money laundering matters. The case arose out of
proceedings under the Prevention of Money Laundering Act, 2002, where
a complaint had been filed by the Enforcement Directorate before the
Special Court prior to the commencement of the BNSS. However,
cognizance of the complaint was taken after the BNSS came into force
and without granting an opportunity of hearing to the accused. The
principal question before the Hon’ble Supreme Court was whether the
first proviso to Section 223 (1) of the BNSS, which mandates that no
cognizance of an offence shall be taken on a complaint without giving the
accused an opportunity of being heard, would apply to such proceedings
and whether failure to comply with the requirement would invalidate the
order taking cognizance.
16. The Hon’ble Supreme Court in Parvinder Singh’s case,
referred to supra, examined the interplay between the procedural
framework under the BNSS and proceedings under the PMLA.
Reaffirming earlier decisions of the Hon’ble Supreme Court including
Tarsem Lal Vs. Enforcement Directorate reported in (2024) 7 SCC 61,
Yash Tuteja Vs. Union of India reported in (2024) 8 SCC 465 and
Kaushal Kumar Agarwal Vs. Directorate of Enforcement reported in
(2025) SCC Online SC 1221, the Hon’ble Supreme Court held that once
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a complaint under Section 44(1)(b) of the PMLA is filed, the procedural
provisions governing complaint cases under the CrPC / BNSS continue to
apply, unless specifically included by the special enactment. Accordingly,
the Hon’ble Supreme Court held that Sections 223 to 228 of the BNSS
apply to proceedings under the PMLA and there being no inconsistency
between the two enactments, the safeguard introduced under Section
223(1) must be given full effect.
17. In Parvinder Singh’s case, referred to supra, the Hon’ble
Supreme Court also held that the first proviso to Section 223(1) of the
BNSS confers a substantive right upon the accused and is an extension of
the constitutional guarantee of fair trial under Article 21 of the
Constitution of India. The Hon’ble Supreme Court further observed that
the use of the word ‘shall’ in the first proviso to Section 223 (1) to BNSS
leaves no discretion with the Court and makes the compliance mandatory.
The Hon’ble Supreme Court while emphasizing the consequences of non-
compliance has categorically held in Parvinder Singh’s case that
cognizance of an offence in a PMLA proceeding taken by a Court
without due compliance of the first proviso to Section 223(1) of BNSS
would be void ab initio. Therefore, it is clear that denial of hearing at the
stage of cognizance is not a curable procedural irregularity but an
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illegality that goes to the root of the jurisdiction. The significant aspect of
Parvinder Singh’s judgment is that the Supreme Court clarified
regarding the applicability of BNSS to complaints instituted before
01.07.2024, when BNSS came into force, but in which cognizance was
taken subsequently. The Hon’ble Supreme Court clarified that substantive
procedural safeguards introduced under BNSS would continue to apply
where judicial proceedings had not reached the stage of inquiry before
commencement of the new law.
18. It is also to be noted that the learned Special Public Prosecutor
for the Enforcement Directorate, on instructions did not dispute the fact
that in similar PMLA cases, involving the case of Manthiramoorthy in
ECIR NO.ECIR / MDSZO / 21 / 2020 and in the case of M.R.Ganesh in
ECIR / CEZO-II/13/2023, the Enforcement Directorate had furnished the
copies of the relied upon documents to the accused in the pre-cognizance
stage and to make a departure in the present case does not stand scrutiny.
In another decision of a learned Single Judge of this Court, relied upon by
the learned Counsel for the petitioner, in the case of Seeman Vs. Varun
Kumar reported in 2025 SCC Online Madras 11445, it was also held by
the learned Single Judge, while interpreting the first proviso to Section
223 of BNSS, that it is mandatory for the prosecution to furnish copies of
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the relied upon documents to the accused in the pre-cognizance stage
itself. Though the learned Single Judge in the aforesaid decision was not
dealing with a PMLA proceeding, the said decision applies to PMLA
proceeding as well as the Hon’ble Supreme Court has settled the issue by
holding that the first proviso to Section 223 of the BNSS also applies to
PMLA proceedings. The decision of a learned Single Judge of the
Madhya Pradesh High Court in the case of Vinay Prakash Singh @
Deepu Singh Vs. Pushpendra Singh @ Dimple Singh and Others
reported in MCRC-17776-2026, dated 08.05.2026, relied upon by the
learned Special Public Prosecutor appearing for the Enforcement
Directorate is per incuriam, in view of the law laid down by the Hon’ble
Supreme Court in Parvinder Singh’s case and Sarla Gupta’s case.
