S.223 BNSS Which Gives Right Of Hearing To Accused Before Cognizance Can Apply To Complaint Filed Before July 01, 2024: P&H High Court

The Punjab and Haryana High Court has held that Section 223 of the Bhartiya Nyaya Suraksha Sanhita 2023, which grants the accused right to be heard before cognizance is taken in complaint cases, can apply even to cases instituted prior to July 1, 2024—the date when the BNSS came into force.

Section 223 BNSS is pari materia to Section 200 of the erstwhile CrPC except the first proviso to the former which has created a new procedure for taking cognizance only after giving an opportunity of hearing to the accused.

Citing the 'rule of beneficial construction' of a statute, Justice Tribhuvan Dahiya said,

"Issuing process of a criminal offence has serious repercussions for the accused, and that is the reason the Legislature deemed it appropriate to provide prior hearing to the person sought to be summoned. The right of hearing is one of the most cherished rights in the criminal jurisprudence, and is embedded in the Principles of Natural Justice permeating to the Constitutional scheme of things, especially Articles 14 and 21 guaranteeing the right to fair trial. Therefore, there is no reason why the benefit of hearing should not be afforded to the accused after coming into force of the BNSS, even if complaint against him has been technically filed before coming into force of the BNSS on 01.07.2024."

The judge added that when an ex-post facto law can be applied to give the benefit of reduced punishment to a person accused of committing an offence under the unamended statute by invoking the rule of beneficial construction, it can be made applicable to the instant case as well.

In the case at hand, though the complaint was filed prior to enforcement of BNSS, accused Sikander Singh argued that the judicial application of mind to the case was after enforcement of BNSS, and thus he was entitled to a hearing before taking cognizance.

Singh, booked under Sections 44, 45 PMLA, challenged dismissal of his application for hearing by the Special Court.

The High Court noted that though the prosecution complaint was filed prior to BNSS, the Sessions Court ordered to check and register the same, and sent the file to the competent Court only on July 04, 2024, i.e. after enforcement of BNSS.

The new criminal laws are to apply prospectively, more particularly in accordance with Section 531 BNSS which the savings and repeal clause.

The savings clause provides in case any appeal, application, trial, inquiry or investigation is pending immediately before the date of enforcement of the BNSS, the same shall be disposed of, continued, held or made in accordance with the provisions of the CrPC.

Thus the primary issue before the Court was whether filing of complaint prior to July 01, 2024 would amount to commencement of 'inquiry', protected under repealing provision Section 531 BNSS.

The High Court held the pre-requisite to an 'inquiry' is the Magistrate's competence to take cognizance of the offence alleged. Such an inquiry requires taking evidence on oath and/or applying mind to test veracity of the allegations to find out prima facie grounds for issuing the process.

Resultantly, it held, except when the Magistrate has applied judicial mind to the complaint in the manner stipulated under Sections 202 to 204 Cr.P.C., an inquiry cannot be said to have commenced or pending before him/her.

"Mere filing/presentation of a complaint, or its registration for being sent to the competent Court for taking cognizance, would not require application of judicial mind. In such cases, Magistrate only performs the administrative act of sending the case file to the competent Court on coming to know that the offences are not triable by him/her. This is not an application of judicial mind to the allegations in the complaint and will not fall within the ambit of inquiry under Section 2(g) Cr.P.C. Consequently, the filing of prosecution complaint by the respondent before the Additional Sessions Judge on 27.06.2024 would not attract Section 531(2)(a) BNSS so as to make provisions of the Cr.P.C. applicable to it, because neither the Additional Sessions Judge was competent to take cognizance of the alleged offences under the PMLA, nor did he apply judicial mind to the complaint/allegations. And cognizance of the offences was taken by the Special Judge after coming into force of the BNSS, vide impugned order dated 05.12.2024," the Court explained.

As such, it held that the varied procedure of giving prior hearing to the accused before taking cognizance will apply to the prosecution complaint in question.

The plea was thus allowed.

Mr. Vikram Chaudhri, Senior Advocate (through video conferencing), assisted by Ms. Hargun Sandhu, Advocate, for the petitioner.

Mr. Zoheb Hussain, Special Counsel (through video conferencing), assisted by Mr. Lokesh Narang, Senior Panel Counsel, for the respondent.

Title: Sikander Singh v. ED

Citation: 2025 LiveLaw (PH) 318

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