Supreme Court of India
PARVINDER SINGHversusDIRECTORATE OF ENFORCEMENT
- Citation
- 2026 INSC 519
- Decided
- 19 May 2026
- Disposal
- Appeal(s) allowed
Holding
Non‑compliance with the mandatory first proviso of s.223(1) BNSS vitiates the order of cognizance, and the BNSS procedural provisions, including s.223‑228, apply to PMLA complaints, rendering the cognizance order void.
Summary
The appellant, Parvinder Singh, was subject to an ECIR and arrested, after which the Enforcement Directorate filed a prosecution complaint under the PMLA on 24 June 2024. The Special Court took cognizance of the offence on 2 July 2024, after the Bharatiya Nagarik Suraksha Sanhita (BNSS) had come into force, without giving the accused an opportunity to be heard, contrary to the first proviso of s.223(1) BNSS. The appellant sought recall of the cognizance order, which was dismissed, leading to criminal revisions that were partly upheld by the High Court on the ground that the BNSS did not apply to proceedings initiated before its commencement. The Supreme Court held that the BNSS provisions, including s.223(1) proviso, are substantive and mandatory, and that sections 200‑205 of the CrPC (now s.223‑228 BNSS) apply to PMLA complaints, making the cognizance order void. Consequently, the High Court judgment and the cognizance order were set aside, and the Special Court was directed to afford the appellant a hearing before proceeding further.
Issues considered
- The applicability of the first proviso to s.223(1) of the BNSS to a PMLA complaint filed before the BNSS came into force.
- Whether sections 200‑205 of the CrPC (now s.223‑228 of the BNSS) apply to proceedings under the PMLA.
- Whether the cognizance taken on 2 July 2024 without hearing the accused is void ab initio.
- The effect of section 531(2)(a) BNSS on proceedings initiated prior to the BNSS.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023s. 210, s. 2(1)(k), s. 223(1) first proviso, s. 4, s. 5, s. 531(2)(a)
- Code of Criminal Procedure, 1973s. 200, s. 201, s. 202, s. 203, s. 204, s. 205
- Constitution of Indias. Article 21
- Prevention of Money Laundering Act, 2002s. 43, s. 44, s. 46, s. 65, s. 71
Headnote
Issue for Consideration The present appeal has been preferred against the judgment dated 19.05.2025 passed by the High Court wherein, an issue with respect to the scope and applicability of the first proviso to s.223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) had arisen, while where the prosecution complaint under the Prevention of Money Laundering Act, 2002 (PMLA) had been filed prior to the date of commencement of the BNSS. Headnotes† Bharatiya Nagarik Suraksha Sanhita, 2023 – ss.2(1)(k), 4, 5, 210, First proviso to s.223(1), 531 – Prevention of
Subjects
first proviso s.223(1) BNSSright to be heardcognizancePMLABNSSfair trialArticle 21procedural safeguardsCrPC sections 200-205section 531(2)(a) savings
Judgment
[2026] 6 S.C.R. 486 : 2026 INSC 519
Parvinder Singh
v.
Directorate of Enforcement
(Criminal Appeal No. 2678 of 2026)
19 May 2026
[M.M. Sundresh* and Nongmeikapam Kotiswar Singh, JJ.]
Issue for Consideration
The present appeal has been preferred against the judgment dated
19.05.2025 passed by the High Court wherein, an issue with respect
to the scope and applicability of the first proviso to s.223(1) of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) had arisen,
while dealing with a case where the prosecution complaint under
the Prevention of Money Laundering Act, 2002 (PMLA) had been
filed prior to the date of commencement of the BNSS.
Headnotes†
Bharatiya Nagarik Suraksha Sanhita, 2023 – ss.2(1)(k), 4, 5, 210,
First proviso to s.223(1), 531 – Prevention of Money Laundering
Act, 2002 – ss.43, 44, 46, 65 – An ECIR was registered by the
respondent against the appellant on 24.07.2023, pursuant
to which he was arrested on 27.04.2024 – Thereafter, a
prosecution complaint was duly filed by the respondent on
24.06.2024 – The date fixed for hearing on cognizance was
02.07.2024 – The erstwhile Code of Criminal Procedure, 1973
(CrPC), was replaced by the BNSS with effect from 01.07.2024 –
When the case came up for hearing on 02.07.2024, the Special
Court took cognizance of the offence – An application for
recall of the order dated 02.07.2024 was filed alleging that
the mandate of s.223 of the BNSS, with specific reference
to the first proviso to sub-section (1) was not complied and
appellant was not given an opportunity of hearing before the
Special Court while taking cognizance – The said application
was dismissed – Aggrieved, the appellant filed two criminal
revisions, in one of the Criminal Revision challenging the
cognizance order dated 02.07.2024, the High Court, vide the
impugned judgment dated 19.05.2025, held that the provisions
of s.223 of the BNSS will not have any application to the
* Author
[2026] 6 S.C.R. 487
Parvinder Singh v. Directorate of Enforcement
instant case as the proceedings under the PMLA were initiated
against the appellant much prior to the commencement of the
BNSS – Correctness:
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
488 [2026] 6 S.C.R.
