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.

JUDGMENT :

TRIBHUVAN DAHIYA, J.

The petition has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘ BNSS ’), for setting aside order dated 22.11.2024, Annexure P-6, whereby Special Judge [under the Prevention of Money Laundering Act, 2002 (for short, ‘PMLA’)]-cum- Sessions Judge, Gurugram, dismissed the petitioner's application filed under Section 223 read with Section 511 of the seeking an opportunity of hearing before taking cognizance of offences alleged in prosecution complaint, dated 27.06.2024, filed against him. Prayer has also been made to set aside order dated 05.12.2024, Annexure P-8, whereby the Special Judge proceeded to take cognizance of the offences against the petitioner and summoned him along with other accused to face trial for commission of offences under Section 3 read with Section 70 punishable under Section 4 of the PMLA in case COMA-9-2024 titled Directorate of Enforcement v. Sikander Singh and others arising out of ECIR/GNZO/20/ 2021, dated 16.11.2021.

2. As per facts apparent on record, in brief, an enquiry, ECIR/GNZO/20/2021 dated 16.11.2021, pertaining to the aforementioned offences under the PMLA was registered by the respondent, pursuant whereof the petitioner was arrested in the case on 30.04.2024. The prosecution complaint in the matter under Sections 44 and 45 of the PMLA was presented before the Additional Sessions Judge/Vacation Judge, Gurugram, on 27.06.2024. As it was required to be heard by the Sessions Judge, Gurugram, being the Special Judge under the PMLA, the Additional Sessions Judge directed to check and register the complaint, and sent the file to the Sessions Judge immediately for 04.07.2024. The case was taken up by the Sessions Judge/Special Judge on 31.07.2024, but was not heard and adjourned to 14.08.2024 for consideration. Thereafter also, it was adjourned on a few more dates for one reason or another and hearing could not take place, as apparent from the short orders placed on record as Annexure P-4.

2.1. In the meanwhile, the BNSS came into force with effect from 01.07.2024. In terms of proviso to Section 223 thereof, a right of hearing has been provided to the accused at the time of taking cognizance of offence. Accordingly, the petitioner moved an application under before the Special Judge seeking an opportunity of hearing before taking cognizance of the complaint dated 27.06.2024.

2.2. The Special Judge heard arguments on the application, and dismissed the same vide impugned order dated 22.11.2024. It was held that the prosecution complaint was filed on 27.06.2024, i.e., before coming into force of the BNSS and, accordingly, provisions of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) will be applicable which do not provide any right of hearing to the accused at the time of taking cognizance. Thereafter, the Special Judge heard the complaint and finding a prima facie case proceeded to take cognizance of the offences against the accused/petitioner vide impugned order dated 05.12.2024.

3. In this background, the solitary submission made by learned senior counsel for the petitioner is that the impugned order is without jurisdiction being violative of proviso to Section 223 of the BNSS as the petitioner has not been afforded an opportunity of hearing in terms thereof before taking cognizance of the offences against him. The mandate of proviso to has to be complied with. The Special Court has gone patently wrong in holding that the prosecution complaint was filed on 27.06.2024, as mere presentation of the complaint on that date cannot be construed as filing of the complaint. Judicial mind of the