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In Parvinder Singh vs. Directorate of Enforcement, 2026 INSC 519, the Supreme Court delivered an important ruling clarifying the scope and effect of the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), holding that an accused must be afforded an opportunity of hearing before cognizance is taken on a complaint and that non-compliance with such requirement renders the proceedings void ab initio even in money laundering matters.
The case arose out of proceedings under the Prevention of Money Laundering Act, 2002 (“PMLA”), where a complaint had been filed by the Enforcement Directorate before the Special Court prior to the commencement of the BNSS. However, cognizance of the complaint was taken after the BNSS came into force and without granting an opportunity of hearing to the accused.
The principal question before the Court was whether the first proviso to Section 223(1) of the BNSS, which mandates that no cognizance of an offence shall be taken on a complaint without giving the accused an opportunity of being heard, would apply to such proceedings and whether failure to comply with the requirement would invalidate the order taking cognizance.
At the outset, the Court examined the interplay between the procedural framework under the BNSS and proceedings under the PMLA. Reaffirming earlier decisions including Tarsem Lal v. Enforcement Directorate ((2024) 7 SCC 61), Yash Tuteja v. Union of India ((2024) 8 SCC 465), and Kaushal Kumar Agarwal v. Directorate of Enforcement (2025 SCC OnLine SC 1221), the Court held that once a complaint under Section 44(1)(b) of the PMLA is filed, the procedural provisions governing complaint cases under the CrPC/BNSS continue to apply unless specifically excluded by the special enactment.
Accordingly, the Court held that Sections 223 to 228 of the BNSS apply to proceedings under the PMLA and there being no inconsistency between the two enactments, the safeguard introduced under Section 223(1) must be given full effect.
Mandatory Nature of Opportunity of Hearing Under Section 223(1) BNSS
The Court closely examined the language of the first proviso to Section 223(1) of the BNSS, which provides that no cognizance of an offence shall be taken by the Court without giving the accused an opportunity of being heard.
Rejecting the contention that the provision is merely procedural, the Court held that the proviso confers a substantive right upon the accused and is an extension of the constitutional guarantee of fair trial under Article 21.
In a significant observation, the Court held:
“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 cognizance which forms a part of the right of an accused to a fair trial enshrined under Article 21 of the Constitution of India.”
The Court further observed that the use of the word “shall” leaves no discretion with the Court and makes compliance mandatory.
Emphasising the consequence of non-compliance, the Court categorically held:
“Cognizance of an offence taken by a Court without due compliance of the aforestated proviso would be void ab initio.”
The Court therefore held that denial of hearing at the stage of cognizance is not a curable procedural irregularity but an illegality that goes to the root of jurisdiction.
Applicability of BNSS to Complaints Filed Prior to Its Commencement
A significant aspect of the judgment is the Court’s clarification regarding the applicability of BNSS to complaints instituted before 01 July 2024 but in which cognizance was taken subsequently.
The prosecution argued that by virtue of the savings clause under Section 531(2)(a) of the BNSS, once the complaint had been filed prior to the commencement of the BNSS, the proceedings would continue under the CrPC and the newly introduced safeguard under Section 223(1) would not apply.
Rejecting this contention, the Court held that Section 531 is intended to preserve continuity of proceedings already underway and prevent piecemeal application of procedural laws. However, such protection applies only where an appeal, inquiry, investigation, application, or trial had actually commenced prior to the enforcement of the BNSS.
The Court clarified that substantive procedural safeguards introduced under the BNSS would continue to apply where judicial proceedings had not reached the stage of inquiry before commencement of the new law.
Scope of “Inquiry” Under Section 531 BNSS
The Court undertook a detailed analysis of the meaning of the expression “inquiry” and drew a distinction between filing of a complaint and commencement of judicial inquiry.
Interpreting Section 2(1)(k) of the BNSS and relying upon Hardeep Singh v. State of Punjab ((2014) 3 SCC 92), the Court held that a mere ministerial act such as numbering a complaint, registering it, or posting it before the Court cannot amount to commencement of inquiry.
The Court observed:
“A mere ministerial act cannot be termed as an ‘inquiry’… Taking cognizance is nothing but an application of judicial mind.”
The Court held that inquiry begins only when the Court applies its judicial mind to the allegations and undertakes examination in accordance with law. Administrative or preparatory acts intended to place the matter before the Court cannot amount to commencement of inquiry.
Applying this principle, the Court noted that although the complaint had been filed before commencement of the BNSS, but cognizance was admittedly taken after the BNSS came into force, the mandatory requirement under Section 223(1) became applicable.
The Court therefore rejected the argument that filing of the complaint itself insulated the proceedings from operation of the BNSS.
The Court further held that where a statute confers a substantive right affecting personal liberty, denial of such right itself constitutes prejudice and no additional burden can be cast upon the accused to demonstrate actual injustice.
Conclusion
Accordingly, the Supreme Court set aside the order taking cognizance as well as the judgment under challenge and directed the Special Court to reconsider the complaint afresh after granting an opportunity of hearing to the accused.
The judgment marks an important development under the BNSS by recognising that the right of hearing before cognizance in complaint cases even in PMLA matters is a substantive safeguard and not a procedural formality. It further clarifies that for determining applicability of the BNSS, the relevant consideration is not merely the filing of the complaint but whether judicial inquiry had commenced before the new law came into force. Where cognizance is taken post-BNSS, the statutory right under Section 223(1) cannot be bypassed merely because the complaint was instituted earlier.
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