Supreme Court Reports
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]
Case Law Cited
Tarsem Lal v. ED [2024] 6 SCR 864 : (2024) 7 SCC 61; Kushal
Kumar Agarwal v. Directorate of Enforcement [2025] 5 SCR 730 :
2025 SCC OnLine SC 1221;Yash Tuteja & Ors. v. Union of India
[2024] 4 SCR 591 : (2024) 8 SCC 465 – relied on.
Hardeep Singh v. State of Punjab [2014] 2 SCR 1 : (2014) 3
SCC 92 – referred to.
[2026] 6 S.C.R. 489
Parvinder Singh v. Directorate of Enforcement
List of Acts
Bharatiya Nagarik Suraksha Sanhita, 2023; Prevention of Money
Laundering Act, 2002; Code of Criminal Procedure, 1973;
Constitution of India.
List of Keywords
First proviso to s. 223(1) of Bharatiya Nagarik Suraksha Sanhita,
2023; Section 531(2)(a) of BNSS; Art. 21 of the Constitution of India;
Mandatory statutory safeguard; Right to a fair trial; Non-compliance;
Pre-cognizance hearing; Taking cognizance; Opportunity of being
heard.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
2678 of 2026
From the Judgment and Order dated 19.05.2025 of the High Court
of Uttarakhand at Nainital in CRR No. 218 of 2025
Appearances for Parties
Advs. for the Appellant(s):
Sidharth Aggarwal, Sr. Adv., Ayush Kaushik, Ms. Shubhangni Jain,
Sahil Dhingra, Karan Dhalla, Abhay Pratap Singh.
Advs. for the Respondent(s):
Suryaprakash V. Raju, A.S.G., Zoheb Hussain, Annam Venkatesh,
Samrat Goswami, Arvind Kumar Sharma, Sai Shashank, Rohan
Wadhwa, Vittal B, Ayush Anand, Monu Kumar.
Judgment / Order of the Supreme Court
Judgment
M.M. Sundresh, J.
1. Leave granted.
2. The present appeal has been preferred against the judgment dated
19.05.2025 passed by the High Court of Uttarakhand wherein, an
issue with respect to the scope and applicability of the first proviso
to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023
(hereinafter referred to as the “BNSS”) had arisen, while dealing
490 [2026] 6 S.C.R.
Supreme Court Reports
with a case where the prosecution complaint under the Prevention of
Money Laundering Act, 2002 (hereinafter referred to as the “PMLA”)
had been filed prior to the date of commencement of the BNSS.
Brief Facts:
3. An ECIR was registered by the respondent against the appellant
being ECIR/DNSZO/04/2023 on 24.07.2023, pursuant to which he
was arrested on 27.04.2024. Within two months from the date of
the arrest, a prosecution complaint was duly filed by the respondent
on 24.06.2024, invoking Sections 44 and 45 of the PMLA for the
offences under Section 3 read with Section 4 of the PMLA before the
designated Special Court. On the very same day, the Special Court
issued a direction to register the complaint so filed as a miscellaneous
case and, thus, fixed it for hearing on cognizance on 28.06.2024.
4. When the case came up for hearing on the said date, it was once
again fixed for hearing on cognizance on 02.07.2024 since the
Presiding Officer was on recess. On behalf of the respondent, the
learned Special Public Prosecutor had appeared, and the appellant
was produced from judicial custody through video conferencing. Within
a few days thereafter, the erstwhile Code of Criminal Procedure,
1973, (hereinafter referred to as the “CrPC”) was replaced by the
BNSS with effect from 01.07.2024. When the case came up for
hearing on 02.07.2024, the Special Court took cognizance of the
offence in the presence of the learned Special Public Prosecutor and
the legal advisor who had appeared on behalf of the respondent,
and the appellant who was once again produced in judicial custody
from the district jail. The miscellaneous case registered earlier was
re-registered as Special Sessions Trial No. 28 of 2024.
5. The following is the conclusion arrived at by the Special Court upon
taking cognizance:
“6….From the perusal of the complaint, it is clear that
in the present case, sufficient material is available to
take cognizance of Section 3 read with Section 4 of the
Prevention of Money Laundering Act against the accused
Parvinder Singh. Accordingly, cognizance is taken of
Section 3 read with Section 4 of the Prevention of Money
Laundering Act against the accused Parvinder Singh.”