Further, the decision of the learned Single Judge of the Madhya Pradesh
High Court referred to supra, is not binding on this Court and further, we
do not agree with the view taken by the Madhya Pradesh High Court in
the aforesaid decision.
19. Under the principles of natural justice, specifically, the doctrine
of Audi alterum partem (hear the other side), any hearing cannot be
considered fair, meaningful or reasonable unless the defending party
knows the exact case they have to meet. The scope of the A udi alterum
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partem principle encompasses several core legal concepts. An
opportunity of hearing is not a mere empty formality. For it to be legally
valid, the deciding authority must disclose all relevant evidence and
documents intended to be used against the defending party. The
defending party must be given a meaningful opportunity to rebut that
specific evidence. If they do not possess the documents, an effective
rebuttal or cross-examination is impossible. In criminal matters and
statutory complaints such as under the BNSS or the provisions of PMLA,
the accused has a constitutional and legal right to access all material
evidence intended for use against them, including the complaint, witness
statements and electronic evidence.
20. The Sarla Gupta decision rendered by the Hon’ble Supreme
Court referred to supra was dealing with an offence under the PMLA at
the post-cognizance stage. It was also dealing with a prosecution under
the PMLA when BNSS, 2023 was not legislated and when the repealed
Criminal Procedure Code, 1973 was in force. The said fact is also not
disputed by the learned Special Public Prosecutor appearing for the
respondent during the course of his arguments. In Sarla Gupta’s case,
rendered by the Hon’ble Supreme Court referred to supra, the Hon’ble
Supreme Court directed the enforcement Directorate to furnish copies of
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the documents to the accused, even if those documents are not relied
upon documents by the prosecution in a PMLA proceeding, if it aids the
defence of the accused.
21. The Supreme Court in Sarla Gupta’s case has held that
procedural fairness in PMLA cases cannot be compromised by virtue of
the statute’s special status. The Supreme Court held that the special
nature of the statute makes it all the more important to ensure that the
accused person receives a fair trial and an adequate opportunity to defend
themselves. The Supreme Court held that the accused at the post-
cognizance stage in proceedings under the PMLA is entitled to receive
true and legible copies of all documents accompanying the prosecution
complaint filed by the Enforcement Directorate and of all records or
instruments seized from their custody under Sections 17 & 18 of the
PMLA, regardless of whether the Enforcement Directorate relies upon
them or not. The Hon’ble Supreme Court came to the aforesaid decision
only after recognizing the reverse burden imposed on the accused under
Section 24 of the PMLA, 2002 and the constitutional guarantee of a fair
trial under Article 21 of the Constitution of India. Section 24 of the
PMLA, 2002 is reproduced hereunder:
“Section 24 – Burden of Proof. —In any proceeding
relating to proceeds of crime under this Act,—
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(a) in the case of a person charged with the offence of
money-laundering under section 3, the Authority or Court
shall, unless the contrary is proved, presume that such
proceeds of crime are involved in money-laundering; and
(b) in the case of any other person the Authority or
Court, may presume that such proceeds of crime are
involved in money-laundering”
22. As seen from the aforesaid Section, unlike standard Indian
Criminal jurisprudence, where the prosecution has to prove every element
of the offence beyond reasonable doubt, and the accused is presumed
innocent, Section 24 of the PMLA shifts the onus to the accused. While
that be so, the term “opportunity of being heard” found in the first
proviso to Section 223 (1) of BNSS, 2023, has to be given a purposive
interpretation in favour of the accused to avoid frivolous, vindictive,
foisted and vexatious complaints being filed under the provisions of
PMLA. Eventhough, the Sarla Gupta’s case rendered by the Hon’ble
Supreme Court was dealing with a situation in a post-cognizance stage,
the principle laid down in the said decision with regard to furnishing of
relied / not relied documents will have to be applied to a situation where
the accused at the pre-cognizance stage is requesting for copies of the
documents relied upon by the prosecution in support of the prosecution as
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the Hon’ble Supreme Court in Sarla Gupta’s case has made it clear that
procedural fairness in PMLA cases cannot be refused by virtue of the
statute’s special status. In fact, the special nature of the statute which
recognises the reverse burden imposed on the accused under Section 24
of the PMLA and the constitutional guarantee of the fair trial under
Article 21 of the Constitution, makes it all the more important to ensure
that the accused persons receive a fair trial and they are given an adequate
opportunity to defend themselves in the prosecution launched by the
Enforcement Directorate.
