Sanchayita Lahkar

The High Court of Punjab and Haryana Single Bench of Justice Tribhuvan Dahiya has stated that the accused must be afforded a right of hearing in terms of Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023, before the court takes cognizance of offences. The court set aside the orders dated 22.11.2024 and 05.12.2024 passed by the Special Judge under the Prevention of Money Laundering Act, 2002 (PMLA), and directed the Special Judge to pass a fresh order after affording an opportunity of hearing to the accused in accordance with the first proviso to Section 223(1) BNSS within eight weeks of receiving the certified copy of this order.

The matter arose from a prosecution complaint filed by the Directorate of Enforcement in connection with ECIR/GNZO/20/2021 dated 16.11.2021, registered under the PMLA. The complaint was presented on 27.06.2024 before the Additional Sessions Judge, Gurugram, designated as the Special Judge under the PMLA. The case was then forwarded to the Sessions Judge for allocation and was listed before the Special Judge on 31.07.2024. Subsequent dates were fixed for consideration, and the hearing was adjourned multiple times. The BNSS came into force on 01.07.2024, and its Section 223 introduced the requirement of granting the accused an opportunity of hearing before cognizance of offences is taken.

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The petitioner filed an application under Section 528 BNSS seeking an opportunity of hearing before the court took cognizance of the offences alleged in the prosecution complaint dated 27.06.2024. The application also sought to set aside the order dated 05.12.2024 by which the Special Judge took cognizance of the offences and summoned the petitioner under Section 3 read with Section 70 of the PMLA, punishable under Section 4.

The Special Judge dismissed the application on 22.11.2024, holding that since the prosecution complaint was filed before the BNSS came into force, the provisions of the Code of Criminal Procedure, 1973 (Cr.P.C.) applied, which did not provide a right of hearing to the accused at the stage of taking cognizance. The court viewed the presentation of the complaint as the commencement of proceedings, thus falling under the saving clause in Section 531(2)(a) BNSS.

The petitioner, through senior counsel, argued that the impugned order was patently wrong as it failed to comply with the mandate of Section 223 BNSS, which required affording a hearing to the accused before taking cognizance. It was submitted that mere presentation of the complaint before 01.07.2024 did not amount to commencement of inquiry under Section 2(g) Cr.P.C., as no judicial mind had been applied to the allegations before the BNSS came into force. The petitioner relied on the Supreme Court judgment in Kushal Kumar Agarwal v. Directorate of Enforcement, where it was held that if cognizance was taken after 01.07.2024, Section 223 BNSS applied.

The respondent’s counsel contended that ECIR is an internal document of the Directorate of Enforcement and not an FIR; hence, no inquiry or proceedings were pending in court before 01.07.2024. Since the prosecution complaint was filed before the BNSS came into force, the Cr.P.C. applied, and there was no right of hearing at the cognizance stage. The counsel further argued that the saving clause under Section 531(2)(a) BNSS preserved the applicability of the Cr.P.C. for cases where the complaint was filed before the new law commenced.

The court examined Section 531(2) BNSS, which saves the applicability of the repealed Cr.P.C. where inquiry or investigation was pending before the BNSS came into force. It also reviewed Sections 200 and 202 Cr.P.C., which outline the procedure for examining the complainant and postponing the issue of process. The court noted that under Section 2(g) Cr.P.C., an inquiry is a proceeding conducted under the Code by a Magistrate or court other than a trial.

The court recorded that "Mere filing/presentation of a complaint, or its registration for being sent to the competent Court for taking cognizance, would not require application of judicial mind." It further stated that "In such cases, Magistrate only performs administrative act of sending the case file to the competent Court on coming to know that the offences are not triable by him/her. This is not application of judicial mind to the allegations in the complaint and will not fall within the ambit of inquiry under Section 2(g) Cr.P.C."

The judgment noted that the "complaint in question was presented before the Additional Sessions Judge on 27.06.2024, who ordered to check and register the same, and sent the file to the competent Court/Special Judge for 04.07.2024." The court found that no arguments on cognizance were advanced before the BNSS came into force, and thus "cognizance of the offences was not taken until after 01.07.2024."

It was observed that "Section 223 BNSS provides a right of hearing to the accused before issuing process against him by the Court, which is not provided under Section 200 Cr.P.C. except the first proviso to latter." The court explained that this procedural change was intended to give an accused a chance to be heard before being summoned, which is "one of the most cherished rights in the criminal jurisprudence, and is embedded in the Principles of Natural Justice permeating to the Constitutional scheme of things, especially Articles 14 and 21 guaranteeing the right to fair trial."

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The court applied the rule of beneficial construction, referring to Supreme Court decisions such as T. Barai v. Henry AH Hoe, to conclude that "When an ex-post facto law can be applied to give the benefit to a person accused of committing an offence under unamended statute by invoking the rule of beneficial construction, it can be applied to the instant case as well."

In its final directions, the court held: "It is accordingly held that the provision of giving prior hearing to the accused before taking cognizance will apply to the prosecution complaint in question, which gives right of hearing in terms of Section 223 BNSS." Consequently, the court stated: "The impugned orders, dated 22.11.2024 and 05.12.2024, are set aside directing the Special Judge under the PMLA to pass a fresh order after affording an opportunity of hearing to the petitioner in terms of first proviso to Section 223(1) BNSS, within a period of eight weeks of receiving a certified copy of this order."

Advocates Representing the Parties:

For the Petitioners: Mr. Vikram Chaudhri, Senior Advocate, assisted by Ms. Hargun Sandhu, Advocate.

For the Respondents: Mr. Zoheb Hussain, Special Counsel, assisted by Mr. Lokesh Narang, Senior Panel Counsel.

Case Title: Sikander Singh v. Directorate of Enforcement

Neutral Citation: 2025: PHHC:094397

Case Number: CRM-M-29954-2025

Bench: Justice Tribhuvan Dahiya