[2026] 6 S.C.R. 491
Parvinder Singh v. Directorate of Enforcement
6. An application for recall of the order dated 02.07.2024 was filed before
the learned Special Court on 24.12.2024, inter alia, alleging that the
mandate of Section 223 of the BNSS, with specific reference to the
first proviso to sub-section (1) had not been complied with, as the
appellant was not given an opportunity of hearing before the Special
Court while taking cognizance. The said application was dismissed
by the Special Court, vide order dated 22.03.2025, holding that the
filing of the application was merely a dilatory tactic employed by
the appellant and that once cognizance had been taken, the same
Court cannot reconsider it. Further, the Special Court, vide the said
order, also framed the charges against the appellant under Section 3
read with Section 4 of the PMLA and put up the case for recording
of prosecution evidence on 05.04.2025.
7. Aggrieved, the appellant preferred a criminal revision before the
High Court in CRLR No. 183/2025 challenging the order dated
22.03.2025, dismissing the recall application. Yet another criminal
revision in CRLR No. 218/2025 was filed challenging the cognizance
order dated 02.07.2024.
8. The High Court, vide the impugned judgment dated 19.05.2025, has
been pleased to hold that the provisions of Section 223 of the BNSS
will not have any application to the instant case as the proceedings
under the PMLA were initiated against the appellant much prior to the
commencement of the BNSS. Accordingly, the criminal revision filed
in CRLR No. 218/2025 has been dismissed by placing reliance upon
Section 531(2)(a) of the BNSS, which saves criminal proceedings
initiated prior to the commencement of the BNSS to continue under
the provisions of the erstwhile CrPC. On the same day, the criminal
revision filed in CRLR No. 183/2025 was partly allowed by the High
Court by quashing the order dated 22.03.2025 to the extent of the
charges framed and remanded the matter to the Special Court for
fresh hearing on the issue of framing of charges.
SUBMISSIONS ON BEHALF OF THE APPELLANT:
9. The learned Senior Counsel appearing for the appellant submitted
that the appellant has, admittedly, not been heard by the Special
Court at the time of taking cognizance. It was further submitted that
Sections 200 to 205 of the CrPC, which have been reiterated under
Sections 223 to 228 of the BNSS, are applicable to the case at
hand. Thus, there is no inconsistency between the said provisions
492 [2026] 6 S.C.R.
Supreme Court Reports
of the BNSS and that of the PMLA and, hence, the appellant is
entitled to be heard at the time of taking cognizance, as provided
under the first proviso to Section 223(1) of the BNSS. A similar view
has already been taken by this Court in the case of Kushal Kumar
Agarwal v. Directorate of Enforcement, 2025 SCC OnLine SC
1221, by placing reliance upon two earlier decisions of this Court in
the cases of Yash Tuteja & Ors. v. Union of India, (2024) 8 SCC
465, and Tarsem Lal v. ED, (2024) 7 SCC 61.
10. Furthermore, the mere fact that the Special Court had directed the
prosecution complaint filed by the respondent to be numbered and,
thereafter, put up the case for taking cognizance, would not amount
to an “inquiry” as defined under Section 2(1)(k) of the BNSS and,
therefore, Section 531(2)(a) of the BNSS has no application to the
instant case.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
11. Mr. S.V. Raju, the learned Additional Solicitor General (ASG) appearing
for the respondent, submitted that the PMLA is a stand-alone enactment
and, therefore, the provisions of the BNSS do not have any application
to the proceedings under PMLA. There is no question of committal
involved in the procedure envisaged under the PMLA and, therefore,
the Special Court, being a court of original jurisdiction having a distinct
object behind it, cannot be made to follow the general criminal procedure
contemplated under the BNSS. In any case, Chapters XIV to XVII of
the BNSS do not have any application to the proceedings under the
PMLA. In light of the aforesaid submission, the learned ASG further
contended that the decision rendered by this Court in Kushal Kumar
Agarwal (supra), as relied upon by the learned Senior Counsel
appearing for the appellant, has to be reconsidered.
12. Without prejudice to his earlier contentions, it is submitted that there
is no dispute that the complaint under the PMLA was filed prior to the
commencement of the BNSS, and the learned Special Court had, in
fact, passed orders prior to the commencement of the BNSS. Thus,
the High Court has rightly taken note of Section 531(2)(a) of the
BNSS as an inquiry had indeed been initiated by the Special Court
prior to the commencement of the BNSS. He also submitted that,
in view of the law as laid down by this Court in Hardeep Singh vs.
