Supreme Court To Decide If S.223 BNSS Will Apply When Cognizance Is Taken Of Complaints Filed Before July 1, 2024

The Supreme Court has issued notice on a petition which raises an important legal question whether Section 223 of the Bharatiya Nagarik Surakhsa Sanhita (BNSS) 2023 will apply when cognizance is taken after July 1, 2024 of complaints filed before July 1, 2024.

The BNSS came into effect on July 1, 2024. As per the proviso to Section 223(1) of the BNSS, the accused must be given an opportunity to be heard before cognizance is taken of a complaint. Such a provision did not exist in the Code of Criminal Procedure (CrPC), which the BNSS replaced.

The present issue arose with respect to a prosecution complaint filed by the Enforcement Directorate. While the complaint was filed on June 26, 2024, the Special Court took cognizance on July 2, 2024. The accused challenged the cognizance order, contending that it was illegal for not complying with Section 223 BNSS.

However, the Uttarakhand High Court rejected the challenge on the reasoning that since the complaint was filed before the BNSS came into effect, Section 223 was not applicable.

The High Court had relied on Section 531 of the BNSS, which states that any appeal, application, trial, inquiry, or investigation that was pending before 01.07.2024 shall continue to be governed by the Code of Criminal Procedure, 1973 (Cr.P.C.), and not by the BNSS. The petitioner challenged this reasoning, saying that no proceeding was pending against him before July 1, 2024.  The petitioner contended that the mere presentation or filing of the complaint before the Special Judge cannot be deemed to constitute the initiation of an inquiry within the meaning of Section 2(g) of Cr.P.C. An inquiry, as contemplated under the law, can be said to have commenced only when the Judge applies judicial mind to the complaint and proceeds to take cognizance in terms of law laid down. According to the petitioner, the proceedings commenced only on July 2, 2024, when cognizance was taken.

It was also contended that although the complaint was submitted by the Directorate of Enforcement on 24.06.2024, the same was formally filed before the Ld. Special Court only on 02.07.2024. 

 A bench comprising Justice MM Sundresh and Justice NK Singh issued notice on the petition to the ED. The bench also clarified that further proceedings will be subject to the result of the petition.

Recently, the Supreme Court, in Kushal Kumar Agarwal v. Directorate of Enforcement, had held that before taking cognizance of a money laundering complaint under section 44(1)(b) of the Prevention of Money Laundering Act (PMLA), the special court has to give opportunity to the accused to be heard as per the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023. However, the said judgment did not address the issue whether the provision is applicable to complaints filed before July 1, 2024.

The petitioner, Parvinder Singh, was represented by Ayush Kaushik and Abhay Pratap Singh, AOR; the ED was represented by Special Counsel Zoheb Hussain.

Case : Parvinder Singh v. Directorate of Enforcement  | SLP (Crl) 12055/2025