Kushal Kumar Agarwal Vs Directorate of Enforcement (Supreme Court of India)
Material Facts
A complaint under Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 (PMLA) was filed on August 2, 2024, naming the appellant as an accused. The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) had come into force on July 1, 2024.
Procedural History & Legal Issues
The Special Court passed an order dated November 20, 2024 (referred to in parts of the order as November 20, 2024 / April 20, 2024), taking cognizance of the offence without giving the appellant an opportunity of being heard. The appellant challenged the cognizance order before the Supreme Court. The central legal issue was whether the first proviso to Section 223(1) of the BNSS—requiring an opportunity of being heard to be given to the accused before taking cognizance—applies to PMLA complaints filed after July 1, 2024.
Statutory Provisions & Submissions
- Statutory Provisions: Section 44(1)(b) of PMLA; Section 223 of BNSS (corresponding to Section 200 of the Code of Criminal Procedure, 1973 [CrPC]). The first proviso to Section 223(1) of BNSS mandates that “no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.”
- Respondent’s Submissions: The Additional Solicitor General argued that:
Hearing under the Section 223(1) BNSS proviso is confined to whether a case is made out based solely on the complaint and accompanying documents.
Cognizance is taken of the offence, not the offender; thus, once cognizance is taken following Section 223(1) BNSS, no second hearing is required when supplementary or further complaints are filed.
Court’s Observations, Findings & Final Decision
