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ABHAY S. OKA, UJJAL BHUYAN
Kushal Kumar Agarwal – Appellant
Versus
Directorate of Enforcement – Respondent
ORDER :
ABAHY S. OKA, J.
1. Leave granted.
2. Heard the learned counsel appearing for the appellant and the learned Additional Solicitor General appearing for the respondent.
3. In the present case, a complaint was filed under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as "the PMLA") on August 2, 2024. The appellant is shown as accused in the complaint. The Bhartiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as "the BNSS") came into force on July 1, 2024. Section 223 of the BNSS reads thus:
(1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:
Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purportin
No cognizance of an offence shall be taken by Magistrate without giving accused opportunity of being heard.
The court emphasized that cognizance of an offense cannot be taken without providing the accused an opportunity to be heard, as mandated by Section 223(1) of the BNSS.
The provision requiring an accused to be heard before cognisance is a mandatory, substantive right. Cognisance orders passed without such a hearing are void ab initio, and ministerial registration of....
The requirement to provide an accused an opportunity to be heard before taking cognizance of an offence is a mandatory, substantive right. This procedural mandate applies to all cognizance orders pas....
The court established that a right to hearing under the Bharatiya Nagarik Suraksha Sanhita applies, requiring courts to afford such hearing before taking cognizance of offences against the accused.
A magistrate must adhere to procedural safeguards, including providing the accused a hearing before taking cognizance, as mandated by Section 223 of BNSS; failure to comply renders the cognizance ord....
The court emphasized that under Section 223(1) of BNSS, a Magistrate must examine the complainant and provide the accused an opportunity to be heard before taking cognizance of an offence.
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