Introduction:
The Punjab and Haryana High Court has held that obtaining sanction for prosecution against a public servant does not exempt a Special Court from complying with the independent procedural safeguards prescribed under Section 223(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The Court clarified that before taking cognizance of a complaint filed by the Enforcement Directorate (ED) under the Prevention of Money Laundering Act, 2002 (PMLA), against a public servant, the Court must provide the proposed accused an opportunity to make submissions regarding the circumstances leading to the alleged offence and obtain a factual report from an officer superior to the public servant.
Justice Sumeet Goel, while deciding a petition filed by a former Chief General Manager (Finance) of the National Hydroelectric Power Corporation (NHPC), quashed the cognizance and summoning order passed by the Special Judge (PMLA), Gurugram. The High Court held that the requirements under Section 223(2) BNSS are mandatory and independent of the requirement of prior sanction for prosecution under Section 218 BNSS.
The central question before the High Court was whether the grant of sanction by the competent authority under Section 218 BNSS could be treated as sufficient compliance with the separate requirement under Section 223(2)(b), which obligates the Court to obtain a factual report from the superior officer of the public servant before taking cognizance.
The dispute arose from a corruption investigation initiated against the petitioner and his wife. In April 2023, the Central Bureau of Investigation (CBI) registered a First Information Report against them under Section 13(2) read with Section 13(1)(b) of the Prevention of Corruption Act, 1988, along with Section 109 of the Indian Penal Code, 1860.
Subsequently, in November 2023, the Enforcement Directorate registered an Enforcement Case Information Report (ECIR) under the PMLA and initiated an investigation into the alleged acquisition of assets disproportionate to the petitioner’s known sources of income.
According to the ED, the petitioner and his wife had allegedly acquired assets worth approximately ₹1.04 crore, representing around 112 per cent of the petitioner’s known income. The agency treated the alleged disproportionate assets as proceeds of crime and proceeded against the accused under the PMLA.
On March 10, 2025, the ED filed a prosecution complaint before the Special Court. Prior to this, the Chairman and Managing Director of NHPC had granted sanction for prosecution on February 21, 2025, after examining the investigation material placed before the authority.
On April 23, 2026, the Special Judge (PMLA), Gurugram, took cognizance of the offence under Section 3 of the PMLA, punishable under Section 4, and issued summons to the petitioner and his wife.
Aggrieved by the order, the former NHPC officer approached the Punjab and Haryana High Court, contending that the Special Court had failed to obtain the mandatory factual report from his superior officer before taking cognizance, as required under Section 223(2)(b) BNSS.
The petitioner argued that the existence of a sanction order could not substitute the independent procedural requirement imposed upon the Court under the BNSS. The ED, on the other hand, maintained that the sanctioning authority had already examined the investigation material and that the petitioner had also been given opportunities to explain his position during the investigation and before the Special Court.
After examining the statutory provisions, legislative history and judicial precedents, the High Court accepted the petitioner’s challenge. It clarified that the safeguards under Section 223(2) must be independently complied with before cognizance can be taken against a public servant.
The Court also addressed an important procedural gap in the provision. Although Section 223(2)(b) requires the superior officer’s factual report to be obtained before cognizance, it does not prescribe a specific period within which such a report must be submitted. To prevent unnecessary delays, the Court laid down timelines for furnishing the report and recognised the power of the concerned Court to initiate appropriate action against an officer who fails to comply.
Arguments of the Parties:
Arguments on behalf of the Petitioner:
The petitioner challenged the cognizance and summoning order dated April 23, 2026, primarily on the ground that the Special Court had failed to comply with the mandatory requirements of Section 223(2) BNSS.
His principal contention was that the provision creates specific procedural safeguards for public servants facing criminal complaints. Before taking cognizance, the Court must provide the proposed accused an opportunity to make submissions concerning the circumstances leading to the alleged offence and must also call for a factual report from an officer superior to the public servant.
According to the petitioner, these requirements are not optional procedural formalities. They constitute mandatory conditions that must be fulfilled before the Court exercises its jurisdiction to take cognizance.
The petitioner argued that the Special Court had proceeded with the ED’s prosecution complaint without calling for the factual report contemplated under Section 223(2)(b). Consequently, the cognizance order had been passed in violation of an express statutory requirement.
He further maintained that the grant of sanction under Section 218 BNSS could not cure this defect. Sanction for prosecution and the superior officer’s factual report serve different purposes and are governed by separate statutory provisions. Therefore, compliance with one provision cannot automatically be treated as compliance with the other.
The petitioner also questioned the reliance placed on the statements recorded by the ED under Section 50 of the PMLA. He contended that his participation in the investigation and the recording of his statements could not replace the specific opportunity contemplated under Section 223(2).
Similarly, the fact that he was heard by the Special Court before cognizance could not dispense with the separate obligation to obtain a factual report from his superior officer.
The petitioner’s case was that the legislature had deliberately introduced additional safeguards under the BNSS to ensure that complaints against public servants are examined through an appropriate procedural mechanism before judicial proceedings are initiated.
