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 a complaint does not constitute the commencement of a judicial inquiry.

JUDGMENT :

M. M. Sundresh, J.

1. Leave granted.

2. The present appeal has been preferred against the judgment dated 19.05.2025 passed by the High Court of Uttarakhand wherein, an issue with respect to the scope and applicability of the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as the “BNSS”) had arisen, while dealing with a case where the prosecution complaint under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the “PMLA”) had been filed prior to the date of commencement of the .

BRIEF FACTS:

3. An ECIR was registered by the respondent against the appellant being ECIR/DNSZO/04/2023 on 24.07.2023, pursuant to which he was arrested on 27.04.2024. Within two months from the date of the arrest, a prosecution complaint was duly filed by the respondent on 24.06.2024, invoking Sections 44 and 45 of the PMLA for the offences under Section 3 read with Section 4 of the PMLA before the designated Special Court. On the very same day, the Special Court issued a direction to register the complaint so filed as a miscellaneous case and, thus, fixed it for hearing on cognizance on 28.06.2024.

4. When the case came up for hearing on the said date, it was once again fixed for hearing on cognizance on 02.07.2024 since the Presiding Officer was on recess. On behalf of the respondent, the learned Special Public Prosecutor had appeared, and the appellant was produced from judicial custody through video conferencing. Within a few days thereafter, the erstwhile Code of Criminal Procedure, 1973, (hereinafter referred to as the “CrPC”) was replaced by the BNSS with effect from 01.07.2024. When the case came up for hearing on 02.07.2024, the Special Court took cognizance of the offence in the presence of the learned Special Public Prosecutor and the legal advisor who had appeared on behalf of the respondent, and the appellant who was once again produced in judicial custody from the district jail. The miscellaneous case registered earlier was re-registered as Special Sessions Trial No. 28 of 2024.

5. The following is the conclusion arrived at by the Special Court upon taking cognizance:

“6….From the perusal of the complaint, it is clear that in the present case, sufficient material is available to take cognizance of Section 3 read with Section 4 of the Prevention of Money Laundering Act against the accused Parvinder Singh. Accordingly, cognizance is taken of Section 3 read with Section 4 of the Prevention of Money Laundering Act against the accused Parvinder Singh.”

6. An application for recall of the order dated 02.07.2024 was filed before the learned Special Court on 24.12.2024, inter alia, alleging that the mandate of Section 223 of the BNSS, with specific reference to the first proviso to sub-section (1) had not been complied with, as the appellant was not given an opportunity of hearing before the Special Court while taking cognizance. The said application was dismissed by the Special Court, vide order dated 22.03.2025, holding that the filing of the application was merely a dilatory tactic employed by the appellant and that once cognizance had been taken, the same Court cannot reconsider it. Further, the Special Court, vide the said order, also framed the charges against the appellant under Section 3 read with Section 4 of the PMLA and put up the case for recordin