Supreme Court on the Right to Be Heard Before Taking Cognizance under the BNSS

The Hon’ble Supreme Court, in Parvinder Singh v. Directorate of Enforcement, 2026 SCC OnLine SC 903, has delivered an important judgment concerning the applicability of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) to proceedings initiated by the Directorate of Enforcement under the Prevention of Money Laundering Act, 2002 (“PMLA”).

The case arose from an ECIR registered against the accused on 24.07.2023, followed by his arrest on 27.04.2024. The Directorate of Enforcement filed its complaint before the Ld. Special Court on 24.06.2024, and the matter was listed for consideration of cognizance on 28.06.2024. However, since the Presiding Officer was on leave, the matter was adjourned to 02.07.2024.

In the intervening period, the BNSS came into force on 01.07.2024, replacing the Code of Criminal Procedure, 1973. Section 223(1) of the BNSS introduced a requirement that, before taking cognizance of a complaint, the Magistrate must provide an opportunity of hearing to the accused.

Despite the change in law, the Ld. Special Court proceeded to take cognizance on 02.07.2024 without hearing the accused. His subsequent application seeking recall of the cognizance order was rejected, and charges were also framed. The accused filed two separate revision petitions before the High Court of Uttarakhand against the Order framing the charges and against the Order taking cognizance. The High Court quashed the charges framed and remanded back the issue to the Ld. Special Court but dismissed the other Revision Petition holding that, since the proceedings had originated under the erstwhile CrPC regime; the requirement under Section 223(1) BNSS would not apply.

The Hon’ble Supreme Court disagreed with the observations made by the High Court of Uttarakhand.

Key Findings

The Apex Court held that registration of an ECIR or filing of the complaint does not determine when the judicial proceedings commenced for the purpose of applying the procedural law. What was relevant was the date on which the Court actually took cognizance. Since cognizance was taken on 02.07.2024, i.e., after the BNSS had come into force, the accused was entitled to the protection of Section 223(1) BNSS.

The Court also rejected the contention that PMLA, being a special legislation, would exclude the application of this procedural safeguard. It noted that the provisions concerning pre-cognizance hearing are connected with the broader powers exercised by Special Courts, including the power to assess a complaint, dismiss a weak complaint or determine whether summons ought to be issued.

Significantly, the Court distinguished administrative or clerical steps from judicial proceedings. The registration and listing of the complaint before 01.07.2024 did not amount to the commencement of an “inquiry” under the old procedural regime.

Most importantly, the Supreme Court characterized the right to be heard before cognizance as a serious and non-negotiable safeguard forming part of a fair trial. The Court held that failure to comply with this requirement renders the resulting cognizance order void from the outset. Consequently, the Supreme Court set aside the High Court's judgment as well as the Special Court's cognizance order and directed the Special Court to hear the accused and determine the question of cognizance afresh.

Significance

The decision is significant for PMLA practitioners as it clarifies the application of the CrPC-to-BNSS transition to pending proceedings and reinforces that procedural safeguards introduced by the BNSS cannot be bypassed merely because the underlying investigation or ECIR predates the new legislation.

The judgment therefore underscores an important principle: the commencement of an investigation or administrative action is distinct from the commencement of judicial proceedings, and the procedural law applicable at the stage of cognizance must be given meaningful effect.