State of Punjab, (2014) 3 SCC 92, it has to be held that an inquiry
[2026] 6 S.C.R. 493
Parvinder Singh v. Directorate of Enforcement
had already commenced prior to the commencement of the BNSS
and, hence, the provisions of the CrPC shall be applicable.
13. In any case, the appellant has not shown any prejudice caused
to him due to the Special Court having taken cognizance without
hearing him. Hence, the impugned order ought not to be interfered
with, and the appeal deserves to be dismissed.
14. Before we go into the issues raised by the learned Senior Counsel
and the learned ASG, we shall now have a look at the relevant
provisions.
DISCUSSION ON RELEVANT LEGAL PROVISIONS
(i) THE PREVENTION OF MONEY LAUNDERING ACT, 2002
Section 43 of the PMLA
“43. Special Courts.—(1) The Central Government, in
consultation with the Chief Justice of the High Court,
shall, for trial of offence punishable under section 4, by
notification, designate, one or more Courts of Session
as Special Court or Special Courts for such area or
areas or for such case or class or group of cases as
may be specified in the notification.
Explanation.—In this sub-section, “High Court” means
the High Court of the State in which a Sessions Court
designated as Special Court was functioning immediately
before such designation.
(2) While trying an offence under this Act, a Special Court
shall also try an offence, other than an offence referred
to in sub-section (1), with which the accused may, under
the Code of Criminal Procedure, 1973 (2 of 1974), be
charged at the same trial.”
(emphasis supplied)
15. Section 43 of the PMLA defines a Special Court as a Court of
Session which has been designated by way of a notification issued
by the Central Government in consultation with the Chief Justice
of the respective High Court. Any Trial Court other than a Court of
Session cannot function as a Special Court.
494 [2026] 6 S.C.R.
Supreme Court Reports
Section 44 of the PMLA
“44. Offences triable by Special Courts.—
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974),—
(a) an offence punishable under Section 4 and any
scheduled offence connected to the offence under
that section shall be triable by the Special Court
constituted for the area in which the offence has
been committed:
Provided that the Special Court, trying a scheduled
offence before the commencement of this Act, shall
continue to try such scheduled offence; or
(b) a Special Court may, upon a complaint made by
an authority authorised in this behalf under this
Act take cognizance of offence under Section 3,
without the accused being committed to it for trial:
Provided that after conclusion of investigation,
if no offence of money-laundering is made out
requiring filing of such complaint, the said
authority shall submit a closure report before
the Special Court; or
(c) if the court which has taken cognizance of the
scheduled offence is other than the Special Court
which has taken cognizance of the complaint
of the offence of money-laundering under sub-
clause (b), it shall, on an application by the
authority authorised to file a complaint under this
Act, commit the case relating to the scheduled
offence to the Special Court and the Special Court
shall, on receipt of such case proceed to deal
with it from the stage at which it is committed.
(d) a Special Court while trying the scheduled offence
or the offence of money-laundering shall hold trial
in accordance with the provisions of the Code of
Criminal Procedure, 1973 (2 of 1974), as it applies
to a trial before a Court of Session.
[2026] 6 S.C.R. 495
Parvinder Singh v. Directorate of Enforcement
Explanation.—For the removal of doubts, it is clarified
that,—
(i) the jurisdiction of the Special Court while dealing
with the offence under this Act, during investigation,
enquiry or trial under this Act, shall not be dependent
upon any orders passed in respect of the scheduled
offence, and the trial of both sets of offences by the
same court shall not be construed as joint trial;
(ii) the complaint shall be deemed to include any
subsequent complaint in respect of further investigation
that may be conducted to bring any further evidence,
oral or documentary, against any accused person
involved in respect of the offence, for which complaint
has already been filed, whether named in the original
complaint or not.
(2) Nothing contained in this section shall be deemed to
affect the special powers of the High Court regarding bail
under section 439 of the Code of Criminal Procedure, 1973
(2 of 1974) and the High Court may exercise such powers
including the power under clause (b) of sub-section (1)
of that section as if the reference to “Magistrate” in that
section includes also a reference to a “Special Court”
designated under Section 43.”
(emphasis supplied)
16. Section 44(1)(b) of the PMLA empowers the authority to file a
complaint before the Special Court without the accused being
committed to it for trial. Under the proviso to Section 44(1)(b) of the
PMLA, it is well open to the authority to submit a closure report before
the Special Court if no offence of money laundering is made out upon
conclusion of investigation. As per Section 44(1)(c) of the PMLA, it
is open to the authority who filed the complaint to seek committal
of a case relating to a Scheduled Offence, which is pending before
a competent Court, to the Special Court by way of an application.
