Summary: The proviso to Section 223(1) of the BNSS, 2023, stipulates that a Magistrate shall not take cognizance of an offence without first affording the accused an opportunity to be heard. By its judgement in Kushal Kumar Agarwal v. Directorate of Enforcement[1] (“Kushal Kumar”),the Hon’ble Supreme Court has clarified that this safeguard under the BNSS shall also apply to complaints filed under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 (“PMLA”), after July 1, 2024, viz. the date BNSS came into force. The ratio from Kushal Kumar has since been followed inter alia by the High Courts of Delhi and Kerala. These judgements reinforce a significant procedural safeguard for accused persons even under the stringent PMLA, while highlighting a marked departure from the regime under the Code of Criminal Procedure, 1973 (“CrPC”). An associated issue is whether cognizance on a supplementary complaint under the PMLA, filed after July 1, 2024, will also be bound by the safeguard of Section 223(1) of the BNSS, if cognizance on the main complaint was taken prior to July 1, 2024.
Introduction
July 1, 2024, was a watershed date for the criminal legal regime in India, with the colonial era Indian Penal Code, 1860, Evidence Act, 1872 and CrPC being repealed and replaced with the BNS, BSA and BNSS, respectively.
From a procedural standpoint, the transition from the CrPC to the BNSS has introduced additional safeguards. One such provision is Section 223 of the BNSS, which corresponds to Section 200 of the CrPC. The proviso to Section 223 (1) of the BNSS provides that cognizance of an offence cannot be taken by the magistrate, without giving the accused an opportunity to be heard first. Section 200 of the CrPC does not contain a similar provision.
This new provision in BNSS has particular significance for prosecutions under special statutes such as the PMLA.
The question before the Hon’ble Supreme Court in Kushal Kumar, was the applicability of procedural safeguards provided under Section 223 of the BNSS to complainants under the PMLA, More particularly, whether non-compliance with the pre-cognizance hearing would render an order taking cognizance unlawful.
Supreme Court’s Judgement in Kushal Kumar
A complaint under Section 44(1)(b) of the PMLA was filed on August 2, 2024. The Ld. Special Judge took cognizance of the offence, without giving the appellant/ accused an opportunity of being heard. This was challenged before the Hon’ble Supreme Court on the ground that the proviso to Section 223(1) mandated a pre-cognizance hearing for the accused, with the advent of the BNSS.
While dealing with the issue, the Court referred to its previous judgements in Yash Tuteja v. Union of India [2]and Tarsem Lal v. Enforcement Directorate[3] to reiterate the position that the provisions of the CrPC, particularly Section 200-204 applied even to complaints under the PMLA. Expanding on this, the Court further held that after July 1, 2024, the corresponding provisions of the BNSS, viz. Section 223-226, would now apply to complaints filed under the PMLA.
In the present matter, since the complaint was filed on August 2, 2024, the Hon’ble Supreme Court set aside the order of the Ld. Special Judge solely on the ground of non-compliance of the mandatory provision of pre-cognizance hearing, provided under Section 223(1) of the BNSS.
Application of Kushal Kumar by High Courts
In Lakshay Vij v. Directorate of Enforcement[4] (“Lakshay Vij”),the ED filed a prosecution complaint on September 19, 2024. The Petitioner’s request for a pre-cognizance hearing was denied by the Ld. Trial Court, which instead took cognizance. before the Delhi High Court, the Petitioner challenged this order, arguing that it ignored the mandatory provision under Section 223 of the BNSS and its applicability even to complaints under the PMLA. It was emphasised that since the complaint was filed after July 1, 2024, it would be governed by BNSS and not the CrPC.
The Hon’ble Delhi High Court disposed of the matter in Lakshay Vij, in terms of based on the Kushal Kumar judgement, reiterating both the distinction between Section 200 CrPC and Section 223 BNSS, and the mandatory nature of the proviso to Section 223(1), which stipulates a hearing for the accused before taking cognizance.
In Sajil John v. Assistant Director, Directorate of Enforcement[5] (“Sajil John”), the Hon’ble Kerala High Court set aside an order taking cognizance, in contravention of Section 223(1), relying on the Hon’ble Supreme Court’s Kushal Kumar judgement.
The Supplementary Complaint Conundrum: Does Benefit under Section 223(1) BNSS Apply?
Often in proceedings under the PMLA, a complaint is filed, cognizance is taken, and thereafter, a ‘supplementary complaint’ is filed. With the difference in pre-cognizance hearing under the CrPC and the BNSS, an important issue has emerged for consideration — is whether this benefit under Section 223(1) extends to ‘supplementary complaints’ filed after July 1, 2024, where cognizance in the main complaint is taken before July 1, 2024, i.e. under CrPC (without hearing the accused).
A division bench of the Hon’ble Madras High Court recently dealt with this issue in G Ganesan v Deputy Director, Directorate of Enforcement [6] (“G Ganesan”). By a judgement dated December 8, 2025, the Hon’ble High Court held that the benefit under Section 223(1) BNSS will not apply to the ‘supplementary complaint’, since the main complaint was pending prior to July 1, 2024. Reference was also made to Section 531(2)(a) of the BNSS, which provides that if an investigation has commenced under CrPC, it shall continue under CrPC.
Analysis and looking ahead
The Kushal Kumar judgement, followed by Lakshay Vij and Sajil John,establish several important principles. First, they confirm that the procedural safeguards introduced by the BNSS apply to special statute prosecutions such as those under the PMLA. Second, they mandate a pre-cognizance hearing as a matter of right for accused persons in PMLA complaints filed after July 1, 2024, reinforcing the marked departure from the CrPC regime. Third, they establish that the requirement of Section 223(1) BNSS is mandatory and non-compliance is ground alone to set aside any cognizance orders.
Effectively, it provides accused persons with an earlier opportunity to challenge the prosecution case, potentially preventing protracted litigation in the bud, particularly in dubious matters. Interestingly, the scope and nature of this ‘pre-cognizance’ hearing remains to be fully defined, as this issue was not dealt with by the Hon’ble Supreme Court in Kushal Kumar.
A Supreme Court ruling on the issue of ‘supplementary complaints’ after July 1, 2024, as considered by the division bench of the Hon’ble Madras High Court in G Ganesan, is also awaited It will clarify the extent of procedural safeguards that are available for a ‘supplementary complaint’ filed after July 1, 2024, where the ‘complaint’ is pending and cognizance was taken before July 1, 2024.
In conclusion, it is now settled law that in any complaint under Section 44 of the PMLA, after July 1, 2024, it is mandatory that the accused is given a hearing, prior to cognizance being taken. The judgements have also clarified the application of BNSS to trials conducted under special statutes like the PMLA, while reinforcing legislative procedural safeguards. This approach effectively balances the state’s interest in prosecuting economic offences with the fundamental rights of accused persons to a fair hearing.
[1] 2025 SCCOnLine SC 1221
[2] 2024 SCC OnLine Sc 533
[3] (2024)7SCC 61
[4] 2025 SCC OnLine Del 8285
[5] 2025 SCC OnLine Ker 5532
[6] 2025 SCC OnLine Mad 11885