Hear the Accused Before Cognizance: Supreme Court Applies BNSS Section 223 to ED Complaints Under the PMLA

The new criminal procedure code changed one quiet but consequential thing about complaint cases: under the proviso to Section 223(1) BNSS, a magistrate cannot take cognizance of an offence on a complaint without first giving the proposed accused an opportunity of being heard. The question was whether that safeguard reaches money-laundering prosecutions, where the ED proceeds by complaint under Section 44(1)(b) PMLA — and what happens to complaints born of investigations that began before the BNSS commenced.

The Special Court had taken cognizance of a complaint against the appellant on 20 November 2024 without any such hearing. He challenged the order.

The Key Question Before the Court

Does the BNSS pre-cognizance hearing apply to ED complaints under the PMLA — and from when?

The Complaint's Date, Not the Investigation's, Decides

Justice Oka's judgment holds that the procedural regime is fixed by the date the complaint is filed: Chapter XVI of the BNSS, Sections 223 to 226, governs every complaint filed on or after 1 July 2024, even if the investigation commenced earlier under the CrPC. Since Section 65 PMLA imports the general criminal procedure except where inconsistent, the Section 223(1) proviso applies to ED complaints under Section 44(1)(b): the Special Court must give the proposed accused an opportunity of being heard before taking cognizance.

Cognizance Without Hearing Cannot Stand

The consequence followed directly: the cognizance order of 20 November 2024, passed without affording the hearing, was set aside — solely for non-compliance with the proviso, with no comment on the complaint's merits. The appellant was directed to appear before the Special Court for the pre-cognizance hearing, after which the court would proceed afresh in accordance with law.

What the Court Actually Held

• Chapter XVI BNSS (Sections 223–226) applies to complaints filed on or after 1 July 2024, regardless of when the investigation began.
• The Section 223(1) proviso's pre-cognizance hearing applies to ED complaints under Section 44(1)(b) PMLA.
• A cognizance order passed without that hearing is unsustainable; the order of 20 November 2024 was set aside.
• The matter returns to the Special Court for the hearing and fresh consideration.

Why This Judgment Matters

• It gives every person named in a post-July 2024 ED complaint a voice before the prosecution formally begins — a first in PMLA procedure.
• It settles the transition rule for the new codes in complaint cases: the complaint's filing date selects the regime.
• Cognizance orders across special statutes prosecuted by complaint — not just PMLA — must now build in the Section 223 hearing.
• It adds a new, early checkpoint to the money-laundering process, complementing the disclosure and arrest safeguards of the same term.

What Should Advocates Take Away From the Judgment?

For Defence Counsel

• For any complaint filed on or after 1 July 2024, check the docket: cognizance without a Section 223(1) hearing is a self-contained ground to set it aside — and the hearing itself is an early opportunity to contest the complaint.

For the ED and Special Courts

• Build the pre-cognizance hearing into the complaint workflow; skipping it costs the cognizance order, whatever the complaint's strength.

Key Takeaways

Frequently Asked Questions

A BNSS innovation: a magistrate (here, the Special Court) cannot take cognizance of an offence on a complaint without first giving the proposed accused an opportunity of being heard.

No. The regime is selected by the complaint's filing date: complaints filed on or after 1 July 2024 follow the BNSS, whatever the investigation's vintage.

No. The complaint survives; the Special Court holds the pre-cognizance hearing and then decides afresh whether to take cognizance.

Conclusion