If and when such an application is filed, the Court dealing with the
Scheduled Offence has to commit the same to the Special Court,
which shall thereafter proceed to deal with it from the stage at which
it was committed. Section 44(1)(d) of the PMLA makes the procedure
496 [2026] 6 S.C.R.
Supreme Court Reports
under the CrPC, which has now been replaced by the procedure
under the BNSS pursuant to the repeal, applicable to a trial before
the Special Court as if it were a Court of Session.
Section 46 of the PMLA
“46. Application of Code of Criminal Procedure,
1973 to proceedings before Special Court.—(1) Save
as otherwise provided in the Act, the provisions
of the Code of Criminal Procedure, 1973 (2 of
1974) (including the provisions as to bails or bonds),
shall apply to the proceedings before a Special Court
and for the purposes of the said provisions, the Special
Court shall be deemed to be a Court of Session and the
persons conducting the prosecution before the Special
Court, shall be deemed to be a Public Prosecutor:
Provided that the Central Government may also appoint
for any case or class or group of cases a Special Public
Prosecutor.
(2) A person shall not be qualified to be appointed as a
Public Prosecutor or a Special Public Prosecutor under
this section unless he has been in practice as an advocate
for not less than seven years, under the Union or a State,
requiring special knowledge of law.
(3) Every person appointed as a Public Prosecutor or
a Special Public Prosecutor under this section shall be
deemed to be a Public Prosecutor within the meaning of
clause (u) of Section 2 of the Code of Criminal Procedure,
1973 (2 of 1974) and the provisions of that Code shall
have effect accordingly.”
(emphasis supplied)
17. Section 46 of the PMLA treats the Special Court to be deemed to
be a Court of Session, wherein, the provisions of the CrPC (now
BNSS) shall apply to the proceedings under the PMLA, save as
otherwise provided under the PMLA. In other words, the procedural
framework governing the proceedings before a Court of Session
stands extended to the Special Court under the PMLA.
[2026] 6 S.C.R. 497
Parvinder Singh v. Directorate of Enforcement
Section 65 of the PMLA
“65. Code of Criminal Procedure, 1973 to apply.—
The provisions of the Code of Criminal Procedure,
1973 (2 of 1974) shall apply, insofar as they are
not inconsistent with the provisions of this Act, to
arrest, search and seizure, attachment, confiscation,
investigation, prosecution and all other proceedings
under this Act.”
(emphasis supplied)
18. Section 65 of the PMLA makes the provisions of the CrPC (now
BNSS) applicable to proceedings under the PMLA, provided
that they are not inconsistent with the provisions of the PMLA.
It acknowledges the overriding effect of the PMLA while also
facilitating the application of the other provisions contained in the
CrPC (now BNSS).
Section 71 of the PMLA
“71. Act to have overriding effect.— The provisions
of this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for
the time being in force.”
“(emphasis supplied)
19. Section 71 of the PMLA places the provisions of the PMLA on a
higher pedestal vis-à-vis any other law operating in the same field.
Therefore, in the event of any inconsistency that may arise between
the provisions of the PMLA on the one hand and those contained in
any other statute, the former, being a special statute, would prevail,
as expressly provided under Section 71 of the PMLA.
(ii) BHARATIYA NAGARIK SURAKSHA SANHITA, 2023
20. The BNSS is an improved version of the erstwhile CrPC. This is a
procedural Code designed to act as a guiding framework to all the
stakeholders in the criminal justice system. While retaining several
provisions contained in the earlier statute, a conscious endeavour
has been made to make the BNSS citizen-centric, while facilitating
the investigating agencies and the Courts.
498 [2026] 6 S.C.R.
Supreme Court Reports
Section 2(1)(k) of the BNSS
“2. Definitions.—(1) In this Sanhita, unless the context
otherwise requires,—
***
(k) “inquiry” means every inquiry, other than a trial,
conducted under this Sanhita by a Magistrate or Court;”
(emphasis supplied)
21. Section 2(1)(k) of the BNSS, 2023 defines an “inquiry”. An exhaustive
and inclusive definition of the said term has been provided by stating
that it would mean every inquiry other than a trial conducted under
the BNSS by a Magistrate or a Court. However, it is pertinent to
note that an inquiry is a judicial act, as against an administrative
one, requiring application of judicial mind which must be reflected
through the recording made by a Court. Hence, it is a positive and
conscious act done by a Magistrate or a Court.
Section 4 of the BNSS
“4. Trial of offences under Bharatiya Nyaya Sanhita,
2023 and other laws.— (1) All offences under the Bharatiya
Nyaya Sanhita, 2023 shall be investigated, inquired into,
tried, and otherwise dealt with according to the provisions
hereinafter contained.