23. The judgment relied upon by the Hon’ble Supreme Court in
Sarla Gupta’s case seamlessly harmonises CrPC with the PMLA. The
Supreme Court reiterates Section 65 of the PMLA does not merely
permit, but in fact mandates the application of CrPC provisions to PMLA
proceedings unless the conflict is demonstrated. Section 65 of the PMLA,
2002, is reproduced hereunder:
“Section 65. Code of Criminal Procedure, 1973 to
apply. — The provisions of the Code of Criminal
Procedure, 1973 (2 of 1974) shall apply, in so far as they
are not inconsistent with the provisions of this Act, to
arrest, search and seizure, attachment, confiscation
investigation, prosecution and all other proceedings under
this Act.”
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24. The Supreme Court in Sarla Gupta’s case has also imported
the provisions such as Sections 204, 233 and 243 CrPC into the PMLA
framework – not as an afterthought, but as a primary mechanism by
which fairness is preserved. The incorporation of sessions trial provisions
at the post–cognizance stage by the Supreme Court reinforces this
position, establishing that the CrPC continues to operate as the procedural
back bone of PMLA trials.
25. The term “opportunity of being heard” found in the first
proviso to Section 223 (1) of BNSS, 2023, which applies to pre-
cognizance stage should not become an empty formality by not legally
entitling the accused to be furnished with copies of the documents relied
upon by the prosecution under the PMLA, 2002. This is the reason, the
Allahabad High Court ruled in Supreme Technofabs Private Limited Vs.
Directorate of Enforcement and Anil Kumar Khemka Vs. Directorate of
Enforcement U.P., in its decision dated 03.04.2026 reported in Manu /
UP / 0358 / 2026, that an accused in Prevention of Money Laundering
Act [PMLA proceedings] has a legal right to be furnished with copies of
documents and statements, including pre-cognizance records. The
Allahabad High Court held that the first proviso to Section 223 of BNSS
mandates pre-cognizance opportunity of hearing for the accused, which
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enables the accused to receive the relied upon documents by the
prosecution in the pre-cognizance stage itself.
26. Therefore, the term “opportunity of being heard” found in the
first proviso to Section 223 of BNSS, 2023, makes it clear that the
accused has a legal right to be furnished with copies of all documents and
statements relied upon by the prosecution at the pre-cognizance stage
itself in a PMLA proceeding. The first proviso to Section 223(1) of BNSS
(a) ensures a fair trial (b) enables effective cross-examination (c) prevents
prejudice ie., withholding documents relied upon by the prosecution
creates an unfair opportunity and directly prejudice the case of the
accused, which can vitiate the entire proceeding.
27. Under the impugned order, passed by the learned Principal
Sessions Judge, Madurai, the Court had misconstrued Sarla Gupta’s case
rendered by the Hon’ble Supreme Court, which was not dealing with
furnishing of documents to the accused in a PMLA proceeding at the pre-
cognizance stage but was dealing with furnishing of documents to the
accused at the post-cognizance stage. In Sarla Gupta’s case, the Hon’ble
Supreme Court never held that the accused in a PMLA proceeding is not
entitled to be furnished with copies of documents relied upon by the
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Enforcement Directorate in the pre-cognizance stage. The trial court has
also erroneously not followed the decision of the Allahabad High Court
in Supreme Technofabs Private Limited Vs. Directorate of Enforcement
and Anil Kumar Khemka Vs. Directorate of Enforcement U.P. reported
in Manu / UP / 0358 / 2026, as the Allahabad High Court has correctly
held that the accused in a PMLA proceeding is entitled to receive the
relied upon documents by the prosecution even in the pre-cognizance
stage. The ratio laid down by the Allahabad High Court judgment in
Supreme Technofabs Private Limited’s case is only in accordance with
the principles laid down by the Hon’ble Supreme Court in Sarla Gupta’s
case, Parvinder Singh’s case and other decisions reflected in this order.
