Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Section 223(1), First Proviso & Article 21 of the Constitution of India — Opportunity of being heard before taking cognizance — Mandatory and substantive nature: The first proviso to Section 223(1) of the BNSS bars a Magistrate/Special Court from taking cognizance of an offence on a complaint without giving the accused an opportunity of being heard. Held, this proviso is not merely procedural; it confers a substantive right on the accused forming an integral part of the right to a fair trial under Article 21 of the Constitution. The word "shall" is mandatory. Failure to afford a hearing before taking cognizance is an incurable illegality (not a mere irregularity) that renders the cognizance order void ab initio. Prejudice need not be separately established by the accused. (Paras 26, 27, 37, 38)

  Parvinder Singh vs Enforcement Of Directorate on 19 May, 2026 - 2026 INSC 519

HEADNOTES

• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Section 223(1), First Proviso & Article 21 of the Constitution of India — Opportunity of being heard before taking cognizance — Mandatory and substantive nature:
  The first proviso to Section 223(1) of the BNSS bars a Magistrate/Special Court from taking cognizance of an offence on a complaint without giving the accused an opportunity of being heard. Held, this proviso is not merely procedural; it confers a substantive right on the accused forming an integral part of the right to a fair trial under Article 21 of the Constitution. The word "shall" is mandatory. Failure to afford a hearing before taking cognizance is an incurable illegality (not a mere irregularity) that renders the cognizance order void ab initio. Prejudice need not be separately established by the accused.
  
  
  (Paras 26, 27, 37, 38)
  
  
• Prevention of Money Laundering Act, 2002 (PMLA) — Sections 43, 44(1)(b), 44(1)(d), 46, 65 & 71 read with BNSS Sections 223 to 228 (CrPC Sections 200 to 205) — Applicability of general complaint procedure to PMLA Special Courts:
  Sections 223 to 228 of the BNSS (formerly Sections 200 to 205 of the CrPC) are not inconsistent with the scheme of the PMLA and apply to complaints instituted by the Enforcement Directorate under Section 44(1)(b). The Special Court, deemed to be a Court of Session, possesses powers to dismiss a complaint, postpone process, issue summons/warrants, or dispense with personal appearance under these provisions. Consequently, the mandatory pre-cognizance hearing requirement under the first proviso to Section 223(1) of the BNSS fully applies to prosecution complaints filed under the PMLA. Tarsem Lal v. ED, (2024) 7 SCC 61; Yash Tuteja v. Union of India, (2024) 8 SCC 465; and Kushal Kumar Agarwal v. ED, 2025 SCC OnLine SC 1221, followed and reaffirmed.
  
  
  (Paras 14–19, 30–33)
  
  
• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Section 2(1)(k) & Section 531(2)(a) — Definition of "Inquiry" and Repeal/Savings clause — Ministerial vs. Judicial acts:
  Under Section 2(1)(k) of the BNSS, an "inquiry" requires an active application of judicial mind by a Magistrate or Court. Mere ministerial or administrative acts—such as receiving a prosecution complaint, directing it to be numbered/registered as a miscellaneous case, or fixing a future date for consideration—do not constitute the commencement of an "inquiry". Where a complaint is filed under the CrPC before 01.07.2024, but judicial mind for taking cognizance is applied on or after 01.07.2024, no inquiry was "pending" immediately before the BNSS came into force. Therefore, Section 531(2)(a) of the BNSS does not save the erstwhile CrPC procedure, and the new mandate of Section 223(1) of the BNSS applies prospectively to the cognizance stage. Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, discussed and relied upon.
  
  
  (Paras 10, 21, 28, 29, 34–36)
  
  

RATIO DECIDENDI

1. Mandatory Pre-Cognizance Hearing: Compliance with the first proviso to Section 223(1) of the BNSS is an absolute statutory and constitutional prerequisite. Taking cognizance on a complaint without affording the accused an opportunity of being heard is an incurable illegality rendering the order void ab initio.
   
