Mandatory Accused-Hearing Before Cognizance Under Section 223(1) BNSS: Cognizance Without Hearing is Void Ab Initio (PMLA Complaints)

1) Introduction

This appeal concerned a transitional-procedure question arising from the repeal of the Code of Criminal Procedure, 1973 (“CrPC”) and the coming into force of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) on 01.07.2024, in the context of prosecutions under the Prevention of Money Laundering Act, 2002 (“PMLA”).

Parties and procedural setting

• Appellant: Parvinder Singh (accused under Section 3 read with Section 4 PMLA).
• Respondent: Directorate of Enforcement (ED).
• Forum: PMLA Special Court (Court of Session designated under Section 43 PMLA) and revisional scrutiny by the High Court; then the Supreme Court.

Timeline of key events

2) Summary of the Judgment

The Supreme Court held that:

• Sections 223 to 228 BNSS (corresponding to Sections 200 to 205 CrPC) apply to PMLA complaints because the PMLA, through Sections 46 and 65, adopts general criminal procedure “save as otherwise provided” and only excludes inconsistent provisions; the complaint procedure is not inconsistent with the PMLA.
• The first proviso to Section 223(1) BNSS is substantive and mandatory, forming part of fair-trial protections under Article 21; cognizance taken without giving the accused an opportunity of being heard is “void ab initio”.
• Section 531(2)(a) BNSS (savings) did not apply because the Special Court’s pre-01.07.2024 act of numbering/registration and listing for cognizance was merely ministerial and did not amount to an “inquiry” under Section 2(1)(k) BNSS.
• The Court rejected the ED’s argument that the accused must show prejudice; the violation was treated as an illegality vitiating cognizance, not a curable irregularity.

3) Analysis

A) Precedents Cited

i) Tarsem Lal v. Enforcement Directorate, (2024) 7 SCC 61

This decision anchored the proposition that a PMLA complaint under Section 44(1)(b) is governed by the CrPC complaint procedure (Sections 200 to 205 CrPC), because there is no inconsistency between those provisions and the PMLA. While Tarsem Lal dealt prominently with summons, custody-status upon appearance, and Section 205 CrPC exemption, its doctrinal contribution here is broader: it affirms that the Special Court’s “stand-alone” character does not displace the imported complaint procedure.

In the present case, the Court used Tarsem Lal to rebut the ED’s submission that Chapters XIV–XVII of BNSS (or the equivalent complaint procedure) have no application to PMLA proceedings. The Court also warned that excluding these provisions would create “disastrous consequences,” such as leaving the Special Court without ordinary complaint-stage powers (dismissal for no evidence, postponement of process, issuance/dispensation of appearance).

ii) Yash Tuteja & Anr. v. Union of India, (2024) 8 SCC 465

Yash Tuteja is cited for the structural proposition that cognizance of PMLA offences is taken upon a complaint and that, by virtue of Section 46 PMLA, Sections 200–204 CrPC apply to that complaint. Critically, it emphasizes the Special Court’s duty at cognizance to apply its mind to whether a prima facie case exists and, if not, to dismiss the complaint under Section 203 CrPC.

In Parvinder Singh, this supported the Court’s premise that the complaint-stage is not a procedural vacuum under PMLA; rather, it is governed by the general complaint framework unless the PMLA expressly provides otherwise.

iii) Kaushal Kumar Agarwal v. Directorate of Enforcement, 2025 SCC OnLine SC 1221.

This was the most directly on-point precedent on Section 223 BNSS. It held that the proviso to Section 223(1) BNSS “puts an embargo” on taking cognizance without giving the accused an opportunity of being heard. In Kaushal Kumar Agarwal, cognizance was set aside solely because such hearing was not given.

The ED urged reconsideration of Kaushal Kumar Agarwal. The Supreme Court refused, treating the line of authority (including Tarsem Lal and Yash Tuteja) as settled and warning that excluding complaint-procedure provisions would disable core judicial functions of the PMLA Special Court.

iv) Hardeep Singh v. State Of Punjab, (2014) 3 SCC 92

The ED relied on Hardeep Singh to argue that an “inquiry” had commenced before 01.07.2024, thereby attracting Section 531(2)(a) BNSS savings and continuing the matter under the CrPC.

The Supreme Court held that Hardeep Singh actually undermined the ED’s contention. It extracted paragraphs explaining that certain stages (including compliance-related or preparatory stages without judicial application of mind) are not “inquiry.” The Court then applied that logic to hold that merely numbering/listing the complaint for cognizance is not an “inquiry.”

v) Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167, State of U.P. v. Lakshmi Brahman, (1983) 2 SCC 372, and Raj Kishore Prasad v. State Of Bihar, (1996) 4 SCC 495

These authorities appeared through the extract in Hardeep Singh and served as conceptual scaffolding:

• Raghubans Dubey: cognizance is of the offence, not the offender—highlighting the centrality of the act of cognizance as a judicial step.
• State of U.P. v. Lakshmi Brahman and Raj Kishore Prasad: illustrate the contested boundaries of “inquiry” and emphasize that where there is no judicial application of mind, the stage is not properly an “inquiry.” The present judgment draws from this to classify pre-cognizance listing/registration as ministerial, not judicial.

