Case Number
CRIMINAL APPEAL/2749/2025 (Arising from S.L.P.(Criminal)/2766/2025)
Case Title
Kushal Kumar Agarwal vs. Directorate of Enforcement
Headnote
The Supreme Court held that the proviso to Section 223(1) of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), which mandates that an accused must be given an opportunity of being heard before a Magistrate takes cognizance of an offence on a complaint, is a mandatory procedural requirement. The Court applied this provision to a complaint filed by the Enforcement Directorate under the Prevention of Money Laundering Act, 2002 (PMLA). Since the Special Judge had taken cognizance of the complaint without providing the appellant-accused an opportunity to be heard, the Supreme Court set aside the cognizance order. The matter was remitted back to the Special Court to provide a hearing to the appellant as required by the new law.
Short Summary
The Supreme Court set aside a cognizance order in a PMLA case because the Special Judge failed to follow the new procedural law under the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS). The Court ruled that Section 223 of the BNSS, which requires giving an accused a hearing before taking cognizance on a complaint, is mandatory. Since the appellant was not heard, the order was quashed, and the case was sent back to the Special Court for a fresh hearing in compliance with the law.
Court
Supreme Court of India
Type
Order
SCR Citation
NA
Neutral Citation
2025 INSC 760
Disposal Nature
Appeal Partly Allowed
Case Type
CRIMINAL APPEAL
Law Type
Criminal Law, Procedural Law, Economic Offences Law
Judgment Authored by
Hon’ble Justice Abhay S. Oka*
Hon’ble Justice Ujjal Bhuyan
Date of Judgment
May 09, 2025
Case Start Date
NA
Case Arising From
The appeal challenges an order of a Special Judge dated November 20, 2024. The Special Judge had taken cognizance of a complaint filed by the Directorate of Enforcement against the appellant under the Prevention of Money Laundering Act, 2002 (PMLA). The appellant challenged this order on the ground that the procedure laid down in the new Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), which came into force on July 1, 2024, was not followed. Specifically, the appellant argued that he was not given an opportunity of being heard before cognizance was taken, as required by Section 223 of the BNSS.
Background and Facts
The Directorate of Enforcement filed a complaint against the appellant, Kushal Kumar Agarwal, on August 2, 2024, under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 (PMLA). By this time, the new criminal procedure code, the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), had come into force on July 1, 2024.
Section 223 of the BNSS introduces a new requirement that was not present in the old Code of Criminal Procedure, 1973 (CrPC). A new proviso in Section 223(1) of the BNSS states that a Magistrate cannot take cognizance of an offence based on a complaint without first giving the accused an opportunity of being heard. In this case, the Special Judge took cognizance of the PMLA complaint against the appellant without providing him with such a hearing. The appellant challenged this procedural lapse before the Supreme Court.
Timeline
- July 1, 2024: The Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) came into force.
- August 2, 2024: The Directorate of Enforcement filed a complaint against the appellant under the PMLA.
- November 20, 2024: The Special Judge took cognizance of the complaint without hearing the appellant.
- May 09, 2025: The Supreme Court set aside the cognizance order and directed a fresh hearing.
Parties Involved
- Appellant: Kushal Kumar Agarwal
- Respondent: Directorate of Enforcement
Procedural History
- Lower Court/Subordinate court/Tribunals Decisions: The Special Judge took cognizance of the PMLA complaint filed by the Directorate of Enforcement.
- Appeals: The appellant directly challenged the cognizance order in the Supreme Court via a Special Leave Petition, which was converted into a Criminal Appeal.
Issues Framed
Not explicitly framed, but the central issue is whether the mandatory requirement of providing an opportunity of being heard to the accused under the proviso to Section 223(1) of the BNSS, 2023, applies to a complaint filed by the Enforcement Directorate under the PMLA after the BNSS came into force.
Areas of Debate
- The applicability of the new procedural requirements under the BNSS to special statutes like the PMLA.
- Whether the failure to provide a pre-cognizance hearing to the accused, as mandated by Section 223 of the BNSS, vitiates the cognizance order.
Cases Cited by Petitioner/Appellant
NA
Cases Cited by Respondent/Defendant
NA
Acts/Rules/Orders Referred
- Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS)
- Type: Act
- Section 223: This section, corresponding to Section 200 of the old CrPC, deals with the examination of a complainant by a Magistrate. The crucial part is the new proviso to sub-section (1), which states: “Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard”. The Court held that this provision is mandatory and applies to PMLA complaints filed after July 1, 2024.
- Prevention of Money Laundering Act, 2002 (PMLA)
- Type: Act
- Section 44(1)(b): This section allows a Special Court to take cognizance of an offence under the PMLA upon a complaint made by an authorized officer. The Supreme Court affirmed that proceedings under this section are governed by the general criminal procedure, now under the BNSS.
- Code of Criminal Procedure, 1973 (CrPC)
- Type: Act
- Section 200: The corresponding provision in the old code, which did not contain the proviso requiring a pre-cognizance hearing for the accused.
Acts/Rules/Orders Governing the Case
- Bhartiya Nagarik Suraksha Sanhita, 2023
- Prevention of Money Laundering Act, 2002
Literature Citation
NA
Appearances
- Advocates: Not mentioned, but referred to as “learned counsel” for the appellant and “learned Additional Solicitor General” for the respondent.
- Witnesses: NA
- Other Persons: NA
Prayer
The appellant prayed for the quashing of the order by which the Special Judge took cognizance of the PMLA complaint.
Evidence & Findings
NA
Petitioner/Appellant/Plaintiff/Accused Arguments
The appellant argued that the Special Judge’s order taking cognizance was legally invalid because it was passed in violation of the mandatory procedural requirement under the proviso to Section 223(1) of the BNSS. Since the complaint was filed after the BNSS came into force, the new law was applicable, and he should have been given an opportunity to be heard before cognizance was taken.
Respondent/Defendant/Opponent/State Arguments
The Additional Solicitor General, appearing for the Directorate of Enforcement, made two submissions:
- The scope of the pre-cognizance hearing for the accused should be limited to examining whether a case is made out based on the complaint and its accompanying documents.
- Since cognizance is taken of the “offence” and not the “offender,” once cognizance is taken after a hearing, there would be no need for another hearing if supplementary complaints are filed later for the same offence.
The Supreme Court kept these contentions open to be decided at a later stage, as they did not arise in the present appeal.
Ratio Decidendi
- The procedural requirements laid down in the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) apply to complaints filed under special statutes like the Prevention of Money Laundering Act, 2002 (PMLA), if the complaint is filed on or after the date the BNSS came into force (July 1, 2024).
- The proviso to Section 223(1) of the BNSS, which prohibits a Magistrate from taking cognizance of an offence on a complaint without giving the accused an opportunity of being heard, is a mandatory procedural safeguard.
- A failure to comply with this mandatory requirement vitiates the order of cognizance, rendering it liable to be set aside.
Final Decision
The appeal is partly allowed. The impugned order of the Special Judge dated November 20, 2024, is set aside solely on the ground of non-compliance with the proviso to Section 223(1) of the BNSS. The appellant is directed to appear before the Special Court on July 14, 2025, to be given an opportunity of being heard before a fresh decision on cognizance is taken.
Legal Jargons and Maxims
- Cognizance: The act of a court or judge taking judicial notice of a matter, which is the first step towards initiating a trial.
- Proviso: A clause in a statute that introduces a condition or limitation to the main provision.
- Embargo: A legal prohibition or restraint on a particular action.
Exhibits
NA