Accused Must Be Heard Before Taking Cognizance Under BNSS Despite Proceedings Initiated Under CrPC

The Directorate of Enforcement (ED) registered an ECIR against the appellant on 24.07.2023, leading to his arrest on 27.04.2024

A prosecution complaint under Sections 44 and 45 of the PMLA was filed on 24.06.2024, and the Special Court fixed it for cognizance

On 01.07.2024, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced the CrPC

On 02.07.2024, the Special Court took cognizance of the offences without hearing the appellant

The appellant’s application to recall the cognizance order for non-compliance with the first proviso to Section 223(1) of the BNSS was dismissed by the Special Court

The High Court of Uttarakhand upheld the cognizance, ruling that under Section 531(2)(a) of the BNSS, the proceedings should continue under the CrPC as the complaint was filed before the BNSS commenced

1. Whether the first proviso to Section 223(1) of the BNSS, which mandates hearing the accused before taking cognizance, applies to PMLA proceedings initiated before the BNSS came into force but where cognizance was taken after its commencement

2. Whether the act of filing a complaint and fixing a date for cognizance constitutes an "inquiry" under Section 2(1)(k) so as to attract the savings clause of Section 531(2)(a) of the BNSS

The Court applied Section 223(1) of the BNSS, specifically the first proviso, which prohibits taking cognizance of an offence on a complaint without giving the accused an opportunity of being heard

It relied on Sections 44, 46, and 65 of the PMLA to establish that the procedural framework of the CrPC/BNSS applies to PMLA trials unless inconsistent

The Court reinforced precedents from Tarsem Lal v. ED [p.19], Yash Tuteja v. Union of India [p.20], and Kushal Kumar Agarwal v. ED [p.21], holding that Sections 200–205 of the CrPC (now Sections 223–228 of the BNSS) govern PMLA complaints.

It further applied the definition of "inquiry" under Section 2(1)(k) of the BNSS and the savings clause under Section 531(2)(a), which protects pending proceedings initiated under the old Code

The Court reasoned that the first proviso to Section 223(1) of the BNSS is "substantive in nature" as it confers a right to be heard linked to the fair trial guarantees of Article 21 of the Constitution

It rejected the respondent's argument that Section 531(2)(a) of the BNSS mandated the application of the old CrPC, clarifying that a "ministerial act" like numbering a complaint or scheduling a hearing does not equate to a "judicial application of mind" required for an "inquiry"

Citing Hardeep Singh v. State of Punjab, the Court held that since judicial mind had not been applied to the facts before 01.07.2024, no "inquiry" was pending

Consequently, since cognizance was taken on 02.07.2024, the mandatory requirement of the BNSS to hear the accused applied prospectively

The Court emphasized that PMLA is not so "stand-alone" as to exclude these fundamental procedural protections, as there is no inconsistency between the PMLA's silence on cognizance procedures and the BNSS's explicit mandate

It set aside the High Court’s judgment dated 19.05.2025 and the Special Court’s cognizance order dated 02.07.2024. The Special Court was directed to afford the appellant an opportunity of hearing and decide the issue of cognizance afresh within eight weeks. The appeal was allowed.