The Rights of the Accused: Supreme Court Mandates Pre-Cognizance Hearings Under BNSS

In a pivotal ruling that reinforces the constitutional protections of the accused in money laundering cases, the Supreme Court of India has held that a Court of Session or Special Court cannot take cognizance of an offence under the Prevention of Money Laundering Act (PMLA) post the commencement of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, without first granting the accused an opportunity to be heard.

The judgment, delivered by a bench of Justice M.M. Sundresh and Justice Nongmeikapam Kotiswar Singh, resolves a critical procedural ambiguity regarding cases transitioning from the old Code of Criminal Procedure (CrPC) to the newly enacted BNSS.

The Procedural Backstory The dispute originated from a complaint filed by the Directorate of Enforcement (ED) against Parvinder Singh on June 24, 2024. While the complaint reached the Special Court before the July 1, 2024, implementation of the BNSS, the formal act of taking cognizance occurred on July 2, 2024—one day after the new procedural law had taken effect.

The Special Court, followed by the Uttarakhand High Court, had initially dismissed the appellant’s plea to recall the cognizance order, arguing that the proceedings were saved by the transitionary provisions of Section 531(2)(a) of the BNSS. The state contended that the mere filing of the complaint constituted an "inquiry" that preserved the application of the old CrPC regime.

Arguments: Ministerial Act vs. Judicial Inquiry The Enforcement Directorate’s counsel, Additional Solicitor General (ASG) S.V. Raju, argued that the Special Court was effectively already seized of the matter through ministerial actions (numbering the complaint), thereby invoking the savings clause.

Conversely, the appellant’s counsel emphasized that cognizance is a distinct judicial act requiring the application of the mind. Under the first proviso to Section 223(1) of the BNSS, the legislator has introduced a mandatory "opportunity to be heard" for the accused at the time of taking cognizance—an essential facet of the right to a fair trial enshrined under Article 21 of the Constitution.

Legal Analysis: The Threshold of Cognizance The Supreme Court dismantled the state's contention, clarifying that the mere registration or numbering of a complaint is a ministerial act. Relying on the precedent set in Hardeep Singh vs. State of Punjab , the Court held that these preliminary steps do not constitute an "inquiry" as defined under Section 2(1)(k) of the BNSS, as there is no application of the judicial mind before the stage of cognizance.

The Court asserted that because the cognizance order was passed on July 2, 2024, the BNSS was already in full force. The failure to comply with the proviso to Section 223(1) was not merely a technical irregularity but an illegality that effectively "vitiated" the mandate of the entire proceeding.

Key Observations The judgment underscores the importance of procedural rigor in modern criminal practice. Highlighting the mandatory nature of the accused's right to be heard, the Court observed:

  • "The word 'shall' occurring in the said proviso has to be construed to be mandatory in nature, which enures to the benefit of an accused."
  • "Resultantly, cognizance of an offence taken by a Court without due compliance of the aforestated proviso would be void ab initio ."
  • "A mere ministerial act cannot be termed as an 'inquiry' under Section 2(1)(k) of the BNSS . Taking cognizance is nothing but an application of judicial mind."
  • "The mandate of a legislation which ensures the right of an accused to a fair trial, whose liberty is at stake, cannot be dispensed with."

The Verdict and Its Implications The Supreme Court set aside the High Court’s judgment and the Special Court's order dated July 2, 2024. The Special Court has been directed to revisit the matter and afford the appellant an opportunity of hearing, to be completed within eight weeks.

This ruling serves as a stern reminder to subordinate courts that transitionary law requires careful adherence to new protections. By safeguarding the procedural rights of the individual, the Supreme Court has clarified that even in specialized statutes like the PMLA, the evolution of criminal law toward a more "citizen-centric" framework as seen in the BNSS must be respected by the judiciary.