Madras HC Sets Aside Cognizance In Post-BNSS ED Case Against Tyre Firm After Accused Were Not Heard Beforehand

The petitioners sought to quash proceedings in Spl.C.C. No. 14 of 2025, challenging the Special Court’s order dated 7 October 2025 taking cognizance of the Enforcement Directorate’s complaint without first giving them an opportunity to be heard under the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The Enforcement Directorate argued that, because the ECIR had been registered before the BNSS came into force on 1 July 2024, Section 531 of the BNSS preserved the application of the Code of Criminal Procedure, 1973 (CrPC).

Section 223(1) of the BNSS bars a Magistrate from taking cognizance of an offence on complaint without giving the accused an opportunity to be heard; this hearing requirement is distinct from the requirement to examine the complainant and witnesses, from which the statute provides exceptions.

The Supreme Court in Kushal Kumar Agarwal v. Directorate of Enforcement, 2025 SCC OnLine SC 1221, held that complaints under Section 44 of the Prevention of Money Laundering Act, 2002 (PMLA) are governed by the complaint-procedure provisions in Sections 200–204 of the CrPC and, for complaints filed after 1 July 2024, by the corresponding provisions in Chapter XVI of the BNSS, including Section 223.

The Court also referred to Yash Tuteja v. Union of India, 2024 SCC OnLine SC 533, and Tarsem Lal v. Enforcement Directorate, (2024) 7 SCC 61, as supporting the application of the complaint procedure to PMLA complaints.

The Court treated the relevant date as the filing of the complaint, not the earlier registration of the ECIR.

It relied on Kushal Kumar Agarwal for the proposition that Section 223 of the BNSS applied to a PMLA complaint filed after 1 July 2024 and that its hearing proviso restricted the court’s power to take cognizance without hearing the accused.

The Court found the respondent’s authorities distinguishable; it noted that the Uttarakhand High Court decision in Parvinder Singh had been set aside by the Supreme Court and that the decision in G. Ganesan was under challenge.

Accordingly, the pre-BNSS registration of the ECIR did not justify taking cognizance without complying with Section 223(1).

It set aside the 7 October 2025 cognizance order, restored the complaint to its original file, and directed the court concerned to proceed in accordance with law.

The Criminal Original Petition was partly allowed; the connected miscellaneous petitions were closed.