Appeal
2. The present appeal has been preferred against the judgment dated 19.05.2025 passed by the High Court of Uttarakhand wherein, an issue with respect to the scope and applicability of the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as the “BNSS”) had arisen, while dealing with a case where the prosecution complaint under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the “PMLA”) had been filed prior to the date of commencement of the BNSS.
Brief facts
ED case registered by respondent on 24.7.2023 and appellant was arrested on 27.4.2024 thereafter complaint was filed by the respondent on 24.6.2024 under PMLA and postponed for cognizance on 28.6.2024
3. An ECIR was registered by the respondent against the appellant being ECIR/DNSZO/04/2023 on 24.07.2023, pursuant to which he was arrested on 27.04.2024. Within two months from the date of the arrest, a prosecution complaint was duly filed by the respondent on 24.06.2024, invoking Sections 44 and 45 of the PMLA for the offences under Section 3 read with Section 4 of the PMLA before the designated Special Court. On the very same day, the Special Court issued a direction to register the complaint so filed as a miscellaneous case and, thus, fixed it for hearing on cognizance on 28.06.2024.
The court has taken cognizance on 02.07.2024 after the BNSS came to effect
4. When the case came up for hearing on the said date, it was once again fixed for hearing on cognizance on 02.07.2024 since the Presiding Officer was on recess. On behalf of the respondent, the learned Special Public Prosecutor had appeared, and the appellant was produced from judicial custody through video conferencing. Within a few days thereafter, the erstwhile Code of Criminal Procedure, 1973, (hereinafter referred to as the “CrPC”) was replaced by the BNSS with effect from 01.07.2024. When the case came up for hearing on 02.07.2024, the Special Court took cognizance of the offence in the presence of the learned Special Public Prosecutor and the legal advisor who had appeared on behalf of the respondent, and the appellant who was once again produced in judicial custody from the district jail. The miscellaneous case registered earlier was re-registered as Special Sessions Trial No. 28 of 2024.
Cognizance order
5. The following is the conclusion arrived at by the Special Court upon taking cognizance:
“6….From the perusal of the complaint, it is clear that in the present case, sufficient material is available to take cognizance of Section 3 read with Section 4 of the Prevention of Money Laundering Act against the accused Parvinder Singh. Accordingly, cognizance is taken of Section 3 read with Section 4 of the Prevention of Money Laundering Act against the accused Parvinder Singh.”
Application for recall of cognizance was filed on 24.12.2024 that section 223(1) BNSS has not been complied with and the same was dismissed on 22.3.2025
6. An application for recall of the order dated 02.07.2024 was filed before the learned Special Court on 24.12.2024, inter alia, alleging that the mandate of Section 223 of the BNSS, with specific reference to the first proviso to sub-section (1) had not been complied with, as the appellant was not given an opportunity of hearing before the Special Court while taking cognizance. The said application was dismissed by the Special Court, vide order dated 22.03.2025, holding that the filing of the application was merely a dilatory tactic employed by the appellant and that once cognizance had been taken, the same Court cannot reconsider it. Further, the Special Court, vide the said order, also framed the charges against the appellant under Section 3 read with Section 4 of the PMLA and put up the case for recording of prosecution evidence on 05.04.2025.
Two criminal revision applications was filed against the order of dismissal of application and the order of taking cognizance
7. Aggrieved, the appellant preferred a criminal revision before the High Court in CRLR No. 183/2025 challenging the order dated 22.03.2025, dismissing the recall application. Yet another criminal revision in CRLR No. 218/2025 was filed challenging the cognizance order dated 02.07.2024.
Criminal revisions were dismissed quoting section 531(2)(a) BNSS
8. The High Court, vide the impugned judgment dated 19.05.2025, has been pleased to hold that the provisions of Section 223 of the BNSS will not have any application to the instant case as the proceedings under the PMLA were initiated against the appellant much prior to the commencement of the BNSS. Accordingly, the criminal revision filed in CRLR No. 218/2025 has been dismissed by placing reliance upon Section 531(2)(a) of the BNSS, which saves criminal proceedings initiated prior to the commencement of the BNSS to continue under the provisions of the erstwhile CrPC. On the same day, the criminal revision filed in CRLR No. 183/2025 was partly allowed by the High Court by quashing the order dated 22.03.2025 to the extent of the charges framed and remanded the matter to the Special Court for fresh hearing on the issue of framing of charges.
