'When Pre-Cognizance Hearing U/S 223(1) BNSS Is Not Conducted, Further Proceedings Are A Nullity In Law': Calcutta High Court

The Calcutta High Court has set aside an order taking cognizance of proceedings initiated under the Prevention of Money Laundering (PMLA) Act, upon observing that cognizance had been taken by the special court, without complying with the mandatory requirement of holding a pre-cognizance hearing under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Justice Sabyasachi Bhattacharya held: "In view of the above findings, the impugned order dated February 15, 2025, taking cognizance of the offences made out in the complaints against the petitioners under the PMLA, being patently violative of the first proviso to Section 223(1), BNSS, since no pre-cognizance opportunity of hearing was given to the petitioners, is vitiated in law and a nullity in the eye of law. Accordingly, the said order dated February 15, 2025 passed in ML Case No.12 of 2024 in connection with ECIR/KLZO-I/10/2023 is hereby set aside. Consequentially, the subsequent proceedings taken in pursuance of the said orders are also quashed, in view of the genesis of such proceedings itself being a nullity in the eye of law."

Background

The present pleas challenge the order of the Special Court under the Prevention of Money-Laundering Act, 2002 (for short, “the PMLA”), taking cognizance of offences under Sections 3 and 4, read with Section 70 of the PMLA, against each of the petitioners.

The petitioners further seek quashing of the proceedings initiated in connection with the complaint, being the ECIR/KLZO-I/10/2023 dated March 24, 2023.

Senior counsel appearing on behalf of the petitioners contended that the Special Judge took cognisance in violation of the First Proviso to Section 223 of the BNSS since no opportunity of hearing was given to any of the petitioners/accused persons prior to taking such cognizance.

Senior counsel contends that the provision of affording an opportunity of hearing to the accused prior to taking cognisance has been introduced in the new regime of criminal laws after the introduction of the BNSS and was absent in its predecessor statute, the Code of Criminal Procedure (Cr.P.C.).

It was argued that the said provision is mandatory and any contravention of the same leads to curbing the fundamental right to life and personal liberty, guaranteed under Article 21 of the Constitution of India, of the accused.

Senior counsel flagged the inconsistent approach adopted by the ED before different courts, which was stated to be contrary to the spirit and sanctity of the Supreme Court's order in Pankaj Bansal v. Union of India and others.

Senior counsel for the petitioners further submitted that the contention of the ED that the test of "prejudice‟ needs to be satisfied by the accused to vitiate a cognizance taken without an opportunity of being heard being given to the said accused is contrary to law. The non-compliance of the first proviso to Section 223(1), BNSS, it is argued, is not a curable irregularity but an incurable illegality.

ASGI, appearing on behalf of the ED, contends in reply that if a Magistrate is “not empowered by law” to take cognizance of an offence but erroneously takes cognizance in good faith, the proceedings shall not be set aside merely on that ground. It is argued that the expression “not empowered by law” would include non-compliance of the first proviso to Section 223, BNSS.

It was further argued that whereas Section 210(1)(a) of the BNSS has, with regard to complaints of which cognizance can be taken, incorporated the expression “including any complaint filed by a person authorised under any Special Law”, which was missing in the corresponding Section 190 of the Cr.P.C., Section 223, BNSS does not qualify the word “complaint” with any such phrase. Thus, the rigours of Section 223 do not, per se, apply to a cognizance under Section 210 where the complaint is lodged under any Special Law such as the PMLA.

Court's verdict

Upon hearing the counsel, the court framed several issues for decision. First, it looked at whether Section 506(c), BNSS mitigates the irregularity of noncompliance of the first proviso to Section 223, BNSS and whether precognizance hearing under Section 223, first proviso is a mere formality, the contravention of which does not render the consequential proceedings invalid.

It was observed that Section 210 explains the concept of “empowered by law”. Section 223 is an umbrella provision which governs and circumscribes Section 210, but is itself not the source of power of the Magistrate to take cognizance of offences in the first place. Such power is derived from Section 210 itself. Thus, the expression “empowered by law” used in Section 506 relates to the authority of the Magistrate, be it territorial or hierarchical or otherwise, of the Magistrate to take cognizance under Section 210 in the first place and has nothing to do with the compliance under Section 223, first proviso, the court noted.

It was noted that the Legislature, has deliberately introduced the first proviso to Section 223, thereby conferring on the accused the right to have an opportunity of hearing at the pre-cognizance stage, despite being aware of the subsequent stages of a proceeding and criminal trial where a right of hearing is again given to the accused.

"Such deliberately worded reflection of the "Legislatures‟ intention, as embodied in the first proviso to Section 223, cannot be effaced or discarded to the waste paper basket, be it by the ED or by the Court of Law, it was held.

It was held that Sections 223 and 210 have to be read in conjunction. If one is divorced from the other, both lose relevance. Hence, a further burden, where it is not provided in the statute itself, cannot be imposed on the accused, in case of violation of the first proviso to Section 223(1), BNSS, to show prejudice or miscarriage of justice.

The right of hearing prior to cognizance, being a necessary incident of the maxim Audi Alteram Partem, which is a cardinal tenet of natural justice and a part and parcel of the right to life and personal liberty, is self-effulgent and need not be illumined by the further borrowed light of “prejudice” or “miscarriage of justice, the court said.

"Nothing further is required to be proved to vitiate a cognizance if there is a violation of the first proviso to Section 223...mandatory, language and no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of hearing. Thus, the very fact that an opportunity of hearing at the pre-cognizance stage was not be given to the accused per se vitiates the cognizance, since such cognizance becomes a nullity in the eye of law as it could not be taken in the first place in view of the negative language of the first proviso to Section 223(1), BNSS," it was concluded.

Also read: 'Notice Must Be Issued To Accused Before Conducting Pre-Cognizance Hearing U/S 223 Of BNSS': Calcutta High Court Frames Guidelines

Case: Tutu Ghosh Vs. Enforcement Directorate

Citation: 2025 LiveLaw (Cal) 174

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