Right to be heard before taking Cognizance u/s 223 BNSS

In a significant Judgment, the Supreme Court allow the appeal of the appellant where a complaint was filed under section 44(1)(b) of the Prevention of Money Laundering Act, 2002 (PMLA) against the accused/appellant. Right to be heard before taking Cognizance u/s 223 BNSS

The Supreme Court set aside the impugned judgment and order dated 20 November, 2024 only on the ground of non-compliance with the proviso to sub-section (1) of the 223 of the BNSS. The Court further held that Section 223 of sub-section (1) of the BNSS provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused/appellant an opportunity of being heard. Right to be heard before taking Cognizance u/s 223 BNSS

The Supreme Court direct the appellant to appear before the Special Court on 14 July 2025 so that he may be given an opportunity of being heard as per the provision of sub-section (1) of the Section 223 of the BNSS and no further notice shall be issued to the appellant by the Special Court.

Brief Fact

The brief facts is that a complaint was filed by the Enforcement Directorate under section 44(1) (b) of the Prevention of Money Laundering Act, 2002 (PMLA) against the accused/appellant. This Court consistently held the view that the complaint filed by the Enforcement Directorate under section 44(1) (b) of the PMLA would be governed by Section 200 to 204 of the CrPC.

This view taken has been by this Court in cases of YashTuteja vs. Union of India and others and Tarsem Lal v. Enforcement Directorate. Therefore, the provisions under section 223 to 226, would also apply to the complaint under section 44 of the PMLA. Since the complaint has been filed after July 1, 2024, Section 223 of the BNSS would apply to the present complaint.

Issues and Contentions of Respondent

The learned Additional Solicitor General has raised two submissions. Firstly he submitted that the hearing granted to the accused as per provision of sub-section (1) of the Section 223 of the BNSS would be limited to the question whether a case is made out to proceed on the basis of the complaint and the documents can be considered at the time of hearing.

His Second submission is that it is well established that cognizance of an offence is taken by the Criminal Court and not by the accused. Therefore, after taking cognizance after following the procedure prescribed by the provision of sub-section (1) of section 223 of the BNSS, if cognizance is taken, there would be no occasion to take cognizance of the same offence again if supplementary or further complaints are filed. Therefore, at that stage, there would be no occasion to give the accused the opportunity to being heard.

Court’s Reasoning

The aforesaid two submissions made by the Mr. Raju, learned Additional Solicitor General, need not be considered as these submissions do not arise in this appeal at this stage. However, we make it clear that the said arguments are clearly kept open, which can be raised before the Special Court. The impugned order of November 20, 2024 is set aside only on the ground of non-compliance with the provisions of sub-section (1) of Section 223 of the BNSS.

The Bench further stated that the provision of sub-section (1) of the Section 223 of BNSS impose restrictions on the power to the Court to take Cognizance by providing that no Magistrate shall take Cognizance of any offence without giving an opportunity of being heard to the accused.

Conclusion

The Bench ruled that the appellant to appear before the Special Court on 14 July 2025 so that he may be given an opportunity of being heard as per the provision of sub-section (1) of the Section 223 of the BNSS and no further notice shall be issued to the appellant by the Special Court.

Accordingly, the appeal partly allowed.

Case Title: - Kushal Kumar Agrawal vs. Directorate of Enforcement SCC May  9,  2025

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