Submissions
Submissions on behalf of the appellant
9. The learned Senior Counsel appearing for the appellant submitted that the appellant has, admittedly, not been heard by the Special Court at the time of taking cognizance. It was further submitted that Sections 200 to 205 of the CrPC, which have been reiterated under Sections 223 to 228 of the BNSS, are applicable to the case at hand. Thus, there is no inconsistency between the said provisions of the BNSS and that of the PMLA and, hence, the appellant is entitled to be heard at the time of taking cognizance, as provided under the first proviso to Section 223(1) of the BNSS. A similar view has already been taken by this Court in the case of Kushal Kumar Agarwal v. Directorate of Enforcement, 2025 SCC OnLine SC 1221, by placing reliance upon two earlier decisions of this Court in the cases of Yash Tuteja & Ors. v. Union of India, (2024) 8 SCC 465, and Tarsem Lal v. ED, (2024) 7 SCC 61.
Submissions on behalf of the respondent
11. Mr. S.V. Raju, the learned Additional Solicitor General (ASG) appearing for the respondent, submitted that the PMLA is a stand-alone enactment and, therefore, the provisions of the BNSS do not have any application to the proceedings under PMLA. There is no question of committal involved in the procedure envisaged under the PMLA and, therefore, the Special Court, being a court of original jurisdiction having a distinct object behind it, cannot be made to follow the general criminal procedure contemplated under the BNSS. In any case, Chapters XIV to XVII of the BNSS do not have any application to the proceedings under the PMLA. In light of the aforesaid submission, the learned ASG further contended that the decision rendered by this Court in Kushal Kumar Agarwal (supra), as relied upon by the learned Senior Counsel appearing for the appellant, has to be reconsidered.
13. In any case, the appellant has not shown any prejudice caused to him due to the Special Court having taken cognizance without hearing him. Hence, the impugned order ought not to be interfered with, and the appeal deserves to be dismissed.
Analysis
14. Before we go into the issues raised by the learned Senior Counsel and the learned ASG, we shall now have a look at the relevant provisions.
(i) The Prevention of Money Laundering Act, 2002
Section 43 of the PMLA says only court of Sessions must function as Special Court for PMLA
15.Section 43 of the PMLA defines a Special Court as a Court of Session which has been designated by way of a notification issued by the Central Government in consultation with the Chief Justice of the respective High Court. Any Trial Court other than a Court of Session cannot function as a Special Court.
“Section 44 of the PMLA”
16. Section 44(1)(b) of the PMLA empowers the authority to file a complaint before the Special Court without the accused being committed to it for trial. Under the proviso to Section 44(1)(b) of the PMLA, it is well open to the authority to submit a closure report before the Special Court if no offence of money laundering is made out upon conclusion of investigation. As per Section 44(1)(c) of the PMLA, it is open to the authority who filed the complaint to seek committal of a case relating to a Scheduled Offence, which is pending before a competent Court, to the Special Court by way of an application. If and when such an application is filed, the Court dealing with the Scheduled Offence has to commit the same to the Special Court, which shall thereafter proceed to deal with it from the stage at which it was committed. Section 44(1)(d) of the PMLA makes the procedure under the CrPC, which has now been replaced by the procedure under the BNSS pursuant to the repeal, applicable to a trial before the Special Court as if it were a Court of Session.
Section 46 of the PMLA says proceedings before Court of Session stands extended to Special Court
17.Section 46 of the PMLA treats the Special Court to be deemed to be a Court of Session, wherein, the provisions of the CrPC (now BNSS) shall apply to the proceedings under the PMLA, save as otherwise provided under the PMLA. In other words, the procedural framework governing the proceedings before a Court of Session stands extended to the Special Court under the PMLA.
Section 65 of the PMLA makes CrPC applicable to PMLA proceedings
18.Section 65 of the PMLA makes the provisions of the CrPC (now BNSS) applicable to proceedings under the PMLA, provided that they are not inconsistent with the provisions of the PMLA. It acknowledges the overriding effect of the PMLA while also facilitating the application of the other provisions contained in the CrPC (now BNSS).
Section 71 of the PMLA supersedes any other law inconsistent with PMLA in the same field
19.Section 71 of the PMLA places the provisions of the PMLA on a higher pedestal vis-à-vis any other law operating in the same field. Therefore, in the event of any inconsistency that may arise between the provisions of the PMLA on the one hand and those contained in any other statute, the former, being a special statute, would prevail, as expressly provided under Section 71 of the PMLA.
