KUSHAL KUMAR AGARWALversusDIRECTORATE OF ENFORCEMENT

                 [2025] 5 S.C.R. 730 : 2025 INSC 760

                        Kushal Kumar Agarwal
                                   v.
                      Directorate of Enforcement
                    (Criminal Appeal No. 2749 of 2025)
                                 09 May 2025
               [Abhay S. Oka* and Ujjal Bhuyan, JJ.]


                           Issue for Consideration
       An opportunity of being heard was not given by the Special Judge
       to the appellant-accused before taking cognizance of the offence
       on the complaint. Whether opportunity of being heard is required
       in terms of the proviso to sub-section (1) of s.223 of the Bharatiya
       Nagarik Suraksha Sanhita, 2023.

                                  Headnotes†
       Bharatiya Nagarik Suraksha Sanhita, 2023 – Proviso to
       sub-section (1) of s.223 – Prevention of Money Laundering
       Act, 2002 – s.44(1)(b) – Examination of complaint u/s. 223
       BNSS – Opportunity of being heard to the accused – In this
       case, admittedly, an opportunity of being heard was not given
       by the Special Judge to the appellant-accused before taking
       cognizance of the offence on the complaint – Correctness:
       Held: The proviso to sub-section (1) of s.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
       impugned order dated 20.11.2024, is set aside only on the ground
       of non-compliance with the proviso to sub-section (1) of s.223 of
       the BNSS – Therefore, appellant is directed to appear before the
       Special Court, so that he can be given an opportunity of being
       heard in terms of the proviso to sub-section (1) of s.223 of the
       BNSS. [Paras 6, 10, 12]

                                Case Law Cited
       Yash Tuteja v. Union of India and Others [2024] 4 SCR 591 :
       2024 SCC OnLine Sc 533; Tarsem Lal v. Enforcement Directorate
       [2024] 6 SCR 864 : (2024) 7 SCC 61 – referred to.

* Author
[2025] 5 S.C.R.                                                         731

          Kushal Kumar Agarwal v. Directorate of Enforcement


                               List of Acts
     Bharatiya Nagarik Suraksha Sanhita, 2023; Prevention of Money
     Laundering Act, 2002.

                            List of Keywords
     Proviso to sub-section (1) of s.223 of Bhartiya Nagarik Suraksha
     Sanhita, 2023; Examination of complaint; Opportunity of being
     heard to the accused.

                           Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     2749 of 2025
     From the Judgment and Order dated 20.11.2024 of the Special
     Judge (PC Act) (CBI) (Coal Block Cases) -01, Rouse Avenue
     District Court, New Delhi in Crl. Case No. 1 of 2024

                        Appearances for Parties
     Advs. for the Appellant:
     Vijay Aggarwal, Nagesh Behl, Animesh Rajoriya, Ms. Barkha
     Rastogi, Rhythm Aggarwal, Vishal Gaurav, Somesh Chandra Jha,
     Shekhar Pathak, Saurabh Nagar, Ashish Arya.
     Advs. for the Respondent:
     Suryaprakash V. Raju, A.S.G., Annam Venkatesh, Zoheb Hussain,
     Samrat Goswami, Arvind Kumar Sharma, Ms. Aditi Singh,
     Ms. Anushka Gupta, Anand Kirti, Ms. Vismaya Bansal, Ms. Geeta
     Bajaj, Rajesh Batra, Ms. Sonia Kukreja, Prabhas Bajaj, Ansh Singh
     Luthra, Gurpreet Singh Parwanda, Hemant Shah, Harshit Sethi,
     Pallav Srivastav, Ms. Mansi Tripathi, Kartik Yadav, Sahil Sharma.

                Judgment / Order of the Supreme Court

                                  Order

     Abahy S Oka, J.

1.   Leave granted.
2.   Heard the learned counsel appearing for the appellant and the
     learned Additional Solicitor General appearing for the respondent.
732                                                         [2025] 5 S.C.R.

