Full Judgment Text
2025 INSC 760
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2749 OF 2025
(Arising out of S.L.P.(Criminal) No.2766 of 2025)
KUSHAL KUMAR AGARWAL ... APPELLANT(S)
VS.
DIRECTORATE OF ENFORCEMENT ... RESPONDENT(S)
ORDER
ABAHY S OKA,J
Leave granted.
Heard the learned counsel appearing for the
appellant and the learned Additional Solicitor General
appearing for the respondent.
In the present case, a complaint was filed under
Section 44(1)(b) of the Prevention of Money Laundering
Act, 2002 (hereinafter referred to as "the PMLA") on
August 2, 2024. The appellant is shown as accused in the
complaint. The Bhartiya Nagarik Suraksha Sanhita, 2023
(hereinafter referred to as "the BNSS") came into force
on July 1, 2024. Section 223 of the BNSS reads thus:
“223. Examination of complainant.
(1) A Magistrate having jurisdiction while
Signature Not Verified
taking cognizance of an offence on complaint
Digitally signed by
ANITA MALHOTRA
Date: 2025.05.26
11:12:38 IST
Reason:
shall examine upon oath the complainant and the
witnesses present, if any, and the substance of
1
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
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.”
Section 223 of the BNSS corresponds to Section 200
of the Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘the CrPC’). However, a proviso similar
to the proviso to sub-section (1) of Section 223 does not
find place in Section 200 of the CrPC.
This Court has taken a consistent view that a
complaint filed by the Enforcement Directorate under
Section 44 (1)(b) of the PMLA will be governed by
Sections 200 to 204 of the CrPC. This view has been taken
by this Court in the cases of Yash Tuteja v/s Union of
2
1
India and others and Tarsem Lal v/s Enforcement
2
Directorate . Therefore, the provisions of Chapter XVI,
containing Sections 223 to 226, will also apply to a
complaint under Section 44 of the PMLA. As the complaint
st
has been filed after 1 July, 2024, Section 223 of the
BNSS will apply to the present complaint.
The proviso to sub-section (1) of Section 223 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.
In this case, admittedly, an opportunity of being
heard was not given by the learned Special Judge to the
appellant before taking cognizance of the offence on the
complaint. Only on that ground, the impugned order dated
th
20 April, 2024, will have to be set aside.
Mr. Raju, the learned Additional Solicitor General,
has made two submissions. Firstly, he submits that
hearing given to the accused in terms of the proviso to
sub-section (1) of Section 223 of the BNSS will be
confined to the question whether a case is made out to
proceed on the basis of the complaint and hence, only the
complaint and the documents produced along with the
complaint can be considered at the time of hearing. His
1 2024 SCC OnLine Sc 533
2 (2024)7SCC 61
3
second submission is that it is well settled that
cognizance is taken by the criminal Court of the offence
and not the offender. Therefore, after taking cognizance
and after following the procedure prescribed by proviso
to sub-section (1) of Section 223 of the BNSS if
cognizance is taken, there will be no occasion to again
take cognizance of the same offence when supplementary or
further complaints are filed. Therefore, at that stage,
there will be no occasion to give the accused the
opportunity to be heard.
The aforesaid two submissions made by Mr. Raju, the
learned Additional Solicitor General, need not be
considered, as the same do not arise in this appeal at
this stage. However, we make it clear that the said
contentions are expressly kept open, which can be raised
before the Special Court.
th
The impugned order dated 20 November, 2024, is set
aside only on the ground of non-compliance with the
proviso to sub-section (1) of Section 223 of the BNSS.
We make it clear that we have not expressed any
opinion on the merits of the complaint and the aforesaid
contentions raised by the learned Additional Solicitor
General.
4
We direct the appellant to appear before the Special
th
Court on 14 July, 2025, so that he can be given an
opportunity of being heard in terms of the proviso to
sub-section (1) of Section 223 of the BNSS. We make it
clear that no further notice shall be issued by the
Special Court to the appellant.
The appeal is accordingly partly allowed.
..........................J.
(ABHAY S.OKA)
..........................J.
