The denial of an opportunity for a hearing before taking cognizance vitiates the cognizance order and subsequent proceedings under the Prevention of Money-Laundering Act, constituting a violation of fundamental rights.

JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. The present Criminal Revisions assail an order dated February 15, 2025, whereby the learned Chief Judge, City Sessions Court at Calcutta, acting in the capacity of Special Court under the Prevention of Money-Laundering Act, 2002 (for short “the PMLA”) taking cognizance of offences under Sections 3 and 4, read with Section 70 of the PMLA against each of the petitioners. The petitioners further seek quashing of the proceedings initiated in connection with the complaint, being the ECIR/KLZO-I/10/2023 dated March 24, 2023.

2. Learned senior counsel appearing on behalf of the petitioners contends that the learned Special Judge took cognizance in violation of the First Proviso to Section 223 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (for short “the BNSS”) since no opportunity of hearing was given to any of the petitioners/accused persons prior to taking such cognizance. Learned senior counsel contends that the provision of affording an opportunity of hearing to the accused prior to taking cognizance has been introduced in the new regime of criminal laws after the introduction of the BNSS and was absent in its predecessor-statute, the Code of Criminal Procedure (Cr.P.C.). It is argued that the said provision is mandatory and any contravention of the same leads to curbing the fundamental right to life and personal liberty, guaranteed under Article 21 of the Constitution of India, of the accused.

3. Learned senior counsel cites Kushal Kumar Agarwal v. Directorate of Enforcement [Criminal Appeal No. 2749 of 2025 [Arising out of S.L.P.(Criminal) No. 2766 of 2025], wherein the Hon'ble Supreme Court reiterated the propositions laid down in two earlier pronouncements of Yash Tuteja and another v. Union of India and others , (2024) 8 SCC 465 and Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office , (2024) 7 SCC 61 . In the said judgments, it was laid down that the only mode by which cognizance of an offence under Section 3, punishable under Section 4, of the PMLA can be taken by the Special Court is upon a complaint filed by the authority authorised on this behalf. Section 46 of the PMLA applies the provisions of Cr.P.C. to such proceedings. Once a complaint is filed before the Special Court, the provisions of Sections 200 to 204 of the Cr.P.C. will apply to the complaint. There is no provision in the PMLA which overrides the said provisions of the Cr.P.C. and hence, the Special Court has to apply its mind to the question whether a prima facie case of commission of an offence under Section 3 of the PMLA is made out. It was further observed that the provisions of the Cr.P.C. shall be applicable to such procedure.

4. In Kushal Kumar Agarwal v. Directorate of Enforcement , Criminal Appeal No. 2749 of 2025 [Arising out of S.L.P. (Criminal) No. 2766 of 2025], it was held that a complaint filed by the Enforcement Directorate (ED) shall be governed by Sections 200 to 204 of the Cr.P.C. and, as such, the first proviso to Section 223(1) of the BNSS, which has now replaced the Cr.P.C., and the embargo incorporated therein is to be complied with. In violation of the same, the order taking cognizance has to be set aside.

5. Learned senior counsel for the petitioners also cites several judgments of Division Benches and learned Single Judges of different High Courts, which are mentioned below, in support of the said proposition:

(i) Sri Basanagouda R. Patil v. Sri Shivananda S. Patil, Criminal Petition No. 7526 of 20