(ii) Bharatiya Nagarik Suraksha Sanhita, 2023
20. The BNSS is an improved version of the erstwhile CrPC. This is a procedural Code designed to act as a guiding framework to all the stakeholders in the criminal justice system. While retaining several provisions contained in the earlier statute, a conscious endeavour has been made to make the BNSS citizen-centric, while facilitating the investigating agencies and the Courts.
Inquiry: Section 2(1)(k) of the BNSS
“2. Definitions.—(1) In this Sanhita, unless the context otherwise requires,—
***
(k) “inquiry” means every inquiry, other than a trial, conducted under this Sanhita by a Magistrate or Court;” (emphasis supplied)
Inquiry is a judicial act requires judicial mind reflects through recording of the court
21.Section 2(1)(k) of the BNSS, 2023 defines an “inquiry”. An exhaustive and inclusive definition of the said term has been provided by stating that it would mean every inquiry other than a trial conducted under the BNSS by a Magistrate or a Court. However, it is pertinent to note that an inquiry is a judicial act, as against an administrative one, requiring application of judicial mind which must be reflected through the recording made by a Court. Hence, it is a positive and conscious act done by a Magistrate or a Court.
Section 4 of the BNSS
“4. Trial of offences under Bharatiya Nyaya Sanhita, 2023 and other laws.— (1) All offences under the Bharatiya Nyaya Sanhita, 2023 shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” (emphasis supplied)
Section 5 of the BNSS, 2023
“5. Saving.— Nothing contained in this Sanhita shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.” (emphasis supplied)
22. Similar to the provisions contained under the PMLA, Section 4(2) of the BNSS makes the provisions of the BNSS subject to any other enactment governing the field while dealing with offences under any law apart from those under the Bharatiya Nyaya Sanhita, 2023.
23. Section 5 of the BNSS extends protection to a special or local law, only in the absence of a specific provision to the contrary under the BNSS overriding such special or local law.
Section 210 of the BNSS, 2023
“210. Cognizance of offences by Magistrate.—(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence—
(a) upon receiving a complaint of facts, including any complaint filed by a person authorised under any special law, which constitutes such offence;
(b) upon a police report (submitted in any mode including electronic mode) of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.” (emphasis supplied)
Section 213 of the BNSS, 2023
“213. Cognizance of offences by Court of Session.— Except as otherwise expressly provided by this Sanhita or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Sanhita. ” (emphasis supplied)
Section 210 (1)(a) BNSS: Cognizance on complaint (including complaints filed by authorised persons under special law)
24. Section 210 of the BNSS deals with cognizance of offences by a Magistrate. Section 210(1)(a) of the BNSS empowers the Magistrate to take cognizance of offences in complaint cases, including complaints which may be filed by an authorised person under any special law.
25. Section 213 of the BNSS bars a Court of Session from directly taking cognizance of an offence, unless the case has been committed to it by the Magistrate. However, it also makes it clear that the said bar shall not apply in case of a contrary provision existing under the BNSS or any other law.
Section 223 of the BNSS, 2023
“223. Examination of complainant.— (1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:
Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses—
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 212:
Provided also that if the Magistrate makes over the case to another Magistrate under Section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
(2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless—
(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and
(b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received.” (emphasis supplied)
Section 223(1) BNSS: Deals with examination of complainant but prohibit the magistrates from taking cognizance unless accused is given an opportunity if being heard
26. Section 223 of the BNSS deals with the examination of a complainant. The first proviso to Section 223(1) of the BNSS prohibits the Magistrate from taking cognizance of an offence, unless the accused is given an opportunity of being heard.
Section 223(1) BNSS confers right on the accused to be heard before taking cognizance which is part of Article 21 and hence mandatory
27. Though Chapter XVI of the BNSS lays down the procedural law dealing with complaints made to a Magistrate, we hold that the aforesaid proviso is substantive in nature, as it does not merely regulate the manner in which the proceedings are to be conducted, rather it confers a right upon the accused to be heard before taking cognizance which forms a part of the right of an accused to a fair trial enshrined under Article 21 of the Constitution of India, 1950. We further hold that the word “shall” occurring in the said proviso has to be construed to be mandatory in nature, which ensures to the benefit of an accused. Resultantly, cognizance of an offence taken by a Court without due compliance of the afore stated proviso would be void ab initio.
