CRM-M-

IN

Sikander Singh Directorate

CORAM:

Present:

TRIBHUVAN

Nagarik Suraksha dated 22.11.2024, Prevention

Sessions Judge, Section 223

hearing before complaint,

set aside order proceeded

29954-2025

THE HIGH COURT OF PUNJAB

CHANDIGARH

Versus of Enforcement, Gurugram

HON'BLE MR. JUSTICE TRIBHUVAN

Mr. Vikram Chaudhri, Senior (through video conferencing), Ms. Hargun Sandhu, Advocate, Mr. Zoheb Hussain, Special Counsel (through video conferencing), Mr. Lokesh Narang, Senior Panel

DAHIYA, J.

The petition has been filed under Sanhita, 2023 (for short, Annexure P-6, whereby

of Money Laundering Act, Gurugram, dismissed the read with Section 511 of the taking cognizance of

dated 27.06.2024, filed against dated 05.12.2024, Annexure to take cognizance of the offences

1

AND HARYANA AT

CRM-M-29954-2025 Pronounced on: 29.07.2025

….Petitioner ….Respondent

DAHIYA

Advocate assisted by for the petitioner. assisted by

Counsel, for the respondent. Section 528 of the Bharatiya 'BNSS'), for setting aside order Special Judge [under

2002 (for short, 'PMLA')]-cum petitioner's application filed under BNSS seeking an opportunity offences alleged in prosecution him. Prayer has also been made P-8, whereby the Special Judge against the petitioner and the

-

of

to

1 of 12

summoned offences under the PMLA

Sikander

16.11.2021.

2.

ECIR/GNZO/20/2021 offences

whereof

prosecution

was presented Gurugram,

Judge, Gurugram, Sessions Judge to the Sessions the Sessions adjourned

on a few

place, as apparent

2.1.

01.07.2024.

been provided Accordingly, the Special cognizance

29954-2025

him along with other accused Section 3 read with Sectio in case COMA-9-2024 titled Singh and others arising out As per facts apparent on dated 16.11.2021,

under the PMLA was registered the petitioner was arrested in complaint in the matter under before the Additional on 27.06.2024. As it was required being the Special Judge directed to check and register Judge immediately for 04.07.2024. Judge/Special Judge on 31.07.2024, to 14.08.2024 for consideration. more dates for one reason or another from the short orders placed In the meanwhile, the BNSS In terms of proviso to Section to the accused at the time the petitioner moved an application Judge seeking an opportunity of the complaint dated 27.06.2024.

2

to face trial for commission n 70 punishable under Section 4 Directorate of Enforcement of ECIR/GNZO/20/ 2021, dated record, in brief, an enquiry, pertaining to the aforementioned by the respondent, pursuant the case on 30.04.2024. The Sections 44 and 45 of the PMLA Sessions Judge/Vacation Judge, to be heard by the Sessions under the PMLA, the Additional the complaint, and sent the The case was taken up

but was not heard and

Thereafter also, it was adjourned and hearing could not take on record as Annexure P-4. came into force with effect from 223 thereof, a right of hearing of taking cognizance of offence. under Section 223 before of hearing before taking of

of

v.

file

by

has

2 of 12

2.2.

dismissed the prosecution force of the Procedure,

provide any Thereafter, case proceeded accused/petitioner

3.

senior coun jurisdiction petitioner before taking proviso to patently wrong

27.06.2024,

construed applied at purely administrative Court for

an 'inquiry'

provision

case was

the petitioner

taking cognizance.

29954-2025

The Special Judge heard arguments the same vide impugned order complaint was filed on 27.06.2024, BNSS and, accordingly, provisions 1973 (for short, 'Cr.P.C.') right of hearing to the accused the Special Judge heard the complaint to take cognizance

vide impugned order dated

In this background, the solitary sel for the petitioner is that being violative of proviso to has not been afforded an opportunity cognizance of the offences Section 223 has to be complied in holding that the prosecution as mere presentation of the as filing of the complaint. Judicial that time; it was presented and functions of forwarding

04.07.2024. Therefore, it cannot under Section 2(g) of the Cr.P.C., Section 531 of the BNSS. The after coming into force of the BNSS, was required to be given

In support of the submissions,

3

on the application, and dated 22.11.2024. It was held that i.e., before coming into of the Code of Criminal

will be applicable which do at the time of taking cognizance. and finding a prima facie of the offences against

05.12.2024.

submission made by learned the impugned order is without Section 223 of the BNSS as of hearing in terms thereof against him. The mandate with. The Special Court has gone complaint was filed

complaint on that date cannot mind of the Court was

kept pending only for performing the case file to the Special be considered commencement protected under the repealing judicial application of mind to i.e., 05.12.2024, accordingly, an opportunity of hearing before learned senior counsel

not

the

the

of

on

be

not

of

the

has

3 of 12

placed reliance in Criminal Directorate appellant/complainant cognizance

Directorate

the time cogniz Court directed

to Section

4.

that ECIR Therefore, be pending will not apply. Court. Accordingly, becomes the

on 27.06.2024, not give

contended

afford a hearing on 02.08.2024

complaint

apply to the

5.

considered.

