Parvinder Singh vs Directorate of Enforcement

Held: Though the complaint under the PMLA was filed earlier, the cognizance was only taken subsequently, on 02.07.2024, by which time the BNSS had come into force – Admittedly, the appellant has not been heard at the time of taking cognizance – 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 – Thus, the contention of the ASG that prejudice caused due to non-hearing at the stage of cognizance will have to be shown by the accused cannot be accepted, as it is not a mere irregularity that would attract either s.506 or 511 of the BNSS, but is an illegality that would vitiate the very proceedings – The views expressed by the High Court are, therefore, liable to be set aside – Non-compliance with the first proviso to s.223(1) of the BNSS vitiates the very order taking cognizance, and the same cannot be sustained in the eyes of the law – In fact, the appellant has, at the earliest point in time, filed the application for recall of the order taking cognizance by placing reliance upon the said proviso – Had the Special Court allowed it, the trial would have proceeded further – Suffice it to state that the appellant cannot be faulted for any delay that has occasioned – The impugned judgment of the High Court dated 19.05.2025 and the order taking cognizance by the Special Court dated 02.07.2024 stand set aside – The Special Court is directed to afford an opportunity of hearing to the appellant by proceeding from the stage of taking cognizance. [Paras 37, 38, 40] Bharatiya Nagarik Suraksha Sanhita, 2023 – ss. 223 to 228 – Code of Criminal Procedure, 1973 – ss.200 to 205 – Whether ss.200 to 205 of the CrPC (now ss.223 to 228 of the BNSS) would be applicable to proceedings under the PMLA: Held: Yes – ss.200 to 205 of the CrPC (now ss.223 to 228 of the BNSS) would be applicable to proceedings under the PMLA. [Para 33]

Bharatiya Nagarik Suraksha Sanhita, 2023 – s.2(1)(k) – Inquiry, when commences:

Held: A mere ministerial act cannot be termed as an “inquiry” u/s.2(1)(k) of the BNSS – Taking cognizance is nothing but an application of judicial mind – So long as the application of the judicial mind is not exercised, an inquiry cannot commence – It is the judicial notice of an offence by the Court which is relevant – While doing so, it is presumed that the Court would take note of the complaint along with the materials placed before it. [Para 34] Bharatiya Nagarik Suraksha Sanhita, 2023 – First proviso to s.223(1) – Proviso is substantive in nature:

Held: Though Chapter XVI of the BNSS lays down the procedural law dealing with complaints made to a Magistrate, the aforesaid proviso is substantive in nature, as it does not merely regulate the manner in which the proceedings are to be conducted, rather it confers a right upon the accused to be heard before taking cognizance which forms a part of the right of an accused to a fair trial enshrined u/Art.21 of the Constitution of India, 1950 – Further, 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. [Para 27]

Bharatiya Nagarik Suraksha Sanhita, 2023 – s.531(2)(a) – Objective of:

Held: s.531(2)(a) of the BNSS has a laudable objective behind it which saves the proceedings initiated under the CrPC, prior to the commencement of the BNSS – It is meant to give a prospective application to the provisions of the BNSS – In other words, once a proceeding such as an appeal, application, investigation, inquiry or trial is initiated under the CrPC, then the same must meet its logical conclusion under the CrPC itself – Thus, the object of the said provision is to avoid piecemeal application of the CrPC vis-à-vis the BNSS. [Para 28]