Introduction:

The Supreme Court of India, in Parvinder Singh v. Directorate of Enforcement, has delivered a significant ruling on the scope and effect of procedural safeguards introduced under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The judgment, reported as 2026 LiveLaw (SC) 522, marks one of the earliest authoritative interpretations of the first proviso to Section 223(1) BNSS and clarifies that the requirement of granting an accused an opportunity of hearing before taking cognizance in a complaint case is not a mere procedural formality, but a substantive right rooted in Article 21 of the Constitution.

The decision was rendered by a Bench comprising Justices M.M. Sundresh and N. Kotiswar Singh while hearing an appeal filed by Parvinder Singh against the Directorate of Enforcement (ED) in proceedings arising under the Prevention of Money Laundering Act, 2002 (PMLA). The Court ultimately set aside the cognizance order passed by the Special Court as well as the Uttarakhand High Court’s judgment affirming the same, holding that the failure to provide the accused with a pre-cognizance hearing, as mandated by Section 223(1) BNSS, rendered the entire proceedings void ab initio.

The case arose out of an Enforcement Case Information Report (ECIR) registered by the ED against the appellant in July 2023. Following investigation, the ED filed a prosecution complaint under Sections 44 and 45 of the PMLA before the Special Court on June 24, 2024. Significantly, this complaint was filed before the BNSS came into force on July 1, 2024. However, cognizance of the complaint was taken by the Special Court only on July 2, 2024, after the new criminal procedural regime had become operational.

The appellant challenged the legality of the cognizance order on the ground that the newly introduced first proviso to Section 223(1) BNSS mandated that an accused must be granted an opportunity of hearing before cognizance is taken in a complaint case. According to the appellant, since cognizance was admittedly taken after the commencement of the BNSS, the Special Court was duty-bound to comply with the statutory safeguard. The failure to do so, it was argued, vitiated the proceedings from inception.

The controversy before the Supreme Court, therefore, involved multiple important questions concerning the transition from the Code of Criminal Procedure, 1973 (CrPC) to the BNSS, the applicability of procedural safeguards to PMLA proceedings, the interpretation of the savings clause under Section 531 BNSS, and the constitutional significance of pre-cognizance hearing rights. The judgment assumes considerable importance because it reinforces the principle that procedural fairness forms an inseparable component of criminal justice administration and that even special statutes like the PMLA cannot dilute safeguards expressly introduced under general criminal law unless there exists a direct inconsistency.

Arguments of the Parties:

The appellant, Parvinder Singh, assailed the cognizance order primarily on the basis of the first proviso to Section 223(1) BNSS. It was argued that the proviso unequivocally mandates that before taking cognizance in a complaint case, the Magistrate or Special Court must grant the proposed accused an opportunity of hearing. Since the Special Court had taken cognizance on July 2, 2024, after the BNSS had come into force, compliance with the newly introduced provision was mandatory. The appellant contended that the requirement was not directory in nature but constituted a substantive safeguard intended to protect the rights of the accused.

Senior counsel appearing for the appellant submitted that the right to be heard before cognizance forms part of the broader constitutional guarantee of fair procedure under Article 21 of the Constitution. It was argued that the legislature consciously introduced the safeguard under the BNSS to prevent mechanical cognizance orders and to ensure that courts apply judicial mind after hearing the person likely to be prosecuted. According to the appellant, once the law had come into operation, every court was obligated to adhere to its mandate unless expressly excluded.

The appellant further argued that the PMLA does not contain any provision inconsistent with Sections 223 to 228 of the BNSS governing complaint cases. Consequently, the general procedural framework applicable to complaint proceedings under criminal law would continue to apply to prosecution complaints filed by the ED under Section 44 of the PMLA. Reliance was placed on earlier Supreme Court judgments, including Tarsem Lal v. Directorate of Enforcement, Yash Tuteja v. Union of India, and Kaushal Kumar Agarwal v. Directorate of Enforcement, wherein the Court had recognized that proceedings before the Special Court under the PMLA are complaint-based proceedings governed by the general procedural law unless specifically excluded.