   
2. Harmonization of PMLA and BNSS: Sections 223 to 228 of the BNSS govern complaints under Section 44(1)(b) of the PMLA as they are not inconsistent with PMLA provisions (Sections 46, 65, and 71 of the PMLA).
   
   
3. Scope of Section 531(2)(a) Savings: For the savings clause under Section 531(2)(a) of the BNSS to preserve the old CrPC regime, an "inquiry" must have actually commenced through a conscious judicial act prior to 01.07.2024. Routine administrative registration and listing do not trigger an inquiry; hence, any cognizance considered after 01.07.2024 must conform to the BNSS.
   
   

FACTUAL & LEGAL ANALYSIS

1. Chronology of Facts

• 24.07.2023: ED registered ECIR/DNSZO/04/2023 against the appellant; appellant arrested on 27.04.2024.
  
  
• 24.06.2024: ED filed a prosecution complaint under Sections 44 & 45 PMLA before the Special Court. The Special Court ordered it to be registered as a miscellaneous case and listed it for hearing on cognizance on 28.06.2024.
  
  
• 28.06.2024: Presiding Officer on recess; matter relisted for 02.07.2024.
  
  
• 01.07.2024: The BNSS, 2023 came into force, repealing the CrPC, 1973.
  
  
• 02.07.2024: Special Court took cognizance of offences under Section 3 read with Section 4 of the PMLA without providing the appellant an opportunity of being heard.
  
  
• 24.12.2024 – 22.03.2025: Appellant filed a recall application citing non-compliance with the first proviso to Section 223(1) of the BNSS. The Special Court dismissed it as dilatory, framed charges, and set the matter for trial.
  
  
• 19.05.2025: High Court of Uttarakhand dismissed the challenge to the cognizance order via Section 531(2)(a) BNSS (holding proceedings commenced under CrPC), though it remanded the framing of charges.
  
  

2. Legal Analysis & Resolution

• PMLA Special Courts vs. BNSS Complaint Procedure:
  
  
  The respondent argued that PMLA is a self-contained code excluding Chapters XIV–XVII of the BNSS. The Supreme Court rejected this, reiterating Tarsem Lal, Yash Tuteja, and Kushal Kumar Agarwal. Sections 44(1)(d), 46, and 65 of the PMLA deliberately import procedural provisions of the Code (now BNSS) to the extent they are not inconsistent. If Section 223 were inapplicable, the Special Court would lack fundamental powers under Sections 225–228 (such as dismissing frivolous complaints or dispensing with personal attendance).
  
  
• Administrative Filing vs. Judicial "Inquiry":
  
  
  The ED contended under Section 531(2)(a) that an "inquiry" was pending before 01.07.2024 because the complaint was filed and registered on 24.06.2024. The Court clarified the distinction between administrative/ministerial acts and judicial inquiry:
  
  
  • An "inquiry" under Section 2(1)(k) requires the active application of judicial mind to the facts and law.
    
    
  • Numbering a complaint and scheduling a hearing date are purely ministerial steps.
    
    
  • Judicial application of mind occurred only on 02.07.2024—the date cognizance was taken—by which time BNSS was the governing procedural code. Therefore, no inquiry was pending prior to 01.07.2024 to warrant the application of the old CrPC.
    
    
• Effect of Non-Compliance with Section 223(1) First Proviso:
  
  
  The requirement of hearing the accused prior to taking cognizance is mandatory ("shall") and substantive, tied directly to Article 21 fair trial safeguards. It cannot be excused as a technical or curable irregularity under Section 506 or 511 of the BNSS. The cognizance order dated 02.07.2024 was therefore declared void ab initio.
  
  

Final Verdict:

The Supreme Court allowed the appeal, set aside the High Court's judgment dated 19.05.2025 and the Special Court's cognizance order dated 02.07.2024, and remanded the matter to the Special Court to hear the appellant afresh at the stage of taking cognizance within 8 weeks.