29954-2025

upon order, dated 09.05.2025, Appeal No.2749 of 2025 of Enforcement. In that matter on 24.04.2014, and

against him on 20.11.2024 of Enforcement under Section ance was taken the BNSS the trial Court to afford hearing 223 of the BNSS.

Learned counsel for the respondent, is not an FIR, as it is an internal by registration of ECIR no inquiry against the accused in a Court, It applies when the prosecution the date of filing the

terminal date, and in the instan when provisions of the Cr.P.C. any right of hearing to the that in Kushal Kumar Agarwal only because the complaint , i.e., after coming into force has been filed after 1^st July, 2024, present complaint.'

Submissions made by learned

4

passed by the Supreme Court titled Kushal Kumar Agarwal ECIR was registered against the Special Judge (PC Act) took , in a complaint filed by 44(1)(b) of the PMLA. Since had been enforced, the Supreme to the appellant under proviso on the contrary, contends document of the Directorate. or proceedings can be said and Section 2(g) of the Cr.P.C. complaint is forwarded to complaint against the accused t case, undisputedly, it was filed were applicable which would petitioner/accused. He has also case ibid, direction was issued under the PMLA had been filed of the BNSS. It held, '…As Section 223 of the BNSS will counsel for the parties have been v.

the

the

by

to

the

to

the

4 of 12

6.

petitioner BNSS before order dated

7.

531(2) of Apparently, inquiry or enforcement made in accordance

7.1.

Enforcement Sections 200

29954-2025

The only issue arising for was entitled to hearing in terms taking cognizance of the offe

05.12.2024.

To address the issue, a reference the BNSS, which reads as under:

531. Repeal and savings.—

(2) Notwithstanding such repeal

(a) if, immediately before comes into force, there is any or investigation pending, then, inquiry or investigation shall made, as the case may be, in the Code of Criminal Procedure, immediately before such commencement to as the said Code), as if this

(b) and (c) xxx xxx the savings clause provides in investigation is pending immediately of the BNSS, the same shall with the provisions of

It is no longer res integra Directorate under the PMLA to 204 Cr.P.C. Sections 200 and

200. Examination of complainant

cognizance of an offence on the complainant and the witnesses substance of such examination shall be signed by the complainant by the Magistrate:

5

consideration is, whether of proviso to Section 223 of nces against him vide impugned needs to be made to Section

(1) xxx xxx —

the date on which this Sanhita appeal, application, trial, inquiry such appeal, application, trial, be disposed of, continued, held accordance with the provisions 1973 (2 of 1974), as in force (hereinafter referred

Sanhita had not come into force; case any appeal, application, trial, before the date

be disposed of, continued, held the Cr.P.C.

that a complaint filed by is governed by the provisions 202 read as under:

.—(1) A Magistrate taking complaint shall examine upon oath present, if any, and

shall be reduced to writing and and the witnesses, and also the

the

or

of

of

or

the

of

the

5 of 12

Section 2(g)

29954-2025

Provided that, when the Magistrate need not examine witnesses—

(a) if a public servant discharge of his official duties complaint; or

(b) if the Magistrate makes trial to another Magistrate under Provided further that

case to another Magistrate under the complainant and the witnesses, not re-examine them.

202. Postponement of issue

on receipt of a complaint authorised to take cognizance him under section 192, may, where the accused is residing which he exercises his jurisdiction against the accused, and either direct an investigation to be made other person as he thinks whether or not there is sufficient Provided that no such

made—

(a) where it appears to complained of is triable Sessions; or

(b) where the complaint unless the complainant have been examined on

(2) and (3) xxx xxx of the Cr.P.C. defines 'inquiry'

2. Definitions.—In this Code, requires,—

6

complaint is made in writing, the complainant and

acting or purporting to act in or a Court has made

over the case for inquiry Section 192:

if the Magistrate makes over Section 192 after examining the latter Magistrate need

of process.—(1) Any Magistrate, of an offence of which he or which has been made over if he thinks fit, and shall, in a case at a place beyond the area

postpone the issue of process inquire into the case himself by a police officer or by such fit, for the purpose of deciding ground for proceeding:

direction for investigation shall the Magistrate that the offence exclusively by the Court

has not been made by a Court, and the witnesses present (if any) oath under section 200.

