The Right to be Heard: Patna High Court Upholds Mandatory Pre-Cognizance Hearings Under BNSS

In a significant ruling that reinforces procedural safeguards for accused persons, the Patna High Court has set aside a Special Court’s order of cognizance in a Prevention of Money Laundering Act (PMLA) case. Justice Arun Kumar Jha declared that under the newly enacted Bhartiya Nagarik Suraksha Sanhita ( BNSS ), the requirement for a pre-cognizance hearing is not merely a formality but a mandatory threshold the judiciary must cross.

A Dispute Over Due Process

The case began when the petitioner, Pushpraj Bajaj, challenged an order from the Special Judge (PMLA) in Patna. The Special Court had taken cognizance of alleged offences under Sections 3 and 4 of the PMLA without providing the petitioner an opportunity to be heard.

The petitioner, who had been arrested in October 2024 following an investigation into ammassed assets involving public servant Sanjeev Hans, found himself named as an accused in a Prosecution Complaint filed by the Enforcement Directorate. The core of his challenge rested on the interpretation of Section 223 of the BNSS —the successor to the now-repealed Code of Criminal Procedure.

Arguments from the Bench and Bar

The petitioner’s counsel, Mr. Madhav Khurana, argued that the Special Court had bypassed the express mandate of the BNSS . He cited the Supreme Court’s recent decision in * Kushal Kumar Agrawal vs. Directorate of Enforcement *, emphasizing that the proviso to Section 223 (1) of the BNSS creates an "embargo" on the court's power to take cognizance in the absence of an opportunity for the accused to be heard.

Conversely, the Directorate of Enforcement contended that the petitioner suffered no prejudice. They argued that he had already been subjected to rigorous scrutiny under Section 50 of the PMLA and had ample opportunity to present his side during bail proceedings. They urged the Court to treat the omission as a mere "procedural irregularity" that did not vitiate the proceedings.

The Court’s Reasoning

Justice Arun Kumar Jha dismissed the argument that pre-cognizance hearings are optional or can be deemed "cured" by subsequent stages like framing of charges. The Court noted that when a statute prescribes a manner for a judicial act, it must be performed in that exact manner.

The judgment emphasized that the law as clarified by the Supreme Court is the law from its inception, rejecting the notion that the BNSS provisions and their interpretations have only prospective applicability.

Key Observations

The judgment provides a stern reminder of the judiciary's duty to adhere to statutory mandates:

• "The law is there and it is to be applied in the light of its plain meaning and purport... There cannot be two laws in operation side by side, one prior to the interpretation by the Hon’ble Supreme Court and the other after the interpretation."
• "If a statute provides for a thing to be done in a particular manner, it must be done in that manner or not at all."
• "The legislature in its wisdom provided for a pre-cognizance hearing and if the same was not given to the petitioner, no amount of prior opportunity could cure such defect."
• "Denial of right of prior hearing, as enumerated in the first proviso to Section 223 of the BNSS , is sufficient to vitiate the order taking cognizance, without any further requirement on the part of the accused to prove prejudice."

Implications for Future Trials

The Patna High Court’s decision is a procedural landmark. By setting aside the cognizance order and remanding the matter to the Special Court for a fresh decision, the High Court has signaled that the "due process of law" remains the bedrock of criminal proceedings.

For the Directorate of Enforcement and other investigative agencies, the message is clear: strict procedural compliance is no longer discretionary. Courts must now ensure that the accused is heard before the machinery of trial is set in motion, safeguarding the principles of natural justice within the rigorous framework of the PMLA.