No Cognizance Without Hearing | Delhi HC Quashes ED Complaint Proceedings Under Section 223 BNSS
Isabella Mariam
The High Court of Delhi Single Bench of Justice Ravinder Dudeja allowed a petition challenging the dismissal of an application seeking an opportunity to be heard before cognizance of a prosecution complaint filed under the Prevention of Money Laundering Act, 2002. The Court set aside the trial court's order and directed that cognizance could not be taken without first affording the accused such an opportunity in accordance with Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The Bench ordered the trial court to grant the petitioner an opportunity to be heard before proceeding further.
The petition was filed under Section 528 of the BNSS, 2023, assailing the order dated 4 January 2025 of the Additional Sessions Judge, Central, Rouse Avenue Courts, Delhi, in a case arising out of ECIR No. DLZO-I/50/2023 under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002. Following the filing of a prosecution complaint dated 19 September 2024, the petitioner had applied for a pre-cognizance hearing under the proviso to Section 223 BNSS. This application was rejected by the trial court. The petitioner argued that Section 223 BNSS applies to prosecution complaints under the PMLA and that the complaint in question was filed after the BNSS came into force on 1 July 2024.
Counsel for the petitioner submitted that the Ministry of Home Affairs notification dated 23 February 2024 brought the BNSS into force on 1 July 2024, and the prosecution complaint was filed thereafter. It was contended that the BNSS provisions, rather than the Criminal Procedure Code, 1973, should apply. The petitioner stated that the prosecution complaint is not a final report under Section 193(3) BNSS but falls within the ambit of Section 223 BNSS. It was further submitted that the saving clause under Section 531 BNSS applies only to matters pending as of 1 July 2024, not to fresh complaints filed after that date. The arrest and remand of the petitioner also occurred after 1 July 2024.
On behalf of the Directorate of Enforcement, the special counsel submitted that the applicability of the Supreme Court's judgment in Kushal Kumar Agarwal v. ED, 2025 SCC OnLine SC 1221, was not in dispute. It was stated that since the complaint was filed after 1 July 2024, the petition could be disposed of in terms of that judgment. However, it was requested that any pending bail application filed by the petitioner be considered on its own merits.
The Court recorded that the prosecution complaint in the present case was filed on 19 September 2024, after the BNSS came into effect. The Supreme Court in Yash Tuteja v. Union of India, 2024 SCC OnLine SC 533, and Tarsem Lal v. Enforcement Directorate, (2024) 7 SCC 61, had held that a complaint under Section 44(1)(b) of the PMLA is governed by Sections 200 to 204 of the CrPC, and by extension Section 223 BNSS for complaints filed after 1 July 2024.
The Court observed: "Section 223 provides an added safeguard that no cognizance shall be taken without affording the accused an opportunity of being heard." Referring to Kushal Kumar Agarwal (supra), the Court noted: "The proviso to sub-section (1) of Section 223 puts an embargo on the power of the Court to take cognizance by providing that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard."
It further recorded: "In this case, admittedly, an opportunity of being heard was not given by the learned Special Judge to the appellant before taking cognizance of the offence on the complaint. Only on that ground, the impugned order dated 20th April, 2024, will have to be set aside."
Quoting from the Supreme Court decision, the Court noted: "The impugned order dated 20th November, 2024, is set aside only on the ground of non-compliance with the proviso to sub-section (1) of Section 223 of the BNSS."
The Bench held that the issue in the present petition was identical to that decided in Kushal Kumar Agarwal and that the ratio therein applied. It stated that since the complaint was filed after 1 July 2024, "cognizance cannot be taken without conferring an opportunity of hearing to the accused."
The Court set aside the order dated 4 January 2025 passed by the Special Judge, which had dismissed the petitioner's application under Section 223 BNSS. The Court directed: "Trial Court is directed to afford the petitioner an opportunity to be heard before taking cognizance in terms of the proviso to Section 223 BNSS, 2023 and to proceed thereafter in accordance with law."
It further clarified: "However, it is clarified that bail applications, if any, moved by the petitioners in the trial court shall be decided on its own merits." The petition and any pending applications were disposed of accordingly.
Advocates Representing the Parties:
For the Petitioners: Mr. Vikas Pahwa, Senior Advocate with Mr. Prabhav Ralli, Ms. Sanskriti Shakuntala Gupta, Mr. Dev Vrat Arya, Ms. Deeya Mittal, Mr. Samraat Saxena, Advocates.
For the Respondents: Mr. Zoheb Hossain, Special Counsel for ED with Mr. Vivek Gurnani, Panel Counsel, Mr. Kartik Sabharwal, Mr. Pranjal Tripathi, Mr. Kanishk Maurya, Advocates.
Case Title: Lakshay Vij v. Directorate of Enforcement through its Director
Case Number: CRL.M.C. 246/2025 & CRL.M.A. 1253/2025, CRL.M.A. 1254/2025
Bench: Justice Ravinder Dudeja
