Pre-Cognisance Hearing U/S 223 BNSS Is Mandatory Safeguard, Failure To Comply Vitiates Process: Patna High Court
The Patna High Court recently held that the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is mandatory, emphasizing that a pre-cognizance hearing constitutes an essential procedural safeguard for the accused. The Court further observed that any opportunity granted to the accused during the summoning stage cannot cure the defect arising from non-compliance with...
The Patna High Court recently held that the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is mandatory, emphasizing that a pre-cognizance hearing constitutes an essential procedural safeguard for the accused. The Court further observed that any opportunity granted to the accused during the summoning stage cannot cure the defect arising from non-compliance with this requirement.
A Single Judge Bench comprising Justice Arun Kumar Jha was hearing a criminal revision petition challenging an order of the Special PMLA Court that had taken cognizance against the petitioner under Sections 3 and 4 of the Prevention of Money Laundering Act, without giving him an opportunity of being heard.
Background:
The petitioner relied on two main arguments. First, that the Supreme Court's decision in Kushal Kumar Agrawal v. Directorate of Enforcement, which held that an accused must be heard before cognizance is taken under the PMLA, had retrospective effect. Therefore, cognizance taken prior to that decision would also be rendered invalid if a hearing was not provided to the accused. Second, that Section 223 of the BNSS mandates an opportunity of hearing to the accused before cognizance is taken, and such hearing is mandatory.
The High Court agreed with the petitioner on both counts. On the first point, regarding the applicability of Kushal Kumar Agrawal, the High Court held:
41. The contention raised by the learned special counsel about ratio of Kushal Kumar Agrawal (supra) to be applicable only against prospective cases is strange and against the settled principles of law. If a statute provides for doing something, the same could not be said to be dependent on future interpretation by a constitutional Court. The law is there and it is to be applied in the light of its plain meaning and purport. If the learned trial court did not proceed in the matter giving effect to its true import and subsequently, the Hon'ble Supreme Court dealt with the same provision demonstrating its scope, then the law from the day one is what the Hon'ble Supreme Court said subsequently and not what the trial court meant it to be…
On the second point, the High Court rejected the contention of the Enforcement Directorate that not affording an opportunity of hearing to the accused is merely a procedural irregularity under Section 506(e) of the BNSS. The Court held that Section 223 of the BNSS is a new “avatar” of Section 200 of the CrPC and observed:
“46. Therefore, Section 210 of BNSS empowers the Magistrate to take cognizance of any offence under the circumstances enumerated thereunder. Section 506 talks about cases in which cognizance has been taken, but the Magistrate is not empowered by law to do so. But Section 223 of BNSS which has been introduced in BNSS along with its proviso in its new 'Avatar' of corresponding provision under Section 200 of Cr.P.C., has incorporated one of the principles of natural justice which mandates that a Magistrate prior to taking cognizance must hear the other side. If such right is taken away on the ground that not affording an opportunity of hearing is merely an irregularity, the same would amount to acting against the statutory mandate and legislative intent. So, even if the Magistrate would not be empowered to take cognizance in absence of pre-cognizance hearing, the same would not merely be an irregularity.
The Court also held that the fact that the petitioner had been summoned and examined under Section 50 of the PMLA, confronted with relevant material, and afforded an opportunity to explain his position, was irrelevant. Section 223 recognises a pre-cognizance hearing, and “no amount of prior opportunity could cure such a defect.”
Eventually, the High Court set aside the cognizance order and remanded the matter to the trial court to decide afresh in accordance with Section 223(1) of the BNSS after hearing the petitioner.
Case Title: Pushpraj Bajaj v. Union of India
Case No. Criminal Revision No. 685 of 2025
Appearance: Senior Advocate Mr. Madhav Khurana, along with Mr. Samarth K. Luthra, Mr. Harsh Singh, and Mr. Abhijeet, appeared for the Petitioner. Mr. Zoheb Hossain, Mr. Tuhin Shankar, Mr. Prabhat Kumar Singh, Mr. Pranjal Tripathi, and Mr. Vishal Kumar Singh appeared for the Respondent.