(2) All offences under any other law shall be
investigated, inquired into, tried, and otherwise dealt
with according to the same provisions, but subject to
any enactment for the time being in force regulating
the manner or place of investigating, inquiring into,
trying or otherwise dealing with such offences.”
(emphasis supplied)
Section 5 of the BNSS, 2023
“5. Saving.— Nothing contained in this Sanhita shall,
in the absence of a specific provision to the contrary,
affect any special or local law for the time being in
force, or any special jurisdiction or power conferred,
[2026] 6 S.C.R. 499
Parvinder Singh v. Directorate of Enforcement
or any special form of procedure prescribed, by any
other law for the time being in force.”
(emphasis supplied)
22. Similar to the provisions contained under the PMLA, Section 4(2) of
the BNSS makes the provisions of the BNSS subject to any other
enactment governing the field while dealing with offences under
any law apart from those under the Bharatiya Nyaya Sanhita, 2023.
23. Section 5 of the BNSS extends protection to a special or local law,
only in the absence of a specific provision to the contrary under the
BNSS overriding such special or local law.
Section 210 of the BNSS, 2023
“210. Cognizance of offences by Magistrate.—
(1) Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate of the
second class specially empowered in this behalf under
sub-section (2), may take cognizance of any offence—
(a) upon receiving a complaint of facts, including
any complaint filed by a person authorised under
any special law, which constitutes such offence;
(b) upon a police report (submitted in any mode including
electronic mode) of such facts;
(c) upon information received from any person other
than a police officer, or upon his own knowledge,
that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any
Magistrate of the second class to take cognizance
under sub-section (1) of such offences as are within his
competence to inquire into or try.”
(emphasis supplied)
Section 213 of the BNSS, 2023
“213. Cognizance of offences by Court of Session.—
Except as otherwise expressly provided by this
500 [2026] 6 S.C.R.
Supreme Court Reports
Sanhita or by any other law for the time being in
force, no Court of Session shall take cognizance of
any offence as a Court of original jurisdiction unless
the case has been committed to it by a Magistrate
under this Sanhita. ”
(emphasis supplied)
24. Section 210 of the BNSS deals with cognizance of offences by a
Magistrate. Section 210(1)(a) of the BNSS empowers the Magistrate
to take cognizance of offences in complaint cases, including
complaints which may be filed by an authorised person under any
special law.
25. Section 213 of the BNSS bars a Court of Session from directly taking
cognizance of an offence, unless the case has been committed to
it by the Magistrate. However, it also makes it clear that the said
bar shall not apply in case of a contrary provision existing under the
BNSS or any other law.
Section 223 of the BNSS, 2023
“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:
[2026] 6 S.C.R. 501
Parvinder Singh v. Directorate of Enforcement
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.
(2) A Magistrate shall not take cognizance on a complaint
against a public servant for any offence alleged to have
been committed in course of the discharge of his official
functions or duties unless—
(a) such public servant is given an opportunity to make
assertions as to the situation that led to the incident
so alleged; and
(b) a report containing facts and circumstances of the
incident from the officer superior to such public
servant is received.”
(emphasis supplied)
26. Section 223 of the BNSS deals with the examination of a complainant.
The first proviso to Section 223(1) of the BNSS prohibits the Magistrate
from taking cognizance of an offence, unless the accused is given
an opportunity of being heard.
27. Though Chapter XVI of the BNSS lays down the procedural law
dealing with complaints made to a Magistrate, we hold that 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 under Article 21 of the Constitution of India, 1950.
We further hold that 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.
Section 531 of the BNSS, 2023
“531. Repeal and savings.— (1) The Code of Criminal
Procedure, 1973 (2 of 1974) is hereby repealed.
(2) Notwithstanding such repeal—
502 [2026] 6 S.C.R.
Supreme Court Reports
(a) if, immediately before the date on which this Sanhita
comes into force, there is any appeal, application, trial,
inquiry or investigation pending, then, such appeal,
application, trial, inquiry or investigation shall be
disposed of, continued, held or made, as the case
may be, in accordance with the provisions of the Code
of Criminal Procedure, 1973 (2 of 1974), as in force
immediately before such commencement (hereinafter
referred to as the said Code), as if this Sanhita had
not come into force;”
***
(emphasis supplied)
28. Section 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, we hold that the object of
the said provision is to avoid piecemeal application of the CrPC
vis-à-vis the BNSS.
29. A substantive right conferred under the BNSS would definitely enure
to the benefit of an accused against whom none of the proceedings
envisaged under Section 531(2)(a) of the BNSS has been initiated.
One has to see the nature of right. It is not a case of either a
retrospective or retroactive application, rather it is a prospective one
when a better right has been conferred under the BNSS.