                          Supreme Court Reports


3.     In the present case, a complaint was filed under Section 44(1)(b) of
       the Prevention of Money Laundering Act, 2002 (hereinafter referred
       to as “the PMLA”) on August 2, 2024. The appellant is shown as
       accused in the complaint. The Bhartiya Nagarik Suraksha Sanhita,
       2023 (hereinafter referred to as “the BNSS”) came into force on
       July 1, 2024. Section 223 of the BNSS reads thus:
            “223. Examination of complainant.
            (1)A Magistrate having jurisdiction while taking cognizance
            of an offence on complaint shall examine upon oath the
            complainant and the witnesses present, if any, and the
            substance of such examination shall be reduced to writing
            and shall be signed by the complainant and the witnesses,
            and also by the Magistrate:
            Provided that no cognizance of an offence shall be taken
            by the Magistrate without giving the accused an opportunity
            of being heard:
            Provided further that when the complaint is made in writing,
            the Magistrate need not examine the complainant and the
            witnesses-
            (a) if a public servant acting or purporting to act in the
            discharge of his official duties or a Court has made the
            complaint; or
            (b) if the Magistrate makes over the case for inquiry or
            trial to another Magistrate under section 212;
            Provided also that if the Magistrate makes over the case
            to another Magistrate under section 212 after examining
            the complainant and the witnesses, the latter Magistrate
            need not re-examine them.”
4.     Section 223 of the BNSS corresponds to Section 200 of the Code
       of Criminal Procedure, 1973 (hereinafter referred to as ‘the CrPC’).
       However, a proviso similar to the proviso to sub-section (1) of
       Section 223 does not find place in Section 200 of the CrPC.
5.     This Court has taken a consistent view that a complaint filed by the
       Enforcement Directorate under Section 44 (1)(b) of the PMLA will
       be governed by Sections 200 to 204 of the CrPC. This view has
       been taken by this Court in the cases of Yash Tuteja v/s Union of
[2025] 5 S.C.R.                                                          733

            Kushal Kumar Agarwal v. Directorate of Enforcement


      India and others1 and Tarsem Lal v/s Enforcement Directorate2.
      Therefore, the provisions of Chapter XVI, containing Sections 223
      to 226, will also apply to a complaint under Section 44 of the PMLA.
      As the complaint has been filed after 1st July, 2024, Section 223 of
      the BNSS will apply to the present complaint.
6.    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.
7.    In this case, admittedly, an opportunity of being heard was not
      given by the learned Special Judge to the appellant before taking
      cognizance of the offence on the complaint. Only on that ground,
      the impugned order dated 20th April, 2024, will have to be set aside.
8.    Mr. Raju, the learned Additional Solicitor General, has made two
      submissions. Firstly, he submits that hearing given to the accused in
      terms of the proviso to sub-section (1) of Section 223 of the BNSS will
      be confined to the question whether a case is made out to proceed
      on the basis of the complaint and hence, only the complaint and the
      documents produced along with the complaint can be considered at
      the time of hearing. His second submission is that it is well settled
      that cognizance is taken by the criminal Court of the offence and not
      the offender. Therefore, after taking cognizance and after following
      the procedure prescribed by proviso to sub-section (1) of Section
      223 of the BNSS if cognizance is taken, there will be no occasion
      to again take cognizance of the same offence when supplementary
      or further complaints are filed. Therefore, at that stage, there will be
      no occasion to give the accused the opportunity to be heard.
9.    The aforesaid two submissions made by Mr. Raju, the learned
      Additional Solicitor General, need not be considered, as the same
      do not arise in this appeal at this stage. However, we make it clear
      that the said contentions are expressly kept open, which can be
      raised before the Special Court.
10. The impugned order dated 20th November, 2024, is set aside only
    on the ground of non-compliance with the proviso to sub-section (1)
    of Section 223 of the BNSS.


1    2024 SCC OnLine Sc 533
2    (2024) 7 SCC 61
734                                                      [2025] 5 S.C.R.

                              Supreme Court Reports


11. We make it clear that we have not expressed any opinion on the
    merits of the complaint and the aforesaid contentions raised by the
    learned Additional Solicitor General.
12. We direct the appellant to appear before the Special Court on 14th
    July, 2025, so that he can be given an opportunity of being heard in
    terms of the proviso to sub-section (1) of Section 223 of the BNSS.
    We make it clear that no further notice shall be issued by the Special
    Court to the appellant.
13. The appeal is accordingly partly allowed.

       Result of the case: Appeal partly allowed.




       †
           Headnotes prepared by: Ankit Gyan