Section 531 of the BNSS, 2023: Once a proceeding initiated under the Cr.P.C then it must meet its logical conclusion under the CrPC itself
28. Section 531(2)(a) of the BNSS has a laudable objective behind it which saves the proceedings initiated under the CrPC, prior to the commencement of the BNSS. It is meant to give a prospective application to the provisions of the BNSS. In other words, once a proceeding such as an appeal, application, investigation, inquiry or trial is initiated under the CrPC, then the same must meet its logical conclusion under the CrPC itself. Thus, we hold that the object of the said provision is to avoid piecemeal application of the CrPC vis-à-vis the BNSS.
Substantive right conferred under the BNSS (u/s 223(1) BNSS) shall definitely ensure the benefit of accused since such proceeding was not foreseen under section 531(2)(a)
29. A substantive right conferred under the BNSS would definitely ensure to the benefit of an accused against whom none of the proceedings envisaged under Section 531(2)(a) of the BNSS has been initiated. One has to see the nature of right. It is not a case of either a retrospective or retroactive application, rather it is a prospective one when a better right has been conferred under the BNSS.
Legal & factual analysis
30. The issue of application of the procedure pertaining to a complaint under the CrPC (now BNSS) to proceedings under the PMLA is no longer res integra, as has been elaborately dealt with by this Court in the decisions of Tarsem Lal (supra), Yash Tuteja (supra) and Kushal Kumar Agarwal (supra). Though we find that in the instant case the said issue has not been specifically raised either before the Trial Court or the High Court, we are willing to consider the same, being a pure question of law.
Since the right of the accused being heard has serious bearing taking away the applicability of provisions under sections 223 to 228 BNSS would lead to severe consequences
31. The submission of the learned ASG that the earlier decision of this Court in Kushal Kumar Agarwal (supra) will have to be reconsidered and, therefore, be referred to a larger Bench cannot be countenanced. Taking away the applicability of the provisions governing a complaint under Sections 200 to 205 of the CrPC (now Sections 223 to 228 of the BNSS) to the proceedings under the PMLA, including the one that has a serious bearing not only on the right of the accused but also on the power of the Court, would lead to disastrous consequences. If the argument so made by the learned ASG is accepted, then the Special Court under the PMLA would have no jurisdiction to: dismiss a complaint despite an absolute lack of evidence, postpone the issuance of process, issue process or dispense with the appearance of an accused as provided under Sections 225 to 228 of the BNSS, respectively.
32.In such view of the matter, we are in absolute agreement with the decisions rendered by this Court in Tarsem Lal (supra), Yash Tuteja (supra) and Kushal Kumar Agarwal (supra), which we quote profitably.
33.Accordingly, we have no hesitation in holding that Sections 200 to 205 of the CrPC (now Sections 223 to 228 of the BNSS) would be applicable to proceedings under the PMLA.
34.A mere ministerial act cannot be termed as an “inquiry” under Section 2(1)(k) of the BNSS. Taking cognizance is nothing but an application of judicial mind. So long as the application of the judicial mind is not exercised, an inquiry cannot commence. It is the judicial notice of an offence by the Court which is relevant. While doing so, it is presumed that the Court would take note of the complaint along with the materials placed before it.
35.The learned ASG placed reliance upon the decision of this Court in Hardeep Singh (supra) to contend that in the facts of the instant case, the inquiry had been initiated upon filing of the prosecution complaint on 24.06.2024 which is, admittedly, prior to the commencement of the BNSS on 01.07.2024. We find that the said decision actually militates against the submission made by him, and would only quote the following paragraphs in the aforesaid decision:
“ ……”
36. As rightly held by this Court in Hardeep Singh (supra), even the stage of ensuring compliance with Sections 207 to 209 of the CrPC, 1973 cannot be termed as an inquiry because there is no application of judicial mind. In the facts of the instant case, the direction issued by the Special Court, vide order dated 24.06.2024, to number the complaint and, thereafter, post the matter on a future date for hearing on cognizance would certainly not come within the purview of an “inquiry” under Section 2(1)(k) of the BNSS. In such view of the matter, the afore stated contention raised by the learned ASG falls to the ground.
