Right to Hearing Before Cognizance: Delhi High Court Upholds Applicability of Section 223 BNSS in PMLA Cases - 2025-08-13

Procedural Fairness: Delhi High Court Reinforces Accused's Right to be Heard Under BNSS

In a significant order clarifying the procedural landscape following the shift from the Code of Criminal Procedure (CrPC) to the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the Delhi High Court has underscored a vital procedural safeguard for the accused. Justice Ravinder Dudeja ruled that trial courts must provide an opportunity of being heard to an accused before taking cognizance of a complaint, including those filed under the Prevention of Money Laundering Act (PMLA).

The Genesis of the Challenge

The case arose from a Prosecution Complaint filed by the Enforcement Directorate (ED) on September 19, 2024. The petitioner, Lakshay Vij, had approached the trial court seeking a pre-cognizance hearing, emphasizing the transition to the new criminal law regime initiated on July 1, 2024. When the trial court rejected this application, asserting that the change in law did not grant the accused the right to be heard at the cognizance stage, the petitioner turned to the Delhi High Court.

The Conflict of Laws: BNSS vs. CrPC

The crux of the matter rested on whether the newly minted provisions of the BNSS—specifically Section 223—applied to PMLA complaints filed after the act’s inception. * Petitioner’s Stand: Counsel argued that because the complaint was filed after July 1, 2024, the BNSS, not the defunct CrPC, governs the procedure. Section 223 of the BNSS mandates that a Magistrate must hear the accused before taking cognizance. * Respondent’s (ED) Stand: While initially contesting the applicability, the ED acknowledged the Supreme Court’s recent ruling in Kushal Kumar Agarwal v. ED , conceding that the legal position regarding the mandatory nature of the hearing was settled.

Legal Analysis: The "Right to be Heard"

The High Court’s analysis centered on the proviso to Section 223(1) of the BNSS. Unlike the previous regime where cognizance was often a purely judicial function completed without the accused's intervention, the BNSS introduces an explicit "embargo" on the court.

Justice Dudeja noted that the Supreme Court, in Kushal Kumar Agarwal , had already clarified that this provision serves as an essential protection against arbitrary initiation of trial proceedings. By integrating the ratios from established Supreme Court jurisprudence, the High Court determined that failure to grant this hearing constitutes a fatal procedural error.

Key Observations

The judgment offers clear guidance on the interpretation of Section 223 BNSS. Key findings included:

• "The proviso to sub-section (1) of Section 223 puts an embargo on the power of the Court to take cognizance by providing that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard."
• "In this case, admittedly, an opportunity of being heard was not given by the learned Special Judge to the appellant before taking cognizance of the offence on the complaint. Only on that ground, the impugned order... will have to be set aside."
• "Since the complaint... has been filed after 01.07.2024, cognizance cannot be taken without conferring an opportunity of hearing to the accused."

The Road Ahead

The High Court ultimately set aside the trial court’s order, directing it to readmit the case and provide the petitioner with a rightful opportunity to be heard before any cognizance is taken. Importantly, the court clarified that this procedural rectification does not affect the merits of any pending bail applications, which are to be handled independently.

For legal professionals, this decision reinforces that the BNSS is not merely a cosmetic update but a fundamental shift in criminal procedure. The requirement for a pre-cognizance hearing is now a non-negotiable step, ensuring that the judicial process begins with the principles of audi alteram partem —listen to the other side—firmly rooted in the initial stages of litigation.