B) Legal Reasoning

i) Harmonising PMLA with BNSS complaint procedure

The Court’s reasoning proceeds from the statutory “interface clauses” within the PMLA:

• Section 46 PMLA: applies CrPC provisions to proceedings before Special Court “save as otherwise provided.”
• Section 65 PMLA: applies CrPC provisions insofar as not inconsistent with the PMLA.
• Section 71 PMLA: overriding effect of PMLA in case of inconsistency.

Against this, the Court reads the BNSS (as successor to CrPC) as the applicable general procedure unless displaced by inconsistency. It rejects the ED’s “stand-alone enactment” argument because the PMLA itself imports general criminal procedure, and because removing complaint-stage powers would make the Special Court’s functioning jurisprudentially and practically untenable.

ii) The first proviso to Section 223(1) BNSS as a substantive, mandatory fair-hearing right

A central doctrinal move is the Court’s characterisation of the proviso as substantive, not merely procedural, because it confers a right on the accused to be heard before cognizance—linked to fair trial under Article 21.

Consequences drawn:

• The word “shall” is construed as mandatory.
• Non-compliance renders cognizance void ab initio (invalid from inception), not merely irregular.
• Therefore, the Court declines to apply a “no prejudice shown” approach; the infringement is treated as vitiating the proceeding at its root.

iii) Transitional law: when does Section 531(2)(a) BNSS “save” the CrPC?

Section 531(2)(a) BNSS saves pending “appeal, application, trial, inquiry or investigation” as on 01.07.2024, to be continued under CrPC to avoid piecemeal application.

The Court makes two key interpretive points:

• “Inquiry” under Section 2(1)(k) BNSS is a judicial act, requiring application of judicial mind reflected in the record.
• A ministerial act (like numbering/registration and posting for cognizance) does not commence inquiry.

On facts, cognizance was taken on 02.07.2024, after BNSS came into force. Since no saved “inquiry” was pending as on 01.07.2024, the BNSS regime (including Section 223) governed the cognizance step.

C) Impact

i) On PMLA prosecutions

• Mandatory pre-cognizance hearing becomes a decisive procedural checkpoint for PMLA complaints where cognizance is taken post-01.07.2024.
• Special Courts must now institutionalise a brief but real hearing to the accused prior to cognizance on complaint, aligning with the Supreme Court’s view that this is part of fair trial under Article 21.
• Orders taking cognizance without such hearing are exposed to being set aside as void ab initio, potentially causing reversion to the cognizance stage even after subsequent steps (including charges) have occurred.

ii) On the BNSS “savings” provision and transition litigation

• The judgment sets a functional test: only judicially substantive steps amount to “inquiry”; administrative docketing does not “freeze” the procedural law under Section 531(2)(a).
• This narrows the ability of prosecuting agencies to argue that pre-01.07.2024 filing, registration, or listing automatically preserves the CrPC regime.

iii) On criminal process more broadly

• The Court’s designation of the proviso as substantive suggests that other BNSS innovations that enhance accused rights may also be argued to apply prospectively where the saved proceedings have not commenced in the sense required by Section 531(2)(a).
• By treating the breach as illegality rather than curable irregularity, the Court signals strict compliance expectations for newly introduced fair-hearing mandates.

4) Complex Concepts Simplified

• Cognizance: the court’s formal act of taking judicial notice that a complaint/disclosure reveals commission of an offence, prompting the case to move forward. It is not a mere administrative step; it requires applying judicial mind.
• Inquiry (Section 2(1)(k) BNSS): any judicial proceeding before trial (e.g., judicial consideration steps), but not purely administrative acts. The judgment stresses that an inquiry begins only when there is discernible judicial application of mind.
• Ministerial act: routine administrative court work (registration/numbering, listing) that does not involve judicial evaluation.
• Void ab initio: legally invalid from the beginning, as if it never existed; not something that can be “cured” later by showing lack of prejudice.
• Special Court under PMLA: a designated Court of Session (Section 43 PMLA) empowered to take cognizance of PMLA offences on ED’s complaint without committal (Section 44(1)(b) PMLA), but it still follows general criminal procedure imported by Sections 46 and 65 PMLA unless inconsistent.
• Savings clause (Section 531(2)(a) BNSS): preserves ongoing proceedings under the old CrPC to prevent splitting a single proceeding across two procedural codes; but it applies only where an “appeal, application, trial, inquiry or investigation” was actually pending as of the commencement date.

5) Conclusion

Parvinder Singh v. Directorate of Enforcement crystallises a strong transitional and procedural rule: where a PMLA complaint may have been filed before 01.07.2024 but cognizance is taken after BNSS commencement, the first proviso to Section 223(1) BNSS applies, making an accused-hearing before cognizance mandatory. Treating that proviso as a substantive Article 21-aligned protection, the Court holds that non-compliance renders cognizance void ab initio. It further clarifies that mere pre-cognizance administrative steps do not amount to an “inquiry” capable of triggering Section 531(2)(a) BNSS savings.

The judgment’s significance lies in (i) reinforcing that PMLA Special Courts are not procedurally unmoored from the general criminal process, and (ii) elevating the BNSS’s pre-cognizance hearing requirement into a strict, enforceable safeguard likely to shape how complaint-based prosecutions are instituted and scrutinised going forward.