The Supreme Court bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan recently held that a Special Court must provide the accused an opportunity to be heard before taking cognizance of a complaint under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 (PMLA), in accordance with the mandate of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

The bench quashed a cognizance order dated 20th November, 2024, passed by a Special Court, citing non-compliance with Section 223(1) of the BNSS. The BNSS, which came into force on 1st July, 2024, introduced a significant procedural safeguard absent in the previous Code of Criminal Procedure (CrPC): a proviso to Section 223(1) that prohibits courts from taking cognizance without first giving the accused an opportunity to be heard.

“In this case, admittedly, the opportunity was not given to the accused by the learned Special Judge before taking cognizance of the offence alleged in the complaint. Only on that ground, the order dated 20th November 2024 will have to be set aside,” the Court observed.

The bench emphasized that this procedural safeguard must be strictly observed, even in proceedings under the PMLA. Citing the precedent set in Tarsem Lal v. Enforcement Directorate, the Court reiterated that complaints filed under Section 44(1)(b) of the PMLA are governed by Sections 200 to 204 of the CrPC, and by extension, now fall under the ambit of Chapter 16 (Sections 223 to 226) of the BNSS.

During the proceedings, Additional Solicitor General (ASG) SV Raju advanced two submissions.

• The hearing under Section 223(1) should be limited to determining whether a case is made out on the basis of the complaint and the documents submitted.
• Cognizance is taken of the offence, not the offender, and once taken in compliance with Section 223(1), it need not be repeated for supplementary complaints.

The Court, however, declined to address these submissions, stating that they were not relevant to the issues arising in the current appeal and left them open for consideration in future cases.

In an earlier hearing, the Enforcement Directorate (ED) had also contended that since its investigation was completed prior to the BNSS coming into force, the new procedural requirement should not apply. However, this argument was not pressed during the final hearing on 9th May 2025.

Hence, the Supreme Court directed the appellant to appear before the Special Court on 14th July 2025, in order to be granted an opportunity to be heard in accordance with Section 223(1) of the BNSS.

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

Case Title – Kushal Kumar Agarwal v. Directorate of Enforcement 

Source: News.