These safeguards, he argued, must receive their full effect and cannot be diluted merely because the prosecution has obtained administrative approval or sanction from the competent authority.
The petitioner accordingly sought the quashing of the cognizance and summoning order on the ground that the Special Court had exercised its jurisdiction without satisfying the statutory preconditions.
Arguments on behalf of the Enforcement Directorate:
Additional Solicitor General Satya Pal Jain appeared for the Enforcement Directorate and opposed the petitioner’s challenge.
The ED submitted that the prosecution against the petitioner had been initiated after obtaining the requisite sanction from the competent authority.
It pointed out that the Chairman and Managing Director of NHPC had granted sanction for prosecution on February 21, 2025, after examining the material collected during the ED investigation. The sanction order was also placed before the Special Court while the prosecution complaint was being considered.
According to the ED, the examination of the investigation material by the sanctioning authority substantially fulfilled the objective behind Section 223(2)(b) BNSS. The agency argued that insisting upon another factual report from the superior officer would amount to an unnecessary procedural duplication.
The ED further submitted that the petitioner had already been given opportunities to explain his position during the investigation. His statements had been recorded under Section 50 of the PMLA in March 2024 and February 2025.
It was therefore argued that the petitioner had been made aware of the allegations and had an opportunity to place his explanation before the investigating agency.
The ED also pointed out that the petitioner had been heard by the Special Court before cognizance was taken. Consequently, according to the agency, the requirement of providing an opportunity to the proposed accused had already been substantially fulfilled.
The respondent relied upon the decisions in Tarsem Lal v. Directorate of Enforcement, Yash Tuteja v. Union of India and Kaushal Kumar Aggarwal v. Enforcement Directorate to support its interpretation of the relationship between the PMLA and the general criminal procedure.
The ED’s broader submission was that the PMLA constitutes a special legislation containing its own procedural framework and that the requirements of general criminal procedure should not be applied in a manner that unnecessarily interferes with proceedings under the special statute.
It also sought to distinguish the requirement of obtaining a superior officer’s report from the requirement of sanction for prosecution, arguing that the examination undertaken by the sanctioning authority had already addressed the relevant concerns.
However, the principal issue before the High Court was whether the statutory language permitted the Court to dispense with the specific report required under Section 223(2)(b) merely because the prosecution had secured sanction and the accused had otherwise been heard.
Court’s Judgment:
The Punjab and Haryana High Court allowed the petition and quashed the cognizance and summoning order dated April 23, 2026, passed by the Special Judge (PMLA), Gurugram.
Justice Sumeet Goel held that the procedure prescribed under Chapter XVI of the BNSS, including Section 223(2), applies to prosecution complaints filed before the Special Court under Section 44(1)(b) of the PMLA.
The Court clarified that the PMLA does not completely exclude the application of the general criminal procedure. Rather, the provisions of the BNSS continue to govern criminal proceedings unless the special legislation expressly provides otherwise.
Applicability of Section 223(2) BNSS to PMLA proceedings:
The first important question examined by the Court was whether the procedural safeguards under Section 223(2) BNSS apply to complaints filed by the ED before a Special Court under the PMLA.
Section 4(2) BNSS provides that offences under other laws are to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the BNSS, subject to any enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
Similarly, Sections 46 and 65 of the PMLA preserve the relevance of the general criminal procedure in matters where the special legislation does not prescribe a different procedure.
Section 44(1)(b) of the PMLA provides for the filing of a complaint before the Special Court by the authorised authority for the purpose of taking cognizance of an offence under the Act.
The Court observed that merely because the prosecution is initiated under a special statute does not mean that every provision of the general procedural law becomes inapplicable.
Where the PMLA does not expressly exclude or replace a particular procedural requirement, the relevant provisions of the BNSS continue to operate.
The Court relied upon the Supreme Court’s decision in Tarsem Lal v. Directorate of Enforcement, along with Yash Tuteja v. Union of India and Kaushal Kumar Aggarwal v. Enforcement Directorate, while examining the relationship between the PMLA and the general criminal procedure.
It also considered the Supreme Court’s decision in Parvinder Singh v. Enforcement Directorate, SLP (Crl.) No. 12055 of 2025, decided on May 19, 2026.
In Parvinder Singh, the Supreme Court considered the nature of the pre-cognizance hearing contemplated under the first proviso to Section 223(1) BNSS and held that the opportunity provided to the proposed accused is substantive in nature.
Justice Goel noted that the decision itself arose from a PMLA prosecution, making its observations relevant to the issue under consideration.
The High Court consequently held that the complaint procedure prescribed under Chapter XVI of the BNSS, including Section 223(2), applies to prosecution complaints filed before the PMLA Special Court.
Section 223(2) creates mandatory safeguards for public servants:
The Court next examined the precise requirements of Section 223(2) BNSS.
The provision deals with complaints involving public servants in relation to acts connected with their official functions or duties. It requires the Court to provide the concerned public servant an opportunity to make assertions regarding the circumstances leading to the alleged offence.
It also requires the Court to obtain a factual report from the public servant’s superior officer before proceeding to take cognizance.
The Court held that these requirements are mandatory and constitute conditions precedent to the exercise of jurisdiction.