Another major submission advanced by the appellant concerned the interpretation of the savings clause contained in Section 531(2)(a) BNSS. The ED had argued that since the complaint was filed before July 1, 2024, the proceedings would continue to be governed by the old CrPC. Countering this contention, the appellant argued that the mere filing or numbering of a complaint prior to the commencement of the BNSS did not amount to commencement of an inquiry or trial. Since cognizance itself was taken after the new statute became operational, the accused became entitled to all substantive safeguards introduced under the BNSS.

The appellant also rejected the ED’s contention regarding prejudice. It was submitted that where a statute mandates compliance with a substantive procedural safeguard, non-compliance itself constitutes illegality. Therefore, an accused need not separately demonstrate actual prejudice arising from the violation. The appellant emphasized that proceedings initiated in breach of a mandatory statutory condition are void irrespective of whether prejudice can be independently established.

On the other hand, the Directorate of Enforcement strongly opposed the appeal and defended the cognizance order. The ED argued that the PMLA is a self-contained and standalone legislation having its own procedural structure. According to the agency, the provisions of the BNSS governing complaint cases could not automatically override the special mechanism contemplated under the PMLA.

The ED further contended that since the prosecution complaint had already been filed on June 24, 2024, before the BNSS came into force, the proceedings would continue to be governed by the old CrPC by virtue of the savings clause under Section 531 BNSS. It was argued that permitting the accused to invoke Section 223(1) BNSS would amount to giving retrospective effect to the new procedural law, which was impermissible in the absence of express legislative intent.

The Enforcement Directorate also maintained that even assuming the proviso applied, the accused had failed to establish any prejudice caused due to the absence of a hearing prior to cognizance. The ED submitted that cognizance merely signifies judicial notice of allegations and does not determine guilt. Therefore, according to the agency, the omission to hear the accused before cognizance could at best amount to a curable procedural irregularity and not an illegality warranting nullification of the proceedings.

Additionally, the ED attempted to argue that the expression “shall” occurring in the proviso should not automatically be interpreted as mandatory. The respondent contended that procedural provisions are generally construed as directory unless non-compliance demonstrably affects substantive rights. Since the accused would still receive full opportunity during trial, the ED argued that the absence of a pre-cognizance hearing did not materially prejudice the defense.

The respondent also emphasized the serious nature of allegations involved in the money laundering proceedings and urged the Court not to permit technical objections to obstruct prosecutions under the PMLA. According to the ED, interpreting Section 223(1) BNSS as mandatory could unnecessarily delay and complicate complaint proceedings under special statutes.

Court’s Judgment:

The Supreme Court decisively rejected the submissions advanced by the Enforcement Directorate and upheld the appellant’s challenge. In a detailed judgment, the Bench undertook an extensive analysis of the scheme of the BNSS, the nature of complaint proceedings under the PMLA, and the constitutional dimensions of procedural fairness.

At the outset, the Court reaffirmed that proceedings initiated through prosecution complaints under Section 44(1)(b) of the PMLA are governed by the general procedural framework applicable to complaint cases unless there exists a specific inconsistency under the special statute. Referring to its earlier decisions in Tarsem Lal, Yash Tuteja, and Kaushal Kumar Agarwal, the Court observed that the filing of a prosecution complaint by the ED necessarily attracts the procedural provisions dealing with complaint cases under criminal law.

The Bench found no inconsistency between the PMLA and Sections 223 to 228 BNSS. Consequently, the Court held that the Special Court was bound to comply with the first proviso to Section 223(1) before taking cognizance.

The Court then turned to the nature and effect of the proviso itself. Significantly, the Bench held that the requirement of granting an opportunity of hearing before cognizance is not merely procedural but substantive in character. The Court observed that the safeguard directly impacts the rights of the accused and is intrinsically connected to the constitutional guarantee of fair trial under Article 21.

