Safiya Malik

The High Court of Patna, Single Bench of Justice Arun Kumar Jha set aside the Special Court’s cognizance order and directed a fresh decision after granting the accused a pre-cognizance hearing, holding that the proviso to Section 223(1) of the BNSS operates as a mandatory safeguard. The Court addressed allegations of laundering assets linked to a public servant, in which the applicant had been arrayed as one of the accused through prosecution complaints under the money-laundering law. It clarified that the hearing required before cognizance cannot be substituted by any participation at the summoning or investigative stages, and that failure to follow this procedure vitiates the cognizance itself.

The matter arose from an ECIR registered by the Enforcement Directorate based on two FIRs alleging that a public official had accumulated disproportionate assets with the assistance of associates. The applicant was not named in the FIRs, the ECIR, or the addendum ECIR. During the investigation, the Enforcement Directorate arrested him and later filed a prosecution complaint, followed by two supplementary prosecution complaints, in which he was arrayed as an accused.

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The Special Court subsequently took cognizance of offences under the Prevention of Money Laundering Act. The applicant challenged this action, asserting that the court proceeded without providing the hearing mandated under the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita. He argued that the prosecution complaints were filed after the BNSS came into force and that the Special Court was required to follow the revised procedure.

The applicant submitted that he had not been afforded any opportunity to be heard before cognizance was taken and that the materials relied upon by the Enforcement Directorate lacked specificity regarding his alleged role. He further relied on judicial precedents interpreting the mandatory nature of the statutory requirement for pre-cognizance hearing.

The Enforcement Directorate contended that any irregularity in the cognizance process did not invalidate the proceedings. It argued that the applicant had already been examined during investigation under statutory powers and that he would have the opportunity to be heard at later procedural stages. The Directorate also submitted that no prejudice had been demonstrated as arising from the absence of a pre-cognizance hearing.

The Court noted that the Enforcement Directorate argued prospective applicability of the Supreme Court decision in Kushal Kumar Agrawal. The Court observed: “The contention raised by the learned special counsel about ratio of Kushal Kumar Agrawal (supra) to be applicable only against prospective cases is strange and against the settled principles of law. If a statute provides for doing something, the same could not be said to be dependent on future interpretation by a constitutional Court. The law is there and it is to be applied in the light of its plain meaning and purport. If the learned trial court did not proceed in the matter giving effect to its true import and subsequently, the Hon'ble Supreme Court dealt with the same provision demonstrating its scope, then the law from the day one is what the Hon'ble Supreme Court said subsequently and not what the trial court meant it to be…”

The Court observed: Therefore, Section 210 of BNSS empowers the Magistrate to take cognizance of any offence under the circumstances enumerated thereunder. Section 506 talks about cases in which cognizance has been taken, but the Magistrate is not empowered by law to do so. But Section 223 of BNSS which has been introduced in BNSS along with its proviso in its new 'Avatar' of corresponding provision under Section 200 of Cr.P.C., has incorporated one of the principles of natural justice which mandates that a Magistrate prior to taking cognizance must hear the other side. If such right is taken away on the ground that not affording an opportunity of hearing is merely an irregularity, the same would amount to acting against the statutory mandate and legislative intent. So, even if the Magistrate would not be empowered to take cognizance in absence of pre-cognizance hearing, the same would not merely be an irregularity.

Rejecting the ED’s argument of irregularity under Section 506(e) BNSS, the Court recorded: “If such right is taken away on the ground that not affording an opportunity of hearing is merely an irregularity, the same would amount to acting against the statutory mandate and legislative intent.”

Regarding the ED’s claim of no prejudice, the Court observed: “I find no merit… that the petitioner failed to demonstrate or show that any prejudice was caused… due to not affording an opportunity of pre-cognizance hearing.”

On the ED’s argument that multiple opportunities during investigation cure the defect, the Court stated: “No amount of prior opportunity could cure such defect.”

The Court also addressed the ED’s reliance on future opportunities at the stage of framing charges: “If the initial proceeding stood vitiated… the subsequent curative measures could not put a cloak of legality on subsequent proceedings.”

The Court summarized its position: “As the complaint has been filed after 01.07.2024… Section 223 of BNSS will apply… no opportunity has been given… before taking cognizance of an offence.”

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The Court stated: “I am of the considered opinion that the impugned order dated 08.01.2025… suffers from infirmity and, hence, the same is set aside.” It further directed: “The matter is remanded to the learned Special Judge, PMLA, Patna for taking decision afresh in accordance with law after hearing the petitioner in terms of Section 223(1) of BNSS within a reasonable time.”

“This Court has interfered with the impugned order merely on infirmity and illegality committed by the learned Special Court. This order shall not be treated to be an order expressing any opinion on the merits of the case.”

Advocates Representing The Parties

For the Petitioners: Mr. Madhav Khurana, Senior Advocate; Mr. Samarth K. Luthra, Advocate; Mr. Harsh Singh, Advocate; Mr. Abhijeet, Advocate.

For the Respondents: Mr. Zoheb Hossain, Special Counsel; Mr. Tuhin Shankar, Retainer Counsel; Mr. Prabhat Kumar Singh, SPP; Mr. Pranjal Tripathi, Advocate; Mr. Vishal Kumar Singh, LC.

Case Title: Pushpraj Bajaj v. Union of India & Another
Case Number: Criminal Revision No. 685 of 2025
Bench: Justice Arun Kumar Jha