Madras High Court sets aside ED cognizance order for denying accused a pre-cognizance hearing under BNSS

The Directorate of Enforcement filed a complaint dated 11 March 2024, which was registered as Spl. C.C. No. 17 of 2024 before the XIII Additional Sessions Judge, Chennai.

The trial court took cognizance of the complaint on 18 October 2024 without issuing notice or providing an opportunity of hearing to the petitioner.

The Enforcement Directorate argued that the ECIR had been registered before the BNSS came into force on 1 July 2024 and that the proceedings were therefore governed by the repealed Code of Criminal Procedure, 1973, by virtue of Section 531 BNSS.

Whether the proviso to Section 223(1) BNSS, requiring an accused to be given an opportunity of hearing before cognizance is taken, applies to an Enforcement Directorate complaint filed after 1 July 2024, even where the underlying ECIR was registered before that date?

Whether the trial court’s order dated 18 October 2024 taking cognizance without issuing notice to the petitioner was legally sustainable?

The Court applied Section 223(1) BNSS, particularly its proviso, which expressly prohibits a Magistrate from taking cognizance of an offence on complaint without giving the accused an opportunity of being heard.

Section 223 BNSS corresponds substantially to Section 200 of the Code of Criminal Procedure, 1973, but introduces the additional requirement of prior hearing.

Relying on Kushal Kumar Agarwal v. Directorate of Enforcement, 2025 SCC OnLine SC 1221, and the earlier decisions in Yash Tuteja v. Union of India, 2024 SCC OnLine SC 533 and Tarsem Lal v. Enforcement Directorate, (2024) 7 SCC 61, the Court held that complaints filed by the Enforcement Directorate under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 are governed by the procedural provisions concerning complaints, including Sections 223–226 BNSS, where the complaint is filed after 1 July 2024.

The Court also noted that the contrary authorities relied upon by the Enforcement Directorate either involved different factual circumstances or had been set aside or stayed.

The decisive date was the date of filing of the complaint, not the date of registration of the ECIR.

Since the complaint was filed on 11 March 2024, the trial court’s order was actually prior to 1 July 2024—however, the judgment expressly records the complaint as filed after the BNSS’s commencement in applying the Supreme Court’s principle, creating an apparent chronological inconsistency in the record.

On the legal premise adopted by the Court, a post-1 July 2024 complaint attracted Section 223(1) BNSS, and the trial court was therefore required to provide the petitioner an opportunity of hearing before taking cognizance.

Because no notice was issued, the cognizance order was contrary to the mandatory statutory proviso and the binding rule in Kushal Kumar Agarwal.

It accordingly set aside the cognizance order, restored the complaint to its original file, and directed the trial court to proceed in accordance with law.

The Criminal Original Petition was partly allowed.