Does S.223 BNSS (Hearing Of Accused Pre-Cognizance) Apply To PMLA Cases If Investigation Began Before July 1, 2024? Supreme Court To Decide

The Supreme Court remarked that Section 223 (Examination of complainant) of the Bharatiya Nagarik Suraksha Sanhita, 2023, which provides that the accused must be given an opportunity to be heard before Magistrate takes cognizance of a complaint, is a beneficial provision to prevent unnecessary prosecutions.

Section 223 of the BNSS mandates that the Magistrate must examine the complainant and witnesses on oath. The first proviso states that no cognizance shall be taken without giving the accused an opportunity to be heard.

Section 223 of BNSS replaces Section 200 of Code of Criminal Procedure, 1973, which did not mandate giving the accused an opportunity to be heard before cognizance was taken.

“This is actually a very salutary provision to avoid unnecessary prosecutions”, Justice Abhay Oka said.

A bench of Justice Abhay S Oka and Justice Ujjal Bhuyan was hearing a petition filed by a company and its executive Kushal Aggarwal against a trial court order that took cognizance of a money laundering complaint arising out of a conviction for obtaining Kesla North Coal Block in Chhattisgarh by cheating.

The trial court had taken cognizance of the complaint by the Directorate of Enforcement and issued summons holding that Section 223 of the BNSS would not apply as the investigation began before the BNSS came into force on 1 July 2024. It also noted that the complaint was filed by a public servant in discharge of official duty and held that the right to a hearing at the cognizance stage was not available under the PMLA scheme.

During the hearing, both the Supreme Court judges emphasised that Section 223 of BNSS confers a substantive right on the accused and not merely procedural. “It's a very substantial right conferred to apply for recall of process. It can't be procedural”, Justice Oka said.

Justice Oka remarked that Section 223 of the BNSS would apply in this case. He explained that Section 223 confers a right on the accused to apply for recall of process after it is issued.

“This is a salutary provision under the new CrPC (Section 223 BNSS) where after process is issued, person gets right to apply for recall”, Justice Oka said.

Additional Solicitor General SV Raju submitted that the central issue before the Court was whether the BNSS or the CrPC would govern the proceedings. Justice Oka said that the Court will consider this issue, and the trial court proceedings will have to be stayed in the meantime.

When Raju submitted that applying Section 223 of the BNSS would result in unnecessary delays and that this was not the legislative intent, Justice Oka responded that that was the legislation now, adding, “legislature should have thought about this consequence.”

Raju further submitted that the BNSS does not apply to complaints under the Prevention of Money Laundering Act (PMLA), 2002 due to the special procedure under that Act.

However, Justice Oka responded, “That is also decided now, that provisions of CrPC will apply. We will grant you time, this matter requires a decision.”

Last year, in the Tarsem Lal v. ED judgment, the Court held that sections 200 to 205 of the CrPC, which governed the process for a Magistrate to take cognizance of an offence based on a complaint, are applicable on money laundering complaint under section 44(1)(b) of PMLA.

“And once this court has taken a view that section 200 to 204 (of CrPC) will apply, this (Section 223 of BNSS) should apply”, Justice Oka said.

The Supreme Court issued notice returnable on 9 May 2025 and stayed further proceedings in the complaint against the petitioner until further orders.

Case no. – Petition for Special Leave to Appeal (Crl.) No. 2766/2025

Case Title – Kushal Kumar Agarwal v. Directorate of Enforcement