The bench of Justice Abdul Quddhose and Justice Rajnish Pathiyil observed that the term “opportunity of being heard” specified in the first proviso of Section 223 of BNSS is for ensuring a fair trial, enabling an effective cross-examination, and preventing prejudice. The court held that withholding the documents would directly prejudice the case of the accused.

“Therefore, the term “opportunity of being heard” found in the first proviso to Section 223 of BNSS, 2023, makes it clear that the accused has a legal right to be furnished with copies of all documents and statements relied upon by the prosecution at the pre-cognizance stage itself in a PMLA proceeding. The first proviso to Section 223(1) of BNSS (a) ensures a fair trial (b) enables effective cross-examination (c) prevents prejudice ie., withholding documents relied upon by the prosecution creates an unfair opportunity and directly prejudice the case of the accused, which can vitiate the entire proceeding,” the court said.

The court also added that unlike the usual criminal jurisprudence where the accused is presumed to be innocent, in PMLA proceedings the onus is shifted to the accused. In such a situation, the court said that the proviso under Section 223(2) BNSS should be given a purposive interpretation in favour of the accused.

“As seen from the aforesaid Section, unlike standard Indian Criminal jurisprudence, where the prosecution has to prove every element of the offence beyond reasonable doubt, and the accused is presumed innocent, Section 24 of the PMLA shifts the onus to the accused. While that be so, the term “opportunity of being heard” found in the first proviso to Section 223 (1) of BNSS, 2023, has to be given a purposive interpretation in favour of the accused to avoid frivolous, vindictive, foisted and vexatious complaints being filed under the provisions of PMLA,” the court observed.

The court was hearing a petition filed by a man, Anandha Ramakrishnan, against the order of the Principal District and Sessions Judge, Madurai, rejecting his application seeking a direction to the ED to furnish the copies of the documents relied upon.

The petitioner argued that the trial court had erred in not permitting the supply of documents. It was argued that the proviso to Section 223(1) BNSS makes it clear that the documents filed along with the ED's complaint have to be furnished to the petitioner, as the accused must be granted an opportunity of being heard.

The ED, on the other hand, argued that the Supreme Court in the Sarla Gupta Case had held that only at the post-cognizance stage, the accused would have a legal right to receive the copies of relied upon documents from the prosecution.

The court held that if the trial court's order is allowed to sustain, it would lead to travesty of justice as it would defeat the objective of the proviso.

At the same time, the court clarified that the opportunity of hearing granted to the accused should not turn the cognisance stage into a roving inquiry into the merits or demerits of the case.

“The BNSS has added a right of hearing at this stage, but it has not changed the nature of the exercise the Court performs while taking cognizance. In other words, the determination at this stage can only be as to whether there exists a prima facie case and whether judicial notice/cognizance should be taken. The probability of defence cannot be tested at this stage,” the court said.

The court thus quashed the order and directed the ED to furnish copies of all relied upon documents within a period of 4 weeks.

Counsel for Petitioner: Mr. G. Suresh Babu for M/s Sri Law Associates

Counsel for Respondent: Mr. P. Sidharthan Special Public Prosecutor for Directorate of Enforcement Cases