Importantly, the two safeguards are distinct. The opportunity given to the proposed accused and the factual report from the superior officer are separate statutory requirements. Compliance with one does not automatically satisfy the other.
The High Court observed that an order taking cognizance without complying with these requirements would be jurisdictionally invalid, void ab initio and non-est in the eyes of law.
In other words, the Court cannot treat these requirements as optional procedural steps that may be ignored whenever the prosecution considers them unnecessary.
The legislative purpose behind the provision must be respected, particularly because it provides an additional procedural layer before a public servant is subjected to criminal proceedings through a complaint.
Sanction under Section 218 and factual report under Section 223(2) are independent safeguards:
One of the most significant aspects of the judgment is the distinction drawn between prior sanction under Section 218 BNSS and the factual report required under Section 223(2)(b).
The ED had argued that the sanction granted by the NHPC Chairman and Managing Director substantially satisfied the requirement of obtaining a superior officer’s report because the sanctioning authority had already examined the investigation material.
The High Court rejected this argument and held that the two provisions operate in different fields and serve different purposes.
Section 218 BNSS, corresponding to Section 197 of the erstwhile Code of Criminal Procedure, provides protection to certain public servants by requiring prior sanction before a Court can take cognizance of specified offences allegedly committed while acting or purporting to act in the discharge of official duty.
The protection under Section 218 is restricted to a particular category of public servants who cannot be removed from their office except by or with the sanction of the Government.
Section 223(2), however, has a broader application. It extends to public servants falling within the statutory definition of that expression under Section 2(28) of the Bharatiya Nyaya Sanhita, irrespective of their designation, rank or the authority competent to remove them from office.
The Court also identified a difference in the language used by the two provisions.
Section 218 refers to acts committed in the discharge of official duty, whereas Section 223(2) employs the broader expression “official functions or duties”.
The distinction in statutory language was considered relevant to understanding the separate scope of the two protections.
In this regard, the Court referred to decisions of the Kerala High Court in Suhyb P.J., the Andhra Pradesh High Court in K. Manasa and the Gujarat High Court in Rajdipsingh Narsinh Nakum.
Justice Goel observed:
“In stark contrast, Section 223(2) BNSS employs a much broader statutory protection, extending its protection to complaints against all the individuals falling within the definition of a ‘public servant’ as provided for in Section 2(28) of the BNS, irrespective of their designation, rank or the mode of their removal from service/office.”
The Court explained that treating the two provisions as interchangeable would create an unreasonable situation for public servants who may not fall within the protective scope of Section 218 but are nevertheless entitled to the safeguards under Section 223(2).
Accordingly, the Court characterised the two provisions as independent and non-overlapping safeguards, each of which must be given its full statutory effect.
Legislative intention and the principle against rendering a provision redundant:
The High Court also examined the legislative purpose behind introducing Section 223(2) and referred to the Parliamentary Standing Committee’s 247th Report.
It relied upon the established principle of statutory interpretation expressed through the Latin maxim ut res magis valeat quam pereat. The principle requires that a legal provision should, as far as possible, be interpreted in a manner that allows it to operate effectively rather than rendering it meaningless.
The Court reasoned that if the grant of sanction under Section 218 were treated as sufficient compliance with Section 223(2)(b), the requirement of obtaining a factual report from the superior officer would become redundant.
Such an interpretation would effectively deprive Section 223(2)(b) of its independent purpose.
The Court further explained that the two provisions have different implications for the exercise of judicial discretion.
Under Section 218, prior sanction is a jurisdictional requirement in cases falling within its scope. In the absence of the requisite sanction, the Court cannot proceed to take cognizance where such sanction is legally necessary.
Section 223(2)(b), on the other hand, requires the Court to obtain and consider a factual report from the superior officer before taking cognizance.
However, the Court is not bound to accept the conclusions or opinions contained in that report.
The superior officer’s report is intended to provide relevant factual information that may assist the Court in independently examining the circumstances surrounding the alleged offence.
The ultimate decision regarding whether cognizance should be taken remains within the judicial domain.
Thus, the report does not operate as an administrative veto over criminal proceedings. It is an additional source of information that the Court must consider before exercising its judicial discretion.
This distinction was central to the Court’s conclusion that a sanction order cannot substitute for the report contemplated under Section 223(2)(b).
Time limit for submission of the superior officer’s report:
Another significant issue addressed by the High Court was the absence of a prescribed time limit for submitting the factual report under Section 223(2)(b).
Although the provision requires the Court to obtain the report before taking cognizance, it does not specify how quickly the superior officer must furnish it.
The Court acknowledged that prescribing statutory timelines is ordinarily the responsibility of the legislature.
However, it observed that the absence of a time limit could result in unnecessary delays and potentially allow administrative inaction to obstruct judicial proceedings.
The Court considered that procedural requirements should not become instruments for indefinite postponement of criminal proceedings or undermine the right to a speedy trial.
To address this legislative gap, Justice Goel invoked the inherent powers of theHigh Court under Section 528 BNSS.
The Court referred to the observation of Justice Benjamin Card