LEGAL & FACTUAL ANALYSIS
30. The issue of application of the procedure pertaining to a complaint
under the CrPC (now BNSS) to proceedings under the PMLA is no
longer res integra, as has been elaborately dealt with by this Court
in the decisions of Tarsem Lal (supra), Yash Tuteja (supra) and
Kushal Kumar Agarwal (supra). Though we find that in the instant
case the said issue has not been specifically raised either before the
Trial Court or the High Court, we are willing to consider the same,
being a pure question of law.
[2026] 6 S.C.R. 503
Parvinder Singh v. Directorate of Enforcement
31. The submission of the learned ASG that the earlier decision of this
Court in Kushal Kumar Agarwal (supra) will have to be reconsidered
and, therefore, be referred to a larger Bench cannot be countenanced.
Taking away the applicability of the provisions governing a complaint
under Sections 200 to 205 of the CrPC (now Sections 223 to 228 of
the BNSS) to the proceedings under the PMLA, including the one that
has a serious bearing not only on the right of the accused but also
on the power of the Court, would lead to disastrous consequences.
If the argument so made by the learned ASG is accepted, then the
Special Court under the PMLA would have no jurisdiction to: dismiss
a complaint despite an absolute lack of evidence, postpone the
issuance of process, issue process or dispense with the appearance
of an accused as provided under Sections 225 to 228 of the BNSS,
respectively.
32. In such view of the matter, we are in absolute agreement with the
decisions rendered by this Court in Tarsem Lal (supra), Yash
Tuteja (supra) and Kushal Kumar Agarwal (supra), which we
quote profitably.
Tarsem Lal v. Enforcement Directorate, (2024) 7 SCC 61
“17. After carefully perusing the provisions of PMLA,
we find that there is no provision therein which is
in any manner inconsistent with Section 205 CrPC.
Hence, it will apply to a complaint under PMLA. A
summons is issued on a complaint to ensure attendance
of the accused before the criminal court. If an accused
is in custody, no occasion arises for a court to dispense
with the personal attendance of the accused. We may
note here that Section 205 empowers the court to
grant exemption only when a summons is issued. Sub-
section (2) of Section 205 provides for enforcing the
attendance of the accused before the court at the time
of the trial. If the accused who appears pursuant to the
summons issued on a complaint were deemed to be
in custody, the lawmakers would not have provided for
Section ……
***
504 [2026] 6 S.C.R.
Supreme Court Reports
33. Now, we summarise our conclusions as under:
33.1. Once a complaint under Section 44(1)(b) PMLA is
filed, it will be governed by Sections 200 to 205 CrPC
as none of the said provisions are inconsistent with
any of the provisions of PMLA;
33.2. If the accused was not arrested by ED till filing of the
complaint, while taking cognizance on a complaint under
Section 44(1)(b), as a normal rule, the court should issue a
summons to the accused and not a warrant. Even in a case
where the accused is on bail, a summons must be issued;
33.3. After a summons is issued under Section 204
CrPC on taking cognizance of the offence punishable
under Section 4 PMLA on a complaint, if the accused
appears before the Special Court pursuant to the
summons, he shall not be treated as if he is in custody.
Therefore, it is not necessary for him to apply for bail.
However, the Special Court can direct the accused to
furnish bond in terms of Section 88 CrPC;
33.4. In a case where the accused appears pursuant to
a summons before the Special Court, on a sufficient
cause being shown, the Special Court can grant
exemption from personal appearance to the accused
by exercising power under Section 205 CrPC;”
***
(emphasis supplied)
Yash Tuteja & Anr. v. Union of India, (2024) 8 SCC 465
“6. The only mode by which the cognizance of the
offence under Section 3, punishable under Section 4
PMLA, can be taken by the Special Court is upon a
complaint filed by the Authority authorised on this behalf.
Section 46 PMLA provides that the provisions of CrPC
(including the provisions as to bails or bonds) shall
apply to proceedings before a Special Court and for
the purposes of CrPC provisions, the Special Court
shall be deemed to be a Court of Sessions. However,
[2026] 6 S.C.R. 505
Parvinder Singh v. Directorate of Enforcement
sub-section (1) of Section 46 starts with the words
“save as otherwise provided in this Act”. Considering
the provisions of Section 46(1) PMLA, save as
otherwise provided in PMLA, the provisions of the
Code of Criminal Procedure, 1973 (for short “CrPC”)
shall apply to the proceedings before a Special Court.
