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.

JUDGMENT :

A. BADHARUDEEN, J.

This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [hereinafter referred as ‘BNSS’ for short], to quash all further proceedings in S.C. (PMLA) No.2 of 2025 on the files of the Court of the Special Court (SPE/CBI), Ernakulam, arose out of ECIR/KCZO/07/2020 initiated pursuant to FIR No.V.C.02/2014/SCE of VACB, Special Cell, Ernakulam. The petitioners herein are accused Nos.1 and 2 in the above case.

2. Heard the learned counsel for the petitioners and the learned Standing Counsel appearing for Enforcement Directorate, in detail. Perused the relevant materials available.

3. In this matter, the prosecution allegation is that, the 1^st accused/1^st petitioner, while working as a Government servant during the period from 01.01.2000 to 17.01.2014, amazed assets worth Rs.1,43,58,155/-, which is 113.45% in excess of his known sources of income and thereby committed offences 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 and under Section 4 read with 3 of the Prevention of Money-Laundering Act, 2002 [hereinafter referred as ‘PMLA’ for short] by the accused.

4. According to the learned counsel for the petitioners, in this case, the Special Court took cognizance for the offences punishable under Section 4 read with 3 of PMLA, based on a complaint lodged by the Enforcement Directorate, without issuing notice provided under Section 223 (1) and (2) of the BNSS to the accused. It is also submitted by the learned counsel for the petitioners that, the cognizance was taken even without obtaining sanction under Section 218 of the BNSS. Therefore, the cognizance is illegal and the same is liable to be set aside. In this connection, the learned counsel for the petitioners placed decision of the Apex Court reported in [2025 (4) KHC 559 (SC) : 2025 SCC OnLine SC 1221 : 2025 KHC OnLine 6565 (SC)] Kushal Kumar Agarwal v. Directorate of Enforcement , wherein the facts of the case dealt by the Apex Court read as under:

Enforcement Directorate filed a complaint under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 on 02/08/2024, against the appellant for money laundering offences. Complaint was filed after the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) came into force on 01/07/2024, which replaced the earlier Code of Criminal Procedure, 1973. Special Court took cognizance of the offence without providing the appellant an opportunity of being heard, as mandated under the Proviso to Section 223(1) of the BNSS. Questions that arose for consideration were; whether cognizance of an offence under the PMLA can be taken without complying with the mandatory procedural requirement under Section 223(1) of the BNSS, which requires giving the accused an opportunity of being heard before taking cognizance, and whether this new procedural safeguard introduced in the BNSS applies to money laundering complaints filed by the Enforcement Directorate.

5. Thereafter, allowing the prayer sought for, the Apex Court held in paragraph Nos. 6 and 7 as under:

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 dated 20th April, 2024, will have to be set aside.

6. The learned c