BNSS S.223(1) Proviso Mandatory; Cognizance Without Hearing Accused Void Ab Initio: Supreme Court

The Supreme Court has held that the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which mandates an opportunity of hearing to the accused before cognizance is taken in a complaint case, is a substantive safeguard flowing from the right to fair trial under Article 21, and non-compliance would render the cognizance order void ab initio. The Court further clarified that an accused need not demonstrate prejudice caused by such non-compliance, as the defect constitutes an illegality that vitiates the proceedings rather than a mere procedural irregularity.

A bench of Justices M.M. Sundresh and N. Kotiswar Singh passed the ruling while allowing an appeal filed by Parvinder Singh against the Directorate of Enforcement in a PMLA case, setting aside the Uttarakhand High Court's judgment as well as the Special Court's order taking cognizance of the Enforcement Directorate's prosecution complaint.

The case arose from an Enforcement Case Information Report (ECIR) registered against the appellant in July 2023. The ED filed its prosecution complaint under Sections 44 and 45 of the Prevention of Money Laundering Act (PMLA) on June 24, 2024. Although the complaint was filed before the BNSS came into force on July 1, 2024, cognizance was taken by the Special Court on July 2, 2024, without hearing the accused.

The appellant challenged the cognizance order, arguing that the first proviso to Section 223(1) BNSS required the Special Court to hear him before taking cognizance. The ED opposed the plea, contending that PMLA is a standalone statute, that the proceedings were governed by the old CrPC since the complaint was filed before BNSS commenced, and that in any event the accused had shown no prejudice from the absence of a hearing.

Rejecting these submissions, the Supreme Court held that the procedural provisions governing complaint cases under the CrPC, now reflected in Sections 223 to 228 of the BNSS, apply to PMLA complaints as there is no inconsistency between those provisions and the PMLA framework.

The Court relied on its earlier decisions in Tarsem Lal v. ED, Yash Tuteja v. Union of India, and Kaushal Kumar Agarwal v. ED to reiterate that once a complaint under Section 44(1)(b) PMLA is filed, the provisions governing complaint procedure under general criminal law apply to proceedings before the Special Court.

Section 223 gives a right to the accused; Violation of it vitiates proceedings

On the nature of the proviso, the bench held that the right to be heard before cognizance is not merely procedural.

The Court emphasized that the use of the word “shall” in the proviso makes compliance mandatory, adding that any cognizance taken without following this requirement would be void from inception.

Though Chapter XVI of the BNSS lays down the procedural law dealing with complaints made to a Magistrate, we hold that the aforesaid proviso is substantive in nature, as it does not merely regulate the manner in which the proceedings are to be conducted, rather it confers a right upon the accused to be heard before taking cognizance which forms a part of the right of an accused to a fair trial enshrined under Article 21 of the Constitution of India, 1950. We further hold that the word “shall” occurring in the said proviso has to be construed to be mandatory in nature, which enures to the benefit of an accused. Resultantly, cognizance of an offence taken by a Court without due compliance of the aforestated proviso would be void ab initio.

On the ED's contention that the accused must establish prejudice, the bench firmly rejected the argument.

Rejects ED's argument that S.223 cannot apply retrosectively to pre-BSS complaints

The Supreme Court also clarified the scope of the BNSS savings clause under Section 531(2)(a), rejecting the ED's contention that the old CrPC would continue to govern the case merely because the prosecution complaint had been filed before the BNSS came into force.

The Court said Section 531(2)(a) is intended to prevent a piecemeal shift between the CrPC and BNSS by ensuring that proceedings already initiated under the old code continue under that framework until conclusion. However, where none of the proceedings contemplated under the savings clause, such as an appeal, inquiry, investigation, or trial, had commenced, an accused would be entitled to substantive rights introduced by the BNSS.

“A substantive right conferred under the BNSS would definitely enure to the benefit of an accused against whom none of the proceedings envisaged under Section 531(2)(a) of the BNSS has been initiated,” the Court held, adding that this was not a case of retrospective or retroactive application of the new law, but a prospective application of a “better right” conferred by the BNSS.

The bench held that merely numbering the ED complaint and posting it for hearing before July 1, 2024 did not amount to commencement of an “inquiry”, since no judicial application of mind had taken place at that stage. Since cognizance was taken only after the BNSS came into force, the accused was entitled to the hearing safeguard under Section 223(1).

While noting that the allegations against the appellant were serious, the Court held that the statutory safeguard could not be bypassed.

Accordingly, the Court set aside the Special Court's cognizance order dated July 2, 2024, and directed the Special Court to proceed afresh from the stage of taking cognizance after granting the appellant an opportunity of hearing, to be completed within eight weeks.