Introduction:

In Sikander Singh v. Enforcement Directorate, 2025 LiveLaw (PH) 318, the Punjab and Haryana High Court examined the applicability of Section 223 of the Bhartiya Nyaya Suraksha Sanhita, 2023 (BNSS) to complaint cases instituted before its enforcement date of July 1, 2024. The matter arose from a prosecution complaint filed under Sections 44 and 45 of the Prevention of Money Laundering Act (PMLA) against the petitioner, Sikander Singh. The complaint was lodged before July 1, 2024, but the court’s judicial consideration and taking of cognizance occurred after BNSS came into force. Singh contended that Section 223 BNSS—unlike the erstwhile Section 200 CrPC—introduced a first proviso granting an accused the right to be heard before cognizance is taken, and this beneficial right should extend even to pending cases filed before the new law’s commencement. The Enforcement Directorate opposed the plea, invoking the savings clause under Section 531 BNSS to argue that the earlier CrPC should govern such cases. Justice Tribhuvan Dahiya, applying the rule of beneficial construction and principles of natural justice, delivered a ruling clarifying the threshold for when an “inquiry” commences under the savings clause and concluded that the petitioner was entitled to the benefit of prior hearing.

Arguments by the Petitioner:

The petitioner, represented by Senior Advocate Vikram Chaudhri and assisted by Advocate Hargun Sandhu, argued that Section 223 BNSS marked a substantive procedural advancement by expressly requiring an opportunity for the accused to be heard before cognizance in complaint cases. While Section 223 is largely pari materia to the repealed Section 200 CrPC, the first proviso introduced a new safeguard, rooted in principles of fairness under Articles 14 and 21 of the Constitution. The petitioner stressed that issuing process in a criminal case carries severe implications, and the Legislature’s intent was to protect individuals from unnecessary harassment by ensuring that a judicial officer considers their side before proceeding. In the present case, although the prosecution complaint was filed on June 27, 2024—prior to BNSS enforcement—the actual judicial mind was applied only after July 1, 2024. The Sessions Court had merely performed an administrative function of forwarding the complaint to the Special Court on July 4, 2024, without any evaluation of allegations or evidence. Cognizance was ultimately taken on December 5, 2024, when BNSS was operative. Since the judicial act triggering issuance of process occurred post-BNSS, the petitioner argued that Section 223’s proviso must apply, following the doctrine of beneficial construction. The petitioner further invoked precedents where ex post facto application of procedural laws had been allowed to confer reduced punishment or additional safeguards to accused persons, contending that similar reasoning applied here.

Arguments by the Respondent:

The Enforcement Directorate, represented by Special Counsel Zoheb Hussain and assisted by Senior Panel Counsel Lokesh Narang, countered by relying on Section 531 of the BNSS, which contains the repeal and savings clause. They argued that any trial, inquiry, investigation, or application pending immediately before BNSS enforcement must be conducted under the provisions of the repealed CrPC. Since the prosecution complaint was filed before July 1, 2024, they contended that the “inquiry” had already commenced, thereby attracting the protection of the savings clause and excluding BNSS applicability. The ED asserted that the petitioner’s argument undermined legislative intent, which was to apply BNSS prospectively, and allowing retrospective application of Section 223 would create inconsistency and uncertainty in ongoing cases. Furthermore, the respondent maintained that procedural safeguards under BNSS were not intended to reopen or alter proceedings already initiated under the CrPC framework. According to their reading, the filing of the complaint itself constituted initiation of inquiry, and the petitioner’s interpretation would unnecessarily delay proceedings and benefit accused persons through procedural technicalities.

Court’s Judgment:

Justice Tribhuvan Dahiya began by recognizing the transformative change introduced by the first proviso to Section 223 BNSS, which, unlike Section 200 CrPC, required the Magistrate to grant the accused a prior hearing before taking cognizance in complaint cases. The Court underscored that this right was in line with the principles of natural justice and constitutional guarantees of a fair trial under Articles 14 and 21. The Court observed that issuance of process significantly affects the accused, and it was precisely to mitigate such repercussions that the Legislature incorporated the new safeguard. Turning to the interpretation of the savings clause in Section 531 BNSS, the Court held that for the purposes of determining whether a proceeding was “pending” before BNSS enforcement, one must assess when an “inquiry” had truly commenced. Referring to Section 2(g) CrPC, the Court reasoned that an inquiry requires application of judicial mind to allegations, including taking evidence on oath or assessing prima facie grounds for issuing process. Mere filing or presentation of a complaint, or its administrative forwarding to the competent court, does not amount to an inquiry. In this case, the Additional Sessions Judge had no jurisdiction to take cognizance under PMLA and had merely forwarded the file. Judicial application of mind occurred only when the Special Court took cognizance on December 5, 2024—well after BNSS came into force. Therefore, the complaint did not fall within the ambit of pending “inquiry” under Section 531(2)(a) BNSS. The Court drew an analogy to situations where procedural amendments benefiting accused persons are applied to ongoing cases, noting that the rule of beneficial construction supports extending procedural safeguards unless expressly prohibited. The Court concluded that since cognizance was taken post-BNSS, the accused was entitled to the procedural right of prior hearing under Section 223’s first proviso. Consequently, the impugned order was set aside, and the petitioner’s plea was allowed, directing that the accused be given an opportunity to be heard before cognizance.