37. As already discussed, though the complaint under the PMLA was filed earlier, the cognizance was only taken subsequently, on 02.07.2024, by which time the BNSS had come into force. Admittedly, the appellant has not been heard at the time of taking cognizance. The mandate of a legislation which ensures the right of an accused to a fair trial, whose liberty is at stake, cannot be dispensed with. Thus, the contention of the learned ASG that prejudice caused due to non-hearing at the stage of cognizance will have to be shown by the accused cannot be accepted, as it is not a mere irregularity that would attract either Section 506 or 511 of the BNSS, but is an illegality that would vitiate the very proceedings.
Conclusion
Set aside the cognizance taken based on the ground that the accused raised the objection at the earliest point in time
38. Based on the above discussion, the views expressed by the High Court are, therefore, liable to be set aside. We do find that the allegations against the appellant are quite serious. However, non-compliance with the first proviso to Section 223(1) of the BNSS vitiates the very order taking cognizance, and the same cannot be sustained in the eyes of the law. In fact, the appellant has, at the earliest point in time, filed the application for recall of the order taking cognizance by placing reliance upon the said proviso. Had the Special Court allowed it, the trial would have proceeded further. Suffice it to state that the appellant cannot be faulted for any delay that has occasioned.
Allowed the appeal
39. For the foregoing reasons, the impugned judgment of the High Court dated 19.05.2025 and the order taking cognizance by the Special Court dated 02.07.2024 stand set aside.
40. The Special Court is directed to afford an opportunity of hearing to the appellant by proceeding from the stage of taking cognizance. The aforestated exercise must be completed within a period of 8 weeks from the date of receipt of a copy of this judgment.
41. The appeal stands allowed, accordingly.
Resources
Judgments Cited in Parvinder Singh v. Directorate of Enforcement
- Tarsem Lal v. Directorate of Enforcement (2024) 7 SCC 61
- Yash Tuteja & Anr. v. Union of India (2024) 8 SCC 465
- Kaushal Kumar Agarwal v. Directorate of Enforcement 2025 SCC OnLine SC 1221
- Hardeep Singh v. State of Punjab (2014) 3 SCC 92
- Raghubans Dubey v. State of Bihar AIR 1967 SC 1167
- State of U.P. v. Lakshmi Brahman (1983) 2 SCC 372
- Raj Kishore Prasad v. State of Bihar (1996) 4 SCC 495
Acts and Sections Involved in Parvinder Singh v. Directorate of Enforcement
1. Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
- Section 223(1) (First Proviso): The central issue of the case, mandating that no cognizance of an offense shall be taken by a Magistrate without giving the accused an opportunity of being heard.
- Section 2(1)(k): Defining what constitutes an “inquiry,” specifically determining whether ministerial acts (like numbering a complaint) qualify.
- Section 531(2)(a): The savings/transitional clause used to determine if the older CrPC applied or if the BNSS had taken effect for this specific proceeding.
- Sections 223 to 228: General provisions governing complaints, which the Court ruled apply to PMLA proceedings.
2. Prevention of Money Laundering Act, 2002 (PMLA)
- Section 3 & Section 4: The substantive offenses of money laundering for which cognizance was being taken against the accused.
- Section 44(1)(b): Governing the jurisdiction of the Special Court to take cognizance of an offense upon a complaint made by an authorized authority.
- Sections 46 & 65: Provisions outlining the application of the Code of Criminal Procedure (now BNSS) to proceedings before the Special Court, insofar as they are not inconsistent with the PMLA.
- Section 71: The provision giving overriding effect to the PMLA in cases of inconsistency.
3. Code of Criminal Procedure, 1973 (CrPC)
- Sections 200 to 205: The older procedural framework governing complaints to magistrates, which the Court compared to the new Sections 223 to 228 of the BNSS to demonstrate continuity in the legal framework prior to the BNSS transition.
4. The Constitution of India
- Article 21: Invoked by the Court to rule that the right to a pre-cognizance hearing under Section 223(1) of the BNSS is a substantive, mandatory safeguard that forms part of the accused’s fundamental right to a fair trial.
Party
Parvinder Singh vs The Directorate of Enforcement – Criminal Appeal No. 2678 of 2026 (Arising out of SLP (Crl.) No. 12055 of 2025) – 2026 INSC 519 – 19 May 2026 – Hon’ble Mr. Justice M. M. Sundresh and Hon’ble Mr. Justice Nongmeikapam Kotiswar Singh.
