Summary
A complaint by the Enforcement Directorate under Section 44(1)(b) of the PMLA filed after 1 July 2024 is governed by Section 223 of the BNSS, whose first proviso bars a Magistrate from taking cognizance without first giving the accused an opportunity of being heard. As the Special Judge admittedly took cognizance without hearing the appellant, the order taking cognizance was set aside on that ground alone and the appellant was directed to appear before the Special Court for that hearing.
Issues
- Whether a complaint filed by the Enforcement Directorate under Section 44(1)(b) of the PMLA after 1 July 2024 is governed by Section 223 of the BNSS rather than Section 200 of the CrPC.
- Whether cognizance taken on such a complaint without giving the accused an opportunity of being heard, as required by the first proviso to Section 223(1) of the BNSS, can be sustained.
Provisions considered
- Section 223(1), first proviso, Bharatiya Nagarik Suraksha Sanhita, 2023The Court quoted Section 223 and read its first proviso as an embargo on the power to take cognizance: no cognizance of an offence on a complaint may be taken without giving the accused an opportunity of being heard. Since the complaint was filed after the BNSS came into force on 1 July 2024, the proviso applied and its admitted non-compliance vitiated the order taking cognizance. (¶¶ 3, 5, 6, 7, 10, 12)
- Section 200, Code of Criminal Procedure, 1973Section 223 of the BNSS corresponds to Section 200 of the CrPC, but Section 200 contains no proviso requiring the accused to be heard before cognizance; earlier decisions holding that PMLA complaints are governed by Sections 200 to 204 CrPC therefore translate into Chapter XVI (Sections 223 to 226) of the BNSS for complaints filed after 1 July 2024. (¶¶ 4, 5)
- Section 44(1)(b), Prevention of Money Laundering Act, 2002The complaint against the appellant was filed under this provision. Following Yash Tuteja and Tarsem Lal, such a complaint is governed by the general complaint procedure of the criminal procedure code in force, now Sections 223 to 226 of the BNSS. (¶¶ 3, 5)
Held
- A complaint by the Enforcement Directorate under Section 44(1)(b) of the PMLA is governed by the complaint procedure of the criminal procedure code (Sections 200 to 204 CrPC, as held in Yash Tuteja and Tarsem Lal); consequently Chapter XVI of the BNSS (Sections 223 to 226) applies to such a complaint filed after 1 July 2024. (¶ 5)
- The first proviso to Section 223(1) of the BNSS, which has no counterpart in Section 200 of the CrPC, puts an embargo on the power of the Court to take cognizance: no cognizance of an offence on a complaint can be taken without giving the accused an opportunity of being heard. (¶¶ 4, 6)
- Where it is admitted that the Special Judge took cognizance on the PMLA complaint without giving the accused an opportunity of being heard, the order taking cognizance must be set aside on that ground alone. (¶¶ 7, 10)
- The respondent's contentions that the hearing under the proviso is confined to whether a case is made out on the complaint and the documents filed with it, and that no fresh hearing is required when supplementary complaints are filed because cognizance is taken of the offence and not the offender, did not arise at this stage and were expressly left open to be raised before the Special Court; no opinion was expressed on the merits of the complaint. (¶¶ 8, 9, 11)
Result
Appeal partly allowed. The Special Judge's order taking cognizance was set aside solely for non-compliance with the first proviso to Section 223(1) of the BNSS. The appellant was directed to appear before the Special Court on 14 July 2025 to be heard under the proviso, with no further notice to be issued; the merits and the respondent's contentions were kept open.