Therefore, once a complaint is filed before the Special
Court, the provisions of Sections 200 to 204 CrPC will
apply to the complaint. There is no provision in PMLA
which overrides the provisions of Sections 200 to
Sections 204 CrPC. Hence, the Special Court will have
to apply its mind to the question of whether a prima
facie case of a commission of an offence under Section
3 PMLA is made out in a complaint under Section 44(1)
(b) PMLA. If the Special Court is of the view that no
prima facie case of an offence under Section 3 PMLA
is made out, it must exercise the power under Section
203 CrPC to dismiss the complaint. If a prima facie
case is made out, the Special Court can take recourse
to Section 204 CrPC.”
(emphasis supplied)
Kaushal Kumar Agarwal v. Directorate of Enforcement, 2025
SCC OnLine SC 1221.
“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.
Union of India, (2024) 8 SCC 465, and Tarsem Lal v.
Enforcement Directorate, (2024) 7 SCC 61. 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
506 [2026] 6 S.C.R.
Supreme Court Reports
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.”
(emphasis supplied)
33. Accordingly, we have no hesitation in holding that Sections 200 to
205 of the CrPC (now Sections 223 to 228 of the BNSS) would be
applicable to proceedings under the PMLA.
34. 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. 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.
35. The learned ASG placed reliance upon the decision of this Court in
Hardeep Singh (supra) to contend that in the facts of the instant case,
the inquiry had been initiated upon filing of the prosecution complaint
on 24.06.2024 which is, admittedly, prior to the commencement of
the BNSS on 01.07.2024. We find that the said decision actually
militates against the submission made by him, and would only quote
the following paragraphs in the aforesaid decision:
“26. In Raghubans Dubey v. State of Bihar, AIR 1967 SC
1167, this Court held: (AIR p. 1169, para 9)
“9. ... once cognizance has been taken by the Magistrate,
he takes cognizance of an offence and not the offenders;
once he takes cognizance of an offence it is his duty to
find out who the offenders really are and once he comes
to the conclusion that apart from the persons sent up by
the police some other persons are involved, it is his duty
to proceed against those persons. The summoning of the
additional accused is part of the proceeding initiated by
his taking cognizance of an offence.”
[2026] 6 S.C.R. 507
Parvinder Singh v. Directorate of Enforcement
27. The stage of inquiry commences, insofar as the
court is concerned, with the filing of the charge-sheet
and the consideration of the material collected by the
prosecution, that is mentioned in the charge-sheet
for the purpose of trying the accused. This has to
be understood in terms of Section 2(g) CrPC, which
defines an inquiry as follows:
“2. (g) ‘inquiry’ means every inquiry, other than a trial,
conducted under this Code by a Magistrate or court.”
28. In State of U.P. v. Lakshmi Brahman, (1983) 2
SCC 372, this Court held that from the stage of filing
of charge-sheet to ensuring the compliance with the
provision of Section 207 CrPC, the court is only at
the stage of inquiry and no trial can be said to have
commenced. The above view has been held to be per
incuriam in Raj Kishore Prasad v. State of Bihar, (1996)
4 SCC 495, wherein this Court while observing that
Section 319(1) CrPC operates in an ongoing inquiry
into, or trial of, an offence, held that at the stage of
Section 209 CrPC, the court is neither at the stage
of inquiry nor at the stage of trial. Even at the stage
of ensuring compliance with Sections 207 and 208
CrPC, it cannot be said that the court is at the stage
of inquiry because there is no judicial application of
mind and all that the Magistrate is required to do is
to make the case ready to be heard by the Court of
Session.”
(emphasis supplied)
36. As rightly held by this Court in Hardeep Singh (supra), even the
stage of ensuring compliance with Sections 207 to 209 of the CrPC,
1973 cannot be termed as an inquiry because there is no application
of judicial mind. In the facts of the instant case, the direction issued
by the Special Court, vide order dated 24.06.2024, to number the
complaint and, thereafter, post the matter on a future date for hearing
on cognizance would certainly not come within the purview of an
“inquiry” under Section 2(1)(k) of the BNSS. In such view of the
matter, the aforestated contention raised by the learned ASG falls
to the ground.
508 [2026] 6 S.C.R.
Supreme Court Reports
37. As already discussed, 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 learned 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 Section 506 or 511 of the BNSS, but is an
illegality that would vitiate the very proceedings.
38. Based on the above discussion, the views expressed by the High Court
are, therefore, liable to be set aside. We do find that the allegations
against the appellant are quite serious. However, non-compliance
with the first proviso to Section 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.
39. For the foregoing reasons, 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.
40. The Special Court is directed to afford an opportunity of hearing to
the appellant by proceeding from the stage of taking cognizance.
The aforestated exercise must be completed within a period of 8
weeks from the date of receipt of a copy of this judgment.
41. The appeal stands allowed, accordingly.
42. Pending application(s), if any, shall stand disposed of.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Ankit Gyan
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