which reads as under:

unless the context otherwise the

the

the

the

or

the

is

to

in

or

be

of

6 of 12

As apparent, cognizance present. Under process and investigation the accuse postponed

be. The word than a trial

7.2.

jurisdiction affording

29954-2025

(a) to (f) xxx xxx

(g) "inquiry" means every conducted under this Code by under Section 200 Cr.P.C., of an offence on examining Section 202 Cr.P.C., the Magistrate inquire into the complaint of by a police officer or any other d resides beyond his jurisdiction, mandatorily to hold the inquiry 'inquiry', under Section 2(g) conducted under the Code by a The new enactment, BNSS,

to the Magistrate to take cognizance an opportunity of hearing to the

223. Examination of complainant

jurisdiction while taking cognizance shall examine upon oath the present, if any, and the substance reduced to writing and shall the witnesses, and also by the Provided that no cognizance by the Magistrate without giving being heard:

Provided further that

writing, the Magistrate need the witnesses—

(a) if a public servant discharge of his official duties complaint; or

7

inquiry, other than a trial, a Magistrate or Court; a Magistrate is empowered to take the complainant and the witnesses may postpone the issue

an offence triable by him, or direct person, as he thinks fit. In case the issue of process has to or investigation, as the case may Cr.P.C. refers to an inquiry other Magistrate or Court.

has Section 223 which provides of an offence, but only after accused; it reads as under:

.—(1) A Magistrate having of an offence on complaint complainant and the witnesses of such examination shall be signed by the complainant and Magistrate:

of an offence shall be taken the accused an opportunity when the complaint is made not examine the complainant and acting or purporting to act in or a Court has made

of

be

be

of

in

the

the

7 of 12

7.3.

complaint to check Court/Special hearing before cognizance ascertained commencement means an

the Code.

receipt of can inquire Therefore, competence triable by inquiry without to test veracity the process

mind to the

Cr.P.C., an

29954-2025

(b) if the Magistrate makes trial to another Magistrate under Provided also that

case to another Magistrate examining the complainant Magistrate need not re-

(2) xxx xxx In the instant case, the respondent before the Additional Sessions and register the same, and Judge for 04.07.2024. Although the Special Judge on 31.07.2024, of offences were not advanced. as to whether presentation/filing of inquiry into it. In terms inquiry other than trial conducted Section 202 Cr.P.C. further a complaint of an offence he is into the case himself or order the pre-requisite to such to take cognizance of the offence the Magistrate, he is precluded doubt requires taking evidence of the allegations to find out

. Resultantly, except when the complaint in the manner stipulat inquiry cannot be said to have

8

over the case for inquiry Section 212:

if the Magistrate makes over under Section 212 after and the witnesses, the latter examine them.

presented the prosecution Judge on 27.06.2024, who ordered sent the file to the competent the matter was listed

the arguments for taking It therefore needs to

of the complaint amounts of Section 2(g) Cr.P.C., 'inquiry' by a Magistrate or Court under provides that any Magistrate, authorised to take cognizance investigation by a Police officer. an inquiry is the Magistrate's alleged. Unless the offence from inquiring into it. Such on oath and/or applying mind prima facie grounds for issuing Magistrate has applied judicial ed under Sections 202 to 204 commenced or pending before or

the

for

be

to

on

of,

is

an

8 of 12

him/her. M sent to the application administrative to know

application fall within filing of

Sessions Judge as to make Additional offences

complaint/allegations. Special Judge

dated 05.12.2024.

8.

Section 223 construction accused before provided

and Section which has

an opportunity offence has Legislature sought to

29954-2025

ere filing/presentation of a complaint competent Court for taking

of judicial mind. In such cases, act of sending the case file that the offences are not triable of judicial mind to the allegations the ambit of inquiry under Section prosecution complaint by the on 27.06.2024 would not

provisions of the Cr.P.C. applicable Sessions Judge was competent under the PMLA, nor did

And cognizance of

after coming into force of There is another aspect of BNSS needs to be considered ' of a statute. The provision issuing of process against under Section 200 Cr.P.C. The two

223 BNSS, are pari materia created a new procedure for taking of hearing to the accused serious repercussions for the deemed it appropriate to provide be summoned. The right of hearing

9

, or its registration for being cognizance, would not require Magistrate only performs to the competent Court on coming by him/her. This is not in the complaint and will 2(g) Cr.P.C. Consequently, respondent before the Additional attract Section 531(2)(a) BNSS to it, because neither

to take cognizance of the alleged he apply judicial mind to the offences was taken by the BNSS, vide impugned order the matter, and the provision in the light of 'rule of benefici provides a right of hearing to him by the Court, which is provisions, Section 200 Cr.P.C. except the first proviso to latter cognizance only after giving