The Bench categorically held that the legislature intentionally conferred a valuable right upon the accused by introducing the proviso. Unlike ordinary procedural rules regulating the manner of conducting proceedings, the proviso creates a substantive entitlement in favour of the person sought to be prosecuted. Therefore, strict compliance with the requirement became mandatory.

The Court attached considerable importance to the legislature’s use of the word “shall” in the proviso. According to the Bench, the language employed by Parliament leaves no room for discretion. The Court held that the expression must necessarily be interpreted as mandatory because the provision is designed to protect individual liberty and ensure fairness in criminal proceedings.

The judgment emphatically declared that any cognizance taken without complying with the hearing requirement would be “void ab initio.” By using this expression, the Court made it clear that non-compliance strikes at the very root of jurisdiction and invalidates the proceedings from inception.

In dealing with the ED’s argument regarding prejudice, the Court drew a distinction between procedural irregularities and substantive illegalities. The Bench held that where a mandatory statutory safeguard conferring substantive rights is violated, the proceedings automatically stand vitiated. In such circumstances, an accused is not required to separately establish actual prejudice.

The Court observed that requiring proof of prejudice would dilute the very object of the safeguard and encourage non-compliance with mandatory statutory requirements. The Bench clarified that violation of Section 223(1) BNSS constitutes an illegality affecting the legality of the cognizance order itself and not merely an irregularity curable under procedural principles.

Another important aspect of the judgment concerns the interpretation of the BNSS savings clause under Section 531(2)(a). The Court rejected the ED’s contention that the old CrPC would continue to apply merely because the prosecution complaint had been filed before July 1, 2024.

The Bench clarified that the purpose of the savings clause is to prevent disruption of proceedings already underway under the previous procedural regime. However, where proceedings such as inquiry, trial, or appeal had not yet commenced, an accused cannot be denied the benefit of substantive safeguards introduced under the new law.

The Court emphasized that this was not a case involving retrospective application of the BNSS. Rather, it involved prospective application of a beneficial procedural safeguard to proceedings initiated after the commencement of the statute. Since cognizance had admittedly been taken after July 1, 2024, the accused became entitled to invoke Section 223(1) BNSS.

The Supreme Court also addressed the ED’s argument that numbering of the complaint and posting it before July 1, 2024 amounted to commencement of inquiry. Rejecting this submission, the Court held that an inquiry begins only when the court applies judicial mind to the allegations. Mere administrative processing or listing of the complaint does not constitute commencement of inquiry within the meaning of the savings clause.

Importantly, the Court recognized the broader constitutional implications of the issue. The judgment reiterates that criminal procedure is not merely a technical framework but a vital mechanism for safeguarding personal liberty. By elevating the right of pre-cognizance hearing to the level of a substantive constitutional protection, the Court reinforced the principle that fairness cannot be sacrificed even in prosecutions involving serious economic offences.

While acknowledging the gravity of allegations under the PMLA, the Bench observed that seriousness of accusations cannot justify bypassing mandatory safeguards enacted by Parliament. The Court noted that adherence to procedural fairness strengthens the legitimacy of the criminal justice system and protects against arbitrary exercise of prosecutorial power.

Consequently, the Supreme Court allowed the appeal and set aside both the Uttarakhand High Court judgment and the Special Court’s cognizance order dated July 2, 2024. The matter was remanded to the Special Court with directions to proceed afresh from the stage of taking cognizance after granting the appellant an opportunity of hearing in terms of Section 223(1) BNSS. The Court further directed that the exercise be completed within a period of eight weeks.

The judgment is likely to have far-reaching implications for complaint-based prosecutions under various special statutes, particularly those initiated by investigative agencies such as the Enforcement Directorate, Serious Fraud Investigation Office, and regulatory authorities. It firmly establishes that the procedural safeguards introduced under the BNSS are not ornamental reforms but enforceable rights intended to strengthen due process protections in criminal law.