In a ruling with far-reaching consequences for complaint-based criminal prosecutions, the Supreme Court has held that courts cannot take cognizance of an offence under the Bharatiya Nagarik Suraksha Sanhita (BNSS) without first giving the accused an opportunity to be heard where the law mandates it. Any order passed in breach of that requirement, the Court said, is legally non-existent from the very beginning.
The judgment came in a case involving proceedings initiated by the Enforcement Directorate under the Prevention of Money Laundering Act (PMLA). A Bench of Justices M.M. Sundresh and N. Kotiswar Singh allowed the appeal filed by Parvinder Singh and struck down both the Uttarakhand High Court order and the Special Court’s decision taking cognizance of the ED complaint.
At the centre of the dispute was the first proviso to Section 223(1) of the BNSS. The provision requires a court to hear the accused before taking cognizance in a complaint case. The Supreme Court ruled that this safeguard is not a procedural formality but a substantive right tied directly to the guarantee of fair trial under Article 21 of the Constitution.
The Bench underlined that the legislature’s use of the word “shall” leaves no room for discretion. According to the Court, once the statute mandates a hearing, bypassing that requirement contaminates the very foundation of the proceedings.
The prosecution complaint in the money laundering case had been filed on June 24, 2024, a few days before the BNSS came into force on July 1, 2024. However, the Special Court took cognizance on July 2, after the new law had already become operational. The accused was not heard before the order was passed.
The Enforcement Directorate argued that since the complaint itself had been filed under the old Code of Criminal Procedure regime, the newly enacted BNSS could not apply. It also claimed that the accused had failed to show how the absence of a hearing caused any prejudice.
The Supreme Court rejected both arguments.
The Bench clarified that complaint procedures under the general criminal law continue to apply to PMLA prosecutions unless there is a direct inconsistency with the special statute. Referring to earlier decisions including Tarsem Lal v. ED, Yash Tuteja v. Union of India, and Kaushal Kumar Agarwal v. ED, the Court reiterated that once a complaint is filed before the Special Court under the PMLA, the procedural framework governing complaint cases becomes applicable.
On the question of prejudice, the Court drew a sharp distinction between an irregularity and an illegality. It held that the denial of a mandatory hearing strikes at the root of jurisdiction itself. Therefore, an accused is not required to separately prove harm or prejudice flowing from such non-compliance.
The Bench also examined the savings clause under Section 531(2)(a) of the BNSS. The ED had relied on the provision to argue that the old CrPC continued to govern the matter because the complaint predated the new law.
The Court, however, interpreted the clause narrowly. It observed that the purpose of the savings provision is to avoid disruption in proceedings already underway under the previous legal regime. But where no inquiry, trial, or other substantive proceeding had commenced before the BNSS came into effect, the protections under the new code would apply.
The ruling is expected to significantly impact complaint-based prosecutions, especially those pursued by investigative agencies under special statutes, by reinforcing that procedural safeguards under the BNSS are enforceable rights and not optional formalities.