. Issuing process of a criminal accused, and that is the reason prior hearing to the person is one of the most cherished the

an

not

the

so

the

the

the

of

al

the

not

the

9 of 12

rights in Natural Justice Articles 14 reason why

coming into technically interests of cases by

provisions

cognizance

and only

extent of providing

8.1.

laws to the another, (1983) whether the (Amendment) Act [Prevention Amendment)

account of

7 of the

inserted in for a varie The accused adulterated, Applying

29954-2025

the criminal jurisprudence, and permeating to the Constitutional and 21 guaranteeing the right the benefit of hearing should force of the BNSS, even if filed before coming into force justice and fair trial require applying the rule of beneficial of Section 200 Cr.P.C. and of offence on a complaint, are the procedure of taking cognizance prior hearing to the accused The Courts have applied the accused. A case in point is

1 SCC 177, wherein the Supreme Central Amendment Act [Prevention Act, 1976] will impliedly repeal of Adulteration of Food, Drugs Act, 1973], which provided commission of offence under Act. By way of the Central Amendment the original Act which came into d procedure of trial and lesser therein was on trial as his and the complaint had been the rule of beneficial construction

10

is embedded in the Principles scheme of things, especially to fair trial. Therefore, there is not be afforded to the accused after complaint against him has been of the BNSS on 01.07.2024. The the right should be given in such construction of statute, as

223 BNSS, meant for taking not in contravention of each other has been varied to the limited

.

rule to give benefit of ex-post facto T. Barai v. Henry AH HOE and Court considered the is of Food Adulteration the West Bengal Amendment and Cosmetics (West Bengal for imprisonment for life Section 16(1)(a) read with Section Act, Section 16-A was

force on 01.04.1976, providing punishment for the said offence food sample was found to lodged against him on 24.09.1975. of statute, it was held that of

no

the

sue

on

.

be the

10 of 12

accused would rule requires the earlier as under:

29954-2025

be entitled to the benefit that even an ex-post facto law law, should be applied to mitigate

22. It is only retroactive criminal under Article 20(1). The prohibition is that no person shall be convicted violation of a law in force at act charged as an offence prohibits penalty greater than that which the law in force at the time of is quite clear that insofar as the new offences or enhances punishment offence no person can be convicted nor can the enhanced punishment be applicable. But insofar reduces the punishment for an 16(1)(a) of the Act, there is not have the benefit of such reduced

23. To illustrate, if Parliament the Indian Penal Code, 1860 for an offence of murder shall life instead of the present sentence life, then it cannot be that sentence of death even in pending

24. In Rattan Lal v. State of consideration was whether an benefit of Probation of Offenders into force after the accused offence. The Court by majority the affirmative. Subba Rao, J. concluded that in considering construction required that even

11

of such reduced punishment. The which is not in contravention the rigor of the law. It was held legislation that is prohibited contained in Article 20(1) of any offence except

the time of the commission of nor shall he be subjected to might have been inflicted under the commission of the offence. Central Amendment Act creates for a particular type

by such ex post facto law prescribed by the amendment as the Central Amendment Act offence punishable under Section no reason why the accused should punishment. …

were to reenact Section 302 and provide that the punishment be sentence for imprisonment of death or imprisonment the courts would still award cases.

Punjab, the question that fell appellate court can extend Act, 1958 which had come had been convicted of a criminal of 2:1 answered the question who delivered a majority opinion, the question, the rule of beneficial ex post facto law of the type of

for

the

a

It

of

of

for

for

a

for

the

in

11 of 12

8.2.

reduced punishment unamended

made applicable varied procedure cognizance

the petitioner

9.

05.12.2024,

pass a fresh in terms of weeks of

10.

29.07.2025

Maninder

29954-2025

involved in that case should punishment.

25. xxx xxx

26. In the premises, the Central with the same offence as the 16(1) (a) and provided for a must have the benefit of the reduced When an ex-post facto law can to a person accused of

statute by invoking the rule of to the instant case as well. of giving prior hearing

will apply to the prosecution right of hearing in terms of Section In view thereof, the impugned are set aside directing the Special order after affording an opportunity first proviso to Section 223(1) receiving a certified copy of this Petition stands allowed in the Whether speaking/reasoned Whether reportable

12

be applied to reduce Amendment Act having dealt one punishable under Section reduced punishment, the accused punishment. …

be applied to give the benefit committing an offence under beneficial construction, it can It is accordingly held that to the accused before taking complaint in question, which gives

223 BNSS.

orders, dated 22.11.2024 and Judge under the PMLA of hearing to the petitioner BNSS, within a period of eight order.

aforesaid terms.

(TRIBHUVAN DAHIYA)

JUDGE

: Yes/No : Yes/No the

of

the

be

the

to

12 of 12