Written By: Apoorv Agarwal, Priyanshu Raj
The transition from the Code of Criminal Procedure, 1973 (CrPC) to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has introduced several reforms intended to strengthen procedural fairness in criminal proceedings. Among the most significant is the first proviso to Section 223(1) BNSS, which requires the court to afford the accused an opportunity to be heard before a court takes cognizance of a complaint.
The scope of this safeguard has now come under judicial scrutiny before the Delhi High Court in Amit Kumar @ Amit Pilwan v. Directorate of Enforcement Case No. CRL.M.C. 4134 of 2026 and Bijander Singh Chaprana v. Directorate of Enforcement Case No. CRL.M.C. 4135 of 2026 where the Court is examining whether this protection applies even to complaints instituted before the BNSS came into force.
Background
The petitions challenged an order dated 08 April 2026, by which the Special Court, PMLA Delhi had taken cognizance of a complaint filed by the Directorate of Enforcement under the Prevention of Money Laundering Act, 2002 (PMLA).
The Petitioners contended that after the enforcement of the BNSS, the Special Court was required to comply with the mandate of Section 223 by granting them an opportunity to be heard before taking cognizance. According to the petitioners, the order taking cognizance without such a hearing was contrary to the newly introduced statutory safeguard.
On the other hand, the Directorate of Enforcement argued that the prosecution complaint had originally been filed in 2021, long before the BNSS came into force. Therefore, according to the ED, the requirement of a pre-cognizance hearing could not be applied retrospectively to proceedings initiated under the earlier procedural law.
Recognizing that the matter raises an important question of law, the Delhi High Court issued notice to the Respondent agency, and requested the Trial Court to defer further proceedings until the High Court considers the issue.
The Legal Foundation of the Petitioners’ Case rests on the recent decision of the Supreme Court in Parvinder Singh v. Directorate of Enforcement (2026) SCC OnLine SC 903, where in the Court held that the accused must be given an opportunity of hearing under the first proviso to Section 223(1), (BNSS), even if the prosecution complaint itself had been filed prior to 1 July 2024. The court clarified that failure to provide such hearing renders the cognizance order void ab initio.
The Supreme Court held that the right to be heard before cognizance is not merely procedural, but is a substantive safeguard flowing from the guarantee of a fair trial under Article 21 of the Constitution. The Court further held that the use of the word “shall” makes the requirement mandatory, and consequently, a cognizance order passed without granting such an opportunity would be void ab initio.
Equally significant was the Supreme Court’s clarification that the procedural framework governing complaint cases under the BNSS applies to proceedings under the PMLA, unless there exists any inconsistency between the two enactments. The Court reaffirmed that the Special Court under the PMLA is not exempt from complying with the procedural safeguards contained in the BNSS merely because it exercises jurisdiction under a special statute.
The Petitioners relied upon these principles to contend that the Special Court ought to have granted them an opportunity before taking cognizance, notwithstanding the fact that the complaint itself had been filed before the commencement of the BNSS.
The Petitioners also drew support from the Supreme Court’s judgment in Pavana Dibbur v. Directorate of Enforcement (2023) 15 SCC OnLine SC 1586, which elaborates the foundational principles governing prosecutions under the PMLA.
In the said decision, the Supreme Court reiterated that Yash Tuteja & Anr. v. Union of India & Ors., 2024 SCC OnLine SC 533, while interpreting Section 46 of the PMLA, categorically observed that there is no provision in the PMLA that overrides the procedure envisaged under Section 200–204 of the CrPC i.e., Section 223–227 of BNSS. The relevant extract is reproduced as under:
By relying upon Pavana Dibbur, the Petitioners sought to emphasise that prosecutions under the PMLA continue to be governed by established principles of criminal jurisprudence and procedural fairness, and that the safeguards introduced under the BNSS cannot be ignored while exercising the power of taking cognizance.
Although the present order of Delhi High Court is interlocutory in nature, the issue involved has far-reaching implications.
The Delhi High Court is expected to clarify whether the right to a pre-cognizance hearing under Section 223 BNSS is available only in complaints instituted after the BNSS came into force or whether it also extends to pending complaints where cognizance is taken after the new procedural law became operational.
The answer to this question is likely to influence not only proceedings under the PMLA but also complaint cases under several other special statutes that follow the complaint procedure before Special Courts.
The controversy also raises a larger constitutional issue. If the right recognised under Section 223 BNSS is indeed a substantive protection intended to strengthen the guarantee of a fair hearing, can such a safeguard be denied merely because the complaint was filed under the previous procedural regime, even though the act of taking cognizance occurred after the BNSS had already come into force?
That is the question the Delhi High Court is now called upon to answer.
Conclusion
The Delhi High Court’s order does not decide the controversy at this stage. However, by entertaining the petitions and staying further proceedings before the Trial Court, the Court has acknowledged that the issue deserves detailed judicial examination.
The eventual decision is expected to become an important precedent on the interpretation of Section 223 BNSS and may significantly shape the future course of complaint proceedings under the PMLA and other special legislations. More importantly, it may determine how far the procedural safeguards introduced by the BNSS extend in protecting the rights of an accused at the very threshold of criminal prosecution.
