The Supreme Court has ruled that an accused under the Prevention of Money Laundering Act (PMLA) should be heard by a special ED court under Section 223(1) of the BNSS before cognisance is taken of the agency’s complaint, failure of which would amount to the violation of rights under Article 21 of the Constitution.
A bench of Justices M.M. Sundresh and M. Kotiswar Singh passed the judgment while allowing an appeal filed by PMLA accused Parvinder Singh, challenging the concurrent findings of a special PMLA court and Uttarakhand High Court that the accused had no right to be heard before cognisance was taken of the ED complaint.
The two courts had observed that since the ED had filed the complaint before July 1, 2024, when the CrPC was in force, the accused was not entitled to a prior hearing.
In Singh’s case, the ED had filed the complaint on June 24, 2023, before the PMLA court. The court took cognisance of the complaint only after July 1, 2024, when the BNSS, which replaced the CrPC, had already come into force.
The apex court concurred with the argument of advocate Ayush Kaushik, who appeared for Singh, that the amended BNSS mandated hearing of the accused before cognisance was taken of the complaint.
“Section 223 of the BNSS deals with the examination of a complainant. The first proviso to Section 223(1) of the BNSS prohibits the magistrate from taking cognisance of an offence, unless the accused is given an opportunity of being heard,” Justice Sundresh, who authored the judgment, said.
“We hold that the aforesaid proviso is substantive in nature, as it does not merely regulate the manner in which the proceedings are to be conducted, rather it confers a right upon the accused to be heard before taking cognisance which forms a part of the right of an accused to a fair trial enshrined under Article 21 of the Constitution of India, 1950,” he added.
The bench said the word “shall” in the said proviso had to be construed to be mandatory in nature.
“Resultantly, cognisance of an offence taken by a court without due compliance of the afore-stated proviso would be void ab initio. A substantive right conferred under the BNSS would definitely enure to the benefit of an accused against whom none of the proceedings envisaged under Section 531(2)(a) of the BNSS has been initiated,” the court said.
Accordingly, the bench directed the special court to afford an opportunity of hearing to the appellant within eight weeks.