The Punjab and Haryana High Court has held that the requirement of obtaining a factual report from a public servant's superior officer under Section 223(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, cannot be dispensed with merely because sanction for prosecution has been granted.

The Court clarified that before taking cognizance of an Enforcement Directorate (ED) complaint under the Prevention of Money Laundering Act, 2002, against a public servant, the Special Court must comply with the safeguards under Section 223(2) BNSS.

These include giving the public servant an opportunity to make assertions regarding the circumstances leading to the alleged offence and obtaining a factual report from an officer superior to him.

The two requirements are mandatory and independent of the sanction for prosecution.

Justice Sumeet Goel quashed the cognizance and summoning order passed by the Special Judge (PMLA), Gurugram, against a former Chief General Manager (Finance) of NHPC. In doing so, the Court set out the following postulates:

"As a sequitur to prevenient rumination, the following postulates emerge: (I) By virtue of Section 4(2) BNSS, read alongside Sections 46 and 65 of the PMLA, the procedure governing Criminal complaints provided for under Chapter XVI of the BNSS, including Section 223(2) BNSS, applies ex proprio vigore to prosecution complaint(s) filed before the Special Court under Section 44(1)(b) PMLA.

(II) The statutory safeguards provided under Section 223(2) of BNSS; requiring the Court to afford the proposed accused public servant an opportunity to make assertions & to obtain a factual report from his/her superior officer before taking cognizance; are mandatory, condition-precedent and any order taking cognizance or issuing process without compliance thereof is jurisdictionally invalid, void-ab-initio and non-est in the eyes of the law.

(III) The grant of sanction for prosecution under Section 218 BNSS (erstwhile Section 197 Cr.P.C.), does not dispense with, subsume or satisfy the distinct statutory requirement of calling for and receiving a factual report from the superior officer in terms of Section 223(2)(b) BNSS.

The Court further added, "(IV) To prevent inordinate delay and ensure that judicial proceedings are not rendered subservient to administrative inertia, it is ordained thus:

a. Every superior officer from whom a factual report is sought under Section 223(2)(b) of BNSS, shall furnish the same to the court concerned within a strict period of thirty (30) days from the date of receipt of the court's order.

b. The court concerned may, in its discretion, extend this period by a maximum of fifteen (15) additional days, provided the superior officer shows sufficient and compelling cause for the inability to submit the report within the initial thirty-day period.

c. In case of failure or neglect on part of such Superior Officer to submit the report within the stipulated or extended period, the court shall be fully empowered to initiate appropriate action(s), including penal and coercive measure(s), against such erring superior officer in accordance with law."

In April 2023, the CBI registered an FIR against the petitioner and his wife under Section 13(2) read with Section 13(1)(b) of the Prevention of Corruption Act, 1988, and Section 109 IPC. The ED registered an ECIR in November 2023 and filed a prosecution complaint on March 10, 2025. The ED's case is that the petitioner and his wife acquired assets of about Rs. 1.04 crore, around 112% of his known income, which the agency treated as proceeds of crime.

On April 23, 2026, the Special Judge took cognizance of the offence under Section 3 of the PMLA, punishable under Section 4, and summoned both accused. The petitioner argued that the Special Court had taken cognizance without calling for the superior officer's report under Section 223(2)(b), in breach of a mandatory safeguard.

The ED, represented by Additional Solicitor General Satya Pal Jain, made the following submissions, NHPC's Chairman and Managing Director granted sanction on February 21, 2025, after examining the ED's findings, and the sanction order was before the Special Court.

Section 223(2)(b) stood “substantially satisfied” because the sanctioning authority had examined the investigation material. The petitioner had explained himself in statements recorded under Section 50 of the PMLA in March 2024 and February 2025, and was heard by the Special Court before cognizance.

Relying on Tarsem Lal v. ED, Yash Tuteja v. Union of India and Kaushal Kumar Aggarwal v. ED, the Court held that the PMLA departs from general criminal procedure only where it expressly provides otherwise, and the BNSS complaint procedure governs everywhere else. It also relied on the Supreme Court's decision in Parvinder Singh v. ED (SLP (Crl.) No. 12055 of 2025, decided on May 19, 2026). That decision held that the pre-cognizance hearing under the first proviso to Section 223(1) is substantive in nature. Justice Goel noted that Parvinder Singh itself arose out of a PMLA prosecution.

Sanction and report are different safeguards

The Court distinguished the two on several counts.  Section 218 protects only public servants who cannot be removed from office except by or with the sanction of the Government. Section 223(2) extends to every public servant.

Section 218 covers acts done “in the discharge of official duty”. Section 223(2) uses the wider phrase “official functions or duties”. On this point, the Court relied on decisions of the Kerala High Court (Suhyb P.J.), the Andhra Pradesh High Court (K. Manasa) and the Gujarat High Court (Rajdipsingh Narsinh Nakum).

"In stark contrast, Section 223(2) BNSS employs a much broader statutory protection, extending its protection to complaints against all the individuals falling within the definition of a “public servant” as provided for in Section 2(28) of the BNS, irrespective of their designation, rank or the mode of their removal from service/office. Ergo, interpreting the two as interchangeable would result in an impermissible anomaly for public servants who fall outside the purview of Section 218 BNSS yet remain protected under Section 223(2) BNSS," the judge observed.

The Court described the two as “independent, non-overlapping” protections, both of which must be given full effect. Referring to the Parliamentary Standing Committee's 247th Report and the principle ut res magis valeat quam pereat (a provision should be read so that it takes effect rather than fails), it held that treating sanction as sufficient would render Section 223(2)(b) redundant.

"Furthermore, the impact of these dual safeguards on the judicial discretion to be exercised by the Magistrate or the Court concerned, further underscores their independent, non-overlapping existence," the Court added.

It explained that, under Section 218 BNSS, the jurisdiction of the Court is entirely contingent upon prior sanction, in the absence of which judicial proceedings remain dormant. However, under Section 223(2)(b) of BNSS, the Magistrate/Court is merely required to receive and consider the report of the superior officer prior to taking cognizance.

The Magistrate/Court is in no way bound by the findings, opinions, or conclusions contained in such a report, retaining unfettered judicial discretion to independently evaluate the record and determine whether taking cognizance is warranted in law, the bench added.

The Court noted that while Section 223(2) requires the report before cognizance, it suffers from “a conspicuous legislative omission”: it sets no time limit for the report. The Court acknowledged that setting procedural time limits is ordinarily for the legislature.

However, it held that procedural gaps cannot be allowed to subvert the administration of justice or the right to a speedy trial. It quoted Justice Benjamin Cardozo's observation, which the Supreme Court approved in Anoop Baranwal v. Union of India, that a judge “legislates only between gaps”, and invoked its inherent powers under Section 528 BNSS to lay down interim guidelines pending legislative intervention.

Relying on Yeshwant Deorao v. Walchand Ramchand, the Court rejected the ED's objection. It held that a pure question of law going to jurisdiction, which can be decided on undisputed facts, can be raised for the first time under Section 528 BNSS. Here, the record itself showed that no report had been called for, and the case was still at the pre-trial stage.

On the facts, the Court found that the petitioner, admittedly a public servant, had been heard before cognizance, but no report had been sought from his superior officer.

The Court quashed the order dated April 23, 2026 and directed the Special Judge (PMLA), Gurugram, to pass a fresh order in accordance with law after complying with Section 223(2)(b) BNSS. The Court clarified that its observations shall not affect the merits of the case.