Back
DELHI HIGH COURT
Ravinder Dudeja, J.
Lakshay Vij – Petitioner
versus
Directorate of Enforcement
Through Its Director – Respondent
Crl.M.C. 246 of 2025 and Crl.M.A. 1253 of 2025 Stay, Crl.M.A. 1254 of 2025
Decided on 13.8.2025
For the Petitioner: Mr. Vikas Pahwa, Sr. Adv. with Mr. Prabhav Ralli, Ms. Sanskriti Shakuntala Gupta, Mr. Dev Vrat Arya, Ms. Deeya Mittal, Mr. Samraat Saxena, Advs.
For the Respondent:Mr. Zoheb Hossain, Spl. Counsel for ED with Mr. Vivek Gurnani, Panel Counsel, Mr. Kartik Sabharwal, Mr. Pranjal Tripathi and Mr. Kanishk Maurya, Advocates
IMPORTANT POINT
Pre-cognizance hearing – Cognizance cannot be taken without conferring opportunity of hearing to accused.
Headnote:
Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 223 and 528 – Prevention of Money Laundering Act, 2002 – Sections 3 and 4 – Pre-cognizance hearing – Cognizance cannot be taken without conferring opportunity of hearing to accused – Impugned order dated passed by Special Judge, dismissing application of petitioner under Section 223 of BNSS, 2023, seeking hearing at the time of taking cognizance of complaint filed by Enforcement Directorate, cannot be sustained, as it failed to appreciate applicability of Section 223 of BNSS, 2023 to a prosecution complaint filed under Prevention of Money Laundering Act, 2002 – Impugned order set aside – Trial Court directed to afford petitioner opportunity to be heard before taking cognizance in terms of proviso to Section 223 BNSS, 2023 and to proceed thereafter in accordance with law. (Paras 8, 9 and 10)
Result: Petition allowed.
ORDER
The present Petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) assails the impugned order dated 04.01.2025 passed by the Ld. ASJ, Central, Rouse Avenue Courts, Delhi in Ct. Case No. 25/2024 titled “Directorate of Enforcement vs. Lakshay Vij & Ors.” arising out of ECIR No. DLZO-I/50/2023 under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (“PMLA”).
2. Pursuant to the filing of the Prosecution Complaint dated 19.09.2024, the Petitioner had moved an Application seeking a pre-cognizance hearing in terms of the proviso to Section 223 BNSS, which was rejected by the Ld. Trial Court. It is submitted that the said order fails to appreciate the applicability of Section 223 BNSS to prosecution complaints under the PMLA, thereby constraining the Petitioner to seek quashing of the same before this Court.
3. Mr. Vikas Pahwa, learned senior counsel for the petitioner submitted that, in terms of the Ministry of Home Affairs notification dated 23.02.2024, the BNSS came into force on 01.07.2024, and since the Prosecution Complaint in the present case was filed on 19.09.2024, cognizance thereof must be governed by BNSS provisions rather than the CrPC, 1973. The Enforcement Directorate’s Prosecution Complaint is not a final report under Section 193(3) BNSS but squarely falls within the ambit of Section 223 BNSS.
4. It is further submitted that Section 531 BNSS, being a saving clause, applies only to pending investigations, appeals, trials, or inquiries as of 01.07.2024, and not to fresh complaints filed thereafter. It is also relevant that the petitioner’s arrest and remand occurred after 01.07.2024, further confirming the applicability of BNSS.
5. Mr. Hossain, learned special counsel for the Directorate of Enforcement submits that on law what has been submitted in respect of the applicability of the ratio of judgment in Kushal Kumar Agarwal v. ED, 2025 SCC OnLine SC 1221 of the Supreme Court is not doubted. He also submits that since the complaint was filed by the Enforcement Directorate subsequent to 01.07.2024 when the BNSS, 2023 came into effect, the present petition may be disposed of in terms of the judgment of the Supreme Court in Kushal Kumar Agarwal (supra). However, he requests that the pending bail application if any filed on behalf of the petitioner be considered on its own merits.
6. In the present case, the prosecution complaint was filed on 19.09.2024. The BNSS, 2023 came into force on 01.07.2024. The Supreme Court in the case of Yash Tuteja Vs. Union of India, 2024 SCC Online SC 533 and Tarsem Lal Vs. Enforcement Directorate, (2024) 7 SCC 61, has taken the view that a complaint filed by the Enforcement Directorate under Section 44 (1) (b) of the PMLA will be governed by Section 200 to 204 of the Cr.PC. Thus, Section 223 of the BNSS, which corresponds to Section 200 Cr.PC, will also apply to a complaint under Section 44 of the PMLA, filed after 01.07.2024. Section 223, BNSS reads as under:-
“Section 223. Examination of complainant.
(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 purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212:
Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the