(UJJAL BHUYAN)
NEW DELHI;
May 09, 2025
5
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2749 OF 2025
(Arising out of S.L.P.(Criminal) No.2766 of 2025)
KUSHAL KUMAR AGARWAL ... APPELLANT(S)
VS.
DIRECTORATE OF ENFORCEMENT ... RESPONDENT(S)
ORDER
ABAHY S OKA,J
Leave granted.
Heard the learned counsel appearing for the
appellant and the learned Additional Solicitor General
appearing for the respondent.
In the present case, a complaint was filed under
Section 44(1)(b) of the Prevention of Money Laundering
Act, 2002 (hereinafter referred to as "the PMLA") on
August 2, 2024. The appellant is shown as accused in the
complaint. The Bhartiya Nagarik Suraksha Sanhita, 2023
(hereinafter referred to as "the BNSS") came into force
on July 1, 2024. Section 223 of the BNSS reads thus:
“223. Examination of complainant.
(1) A Magistrate having jurisdiction while
Signature Not Verified
taking cognizance of an offence on complaint
Digitally signed by
ANITA MALHOTRA
Date: 2025.05.26
11:12:38 IST
Reason:
shall examine upon oath the complainant and the
witnesses present, if any, and the substance of
1
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
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.”
Section 223 of the BNSS corresponds to Section 200
of the Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘the CrPC’). However, a proviso similar
to the proviso to sub-section (1) of Section 223 does not
find place in Section 200 of the CrPC.
This Court has taken a consistent view that a
complaint filed by the Enforcement Directorate under
Section 44 (1)(b) of the PMLA will be governed by
Sections 200 to 204 of the CrPC. This view has been taken
by this Court in the cases of Yash Tuteja v/s Union of
2
1
India and others and Tarsem Lal v/s Enforcement
2
Directorate . Therefore, the provisions of Chapter XVI,
containing Sections 223 to 226, will also apply to a
complaint under Section 44 of the PMLA. As the complaint
st
has been filed after 1 July, 2024, Section 223 of the
BNSS will apply to the present complaint.
The proviso to sub-section (1) of Section 223 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.
In this case, admittedly, an opportunity of being
heard was not given by the learned Special Judge to the
appellant before taking cognizance of the offence on the
complaint. Only on that ground, the impugned order dated
th
20 April, 2024, will have to be set aside.
Mr. Raju, the learned Additional Solicitor General,
has made two submissions. Firstly, he submits that
hearing given to the accused in terms of the proviso to
sub-section (1) of Section 223 of the BNSS will be
confined to the question whether a case is made out to
proceed on the basis of the complaint and hence, only the
complaint and the documents produced along with the
complaint can be considered at the time of hearing. His
1 2024 SCC OnLine Sc 533
2 (2024)7SCC 61
3
second submission is that it is well settled that
cognizance is taken by the criminal Court of the offence
and not the offender. Therefore, after taking cognizance
and after following the procedure prescribed by proviso
to sub-section (1) of Section 223 of the BNSS if
cognizance is taken, there will be no occasion to again
take cognizance of the same offence when supplementary or
further complaints are filed. Therefore, at that stage,
there will be no occasion to give the accused the
opportunity to be heard.
The aforesaid two submissions made by Mr. Raju, the
learned Additional Solicitor General, need not be
considered, as the same do not arise in this appeal at
this stage. However, we make it clear that the said
contentions are expressly kept open, which can be raised
before the Special Court.
th
The impugned order dated 20 November, 2024, is set
aside only on the ground of non-compliance with the
proviso to sub-section (1) of Section 223 of the BNSS.
We make it clear that we have not expressed any
opinion on the merits of the complaint and the aforesaid
contentions raised by the learned Additional Solicitor
General.
4
We direct the appellant to appear before the Special
th
Court on 14 July, 2025, so that he can be given an
opportunity of being heard in terms of the proviso to
sub-section (1) of Section 223 of the BNSS. We make it
clear that no further notice shall be issued by the
Special Court to the appellant.
The appeal is accordingly partly allowed.
..........................J.
(ABHAY S.OKA)
..........................J.
(UJJAL BHUYAN)
NEW DELHI;
May 09, 2025
5