28. If the impugned order of the Trial Court is allowed to be
sustained, it will lead to travesty of justice, as it will defeat the objective
of the first proviso to Section 223 of the BNSS which makes it clear that
the “opportunity of hearing” to be provided to the accused should not be a
mere empty formality.
29. The first proviso to Section 223(1) of BNSS has introduced a
revolutionary pre-cognizance hearing for the accused, reshaping the
intersection of anti money laundering litigation and constitutional law.
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The Hon’ble Supreme Court has changed the dynamic of PMLA
prosecutions by ruling that the pre-cognizance hearing under Section 223
(1) BNSS applies by its own force to prosecution complaints filed by the
Enforcement Directorate. It has been formally established that any
cognizance taken by the Special Court under the PMLA without
providing the mandatory hearing to the accused is void ab initio and
jurisdictionally invalid.
30.
We deem it appropriate to clarify the nature of the hearing
contemplated under the first proviso to Section 223(1) of the BNSS. The
opportunity provided to the accused at the pre-cognizance stage is not
meant to turn the stage of cognizance into a roving inquiry into the merits
or demerits of the case. The BNSS has added a right of hearing at this
stage, but it has not changed the nature of the exercise the Court performs
while taking cognizance. In other words, the determination at this stage
can only be as to whether there exists a prima facie case and whether
judicial notice/cognizance should be taken. The probability of defence
cannot be tested at this stage. The Hon’ble Supreme Court, in Sonu
Gupta v. Deepak Gupta and Others , reported in (2015) 3 SCC 424 , held
as follows:
“8. … At the stage of cognizance and summoning the Magistrate is
required to apply his judicial mind only with a view to take cognizance
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of the offence, or, in other words, to find out whether prima facie case
has been made out for summoning the accused persons. At this stage,
the learned Magistrate is not required to consider the defence version
or materials or arguments nor he is required to evaluate the merits of
the materials or evidence of the complainant, because the Magistrate
must not undertake the exercise to find out at this stage whether the
materials would lead to conviction or not.”
31. The first proviso to Section 223(1) of the BNSS has not altered
this settled position. It only enables the accused to point out, before
cognizance is taken, that the complaint does not disclose the ingredients
of the offence alleged, or if there is a legal bar to proceed with it. The
right to be heard is a shield for the accused. It is not a sword with which
he may dissect the prosecution’s case or project his defence at the
threshold. The accused cannot, at this stage, put forward his defence,
produce documents in support of it, or call upon the Court to weigh the
evidence of the prosecution. In State of Orissa v. Debendra Nath Padhi,
reported in (2005) 1 SCC 568 , the Hon’ble Supreme Court held that the
accused has no right to produce any material even at the stage of framing
of charge. The accused certainly cannot do so at the earlier stage of
taking cognizance. Therefore, when the Court hears the petitioner after
the documents are supplied, it shall confine itself to the question whether
the complaint and the relied-upon documents disclose a prima facie case
under Section 3 of the PMLA. It shall not embark upon an evaluation of
the merits of the case.
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32. For the foregoing reasons, the Principal Sessions Court,
Madurai has committed a grave error in the impugned order dated
31.08.2026 passed in Crl.M.P.No.3212 of 2026, by dismissing the
Miscellaneous Petition filed by the petitioner to direct the Enforcement
Directorate to furnish copies of all relied upon documents to him as under
the first proviso to Section 223(1) of BNSS, the petitioner has a statutory
right to receive the relied upon documents in the pre-cognizance stage
itself.
33. In the result, the impugned order dated 31.08.2026 passed in
Crl.M.P.No.3212 of 2026 in un-numbered C.C.----/2026, passed by the
Principal District and Sessions Judge, Madurai, is hereby quashed and
this Criminal Original Petition is allowed, by directing the respondent to
furnish copies of all the relied upon documents in un-numbered
C.C.----/2026 to the petitioner within a period of four [4] weeks from the
date of receipt of a copy of this order. Consequently, the connected
miscellaneous petition is closed.
(A.Q.,J.) (R.P.L.,J.)
05-11-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
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To
1. The Assistant Director
Directorate of Enforcement
Chennai Zone-II
Chennai
2. The Additional Public Prosecutor
Madurai Bench of Madras High Court
Madurai
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ABDUL QUDDHOSE, J.
AND
RAJNISH PATHIYIL, J.
MR
PRE-DELIVERY ORDER MADE IN
CRL OP(MD) No. 21716 of 2026
05-11-2026
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