Supreme Court Holds Magistrate Must Hear Accused Before Taking Cognizance Under Section 223 BNSS

A bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan heard a criminal appeal arising from Special Leave Petition (Criminal) No. 2766 of 2025, challenging the Special Court's order taking cognizance on a complaint filed by the Enforcement Directorate under Section 44(1)(b) of the PMLA. Leave was granted and the court heard the appellant's counsel and the Additional Solicitor General.

The Court set aside the impugned order dated 20th April, 2024, solely on the ground that the Special Judge did not comply with the proviso to sub‑section (1) of Section 223 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), which required giving the accused an opportunity of being heard before taking cognizance. The Court observed that because the complaint was filed after the BNSS came into force on 1st July, 2024, Section 223 applied. The Court, in its reasoning, observed: "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." The Bench directed the appellant to appear before the Special Court on 14th July, 2025, so that the opportunity of being heard could be given, and clarified that "no further notice shall be issued by the Special Court to the appellant." The Court expressly stated that it had "not expressed any opinion on the merits of the complaint" and kept open certain contentions raised by the Additional Solicitor General for consideration by the Special Court.

Background: A complaint under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 was filed on 2nd August, 2024, naming the present appellant as an accused. The BNSS had come into force on 1st July, 2024; Section 223 of the BNSS, corresponding to Section 200 of the Code of Criminal Procedure, 1973, prescribed that a Magistrate taking cognizance on complaint shall "examine upon oath the complainant and the witnesses" and included a proviso that "no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard." The Special Judge took cognizance on the complaint without affording the accused that opportunity. The Enforcement Directorate relied on the settled position of this Court that complaints under Section 44 of the PMLA were governed by Sections 200 to 204 CrPC, a view reflected in Yash Tuteja v. Union of India and Tarsem Lal v. Enforcement Directorate, and argued scope limitations on the hearing required by the proviso and that cognizance attached to the offence and not the offender. The Supreme Court noted these submissions but declined to decide them in the present appeal, leaving them open for the Special Court. Consequently, the Court set aside the order of cognizance dated 20th April, 2024, partly allowed the appeal, and directed a fresh opportunity to be afforded to the accused on 14th July, 2025, with no further notice to be issued by the Special Court. The Court did not express any view on the merits of the underlying complaint.

Case No.: 2025 INSC 760 (Criminal Appeal No. 2749 of 2025; arising out of S.L.P.(Criminal) No. 2766 of 2025) Case Title: Kushal Kumar Agarwal v. Directorate of Enforcement Appearances: For the Petitioner(s): [Learned counsel for the appellant (name not specified in the order)] For the Respondent(s): Mr. Raju, Additional Solicitor General