Cognizance Without Hearing the Accused Is Void Ab Initio: Supreme Court's Landmark Ruling on Section 223 BNSS | Parvinder Singh v. ED

EduLaw EditorialLandmark Judgements2026-10-04

In a precedent-setting ruling, the Supreme Court declared that taking cognizance on a complaint without affording the accused an opportunity of hearing under the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, is not a curable irregularity but an illegality that renders the entire cognizance order void from its inception. Title: Cognizance Without Hearing the Accused Is Void Ab Initio — Supreme Court Reinforces Mandatory Pre-Cognizance Hearing Under Section 223 BNSS as a Fair-Trial Safeguard Case Name: Parvinder Singh v. Directorate of Enforcement Case Number: Criminal Appeal No. __ of 2026 (Arising out of SLP (Crl.) No. 12055 of 2025) Court: Supreme Court of India Judges: Justice M.M. Sundresh and Justice Nongmeikapam Kotiswar Singh Judgment Date: 19 May 2026 Citation: 2026 INSC 519 | 2026 LiveLaw (SC) 522 | 2026 SCC OnLine SC 903 ABSTRACT The Supreme Court of India, in Parvinder Singh v. Directorate of Enforcement (2026 INSC 519), delivered a far-reaching pronouncement on the scope and mandatory nature of the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) . The case arose from a PMLA prosecution complaint filed by the Enforcement Directorate before the BNSS came into force on 1 July 2024, but on which cognizance was taken by a Special Court on 2 July 2024 — one day after the new procedural code began operating — without affording the accused any opportunity of being heard. The Supreme Court held that the proviso is not merely a procedural formality but a substantive safeguard rooted in the right to a fair trial under Article 21 of the Constitution. The Court ruled that the word "shall" in the proviso imposes a mandatory obligation, and any cognizance order passed without compliance is void ab initio. The judgment also clarified that the savings clause under Section 531(2)(a) BNSS does not rescue proceedings where no judicial "inquiry" — as opposed to a purely ministerial or administrative act — was pending before the commencement of the BNSS. By setting aside both the Uttarakhand High Court's judgment and the Special Court's cognizance order, the Supreme Court directed the trial court to proceed afresh after granting the accused a hearing, reaffirming the constitutional primacy of the right to be heard at the earliest threshold of criminal prosecution. TABLE OF CONTENTS Introduction — The Procedural Watershed Under the BNSS Factual Matrix and Procedural History Core Legal Questions Before the Supreme Court Statutory Framework — Interplay Between BNSS and PMLA The Supreme Court's Reasoning — Pre-Cognizance Hearing as a Substantive Right Rejection of the Savings Clause Defence Under Section 531(2)(a) BNSS Precedents Relied Upon and Their Doctrinal Significance Implications for Criminal Practice, Special Statutes, and the Rights of the Accused INTRODUCTION — THE PROCEDURAL WATERSHED UNDER THE BNSS The replacement of the Code of Criminal Procedure, 1973 (CrPC) by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), effective 1 July 2024, introduced several citizen-centric procedural innovations into India's criminal justice architecture. Among the most consequential is the first proviso to Section 223(1) BNSS , which mandates that "no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard." This provision has no equivalent in the erstwhile CrPC. Under the old regime, an accused had no statutory right of audience before a criminal court until cognizance was taken and summons or process was issued. The insertion of this pre-cognizance hearing requirement was an express legislative choice to fortify procedural fairness at the earliest stage of complaint-based prosecutions. The judgment in Parvinder Singh v. Directorate of Enforcement (2026 INSC 519) represents the Supreme Court's most authoritative and detailed interpretation of this new safeguard. Delivered by a bench of Justices M.M. Sundresh and N. Kotiswar Singh, the ruling addresses not only the nature of the right conferred by the proviso but also the transitional complexities arising from complaints filed under the CrPC that traversed the statutory boundary of 1 July 2024. In doing so, it settles a critical question at the intersection of procedural reform, transitional law, and constitutional rights — one with direct and immediate consequences for every complaint-based prosecution in the country, including those under special statutes such as the Prevention of Money Laundering Act, 2002 (PMLA). FACTUAL MATRIX AND PROCEDURAL HISTORY The Enforcement Directorate registered an Enforcement Case Information Report (ECIR) bearing reference ECIR/DNSZO/04/2023 against Parvinder Singh on 24 July 2023. The appellant was subsequently arrested on 27 April 2024. Within the mandatory two-month window following arrest, the ED filed its prosecution complaint on 24 June 2024, invoking Sections 44 and 45 of the PMLA for offences under Section 3 read with Section 4 of the PMLA, before the designated Special Court. On the very same day of filing, the Special Court directed the complaint to be registered as a miscellaneous case and posted it for hearing on cognizance on 28 June 2024. When the matter came up on that date, the Presiding Officer was on recess, and the case was adjourned to 2 July 2024 — a date that, by then, fell after the commencement of the BNSS on 1 July 2024. On 2 July 2024, the Special Court took cognizance of the offence under Section 3 read with Section 4 of the PMLA without providing the accused any opportunity to be heard. The miscellaneous case was re-registered as Special Sessions Trial No. 28 of 2024. The appellant filed an application on 24 December 2024 seeking recall of the cognizance order, arguing that the mandate of the first proviso to Section 223(1) BNSS had been violated. The Special Court dismissed this application on 22 March 2025, characterising it as a "dilatory tactic," and simultaneously proceeded to frame charges under Section 3 read with Section 4 of the PMLA. Aggrieved, the appellant preferred two criminal revisions before the High Court of Uttarakhand — one challenging the dismissal of the recall application and another challenging the cognizance order itself. The High Court, in its judgment dated 19 May 2025, held that Section 223 BNSS had no application because the PMLA proceedings were initiated before the BNSS commenced, invoking the savings clause under Section 531(2)(a) BNSS . The High Court dismissed the challenge to cognizance and only partially allowed relief on the framing of charges. It was this High Court judgment that was carried in appeal to the Supreme Court, giving rise to the landmark decision under analysis. CORE LEGAL QUESTIONS BEFORE THE SUPREME COURT The appeal presented three interlocking legal questions. First, whether the procedural framework governing complaint cases under the CrPC — specifically Sections 200 to 205 of the CrPC, now corresponding to Sections 223 to 228 of the BNSS — applies to prosecution complaints filed under Section 44(1)(b) of the PMLA before Special Courts. Second, whether the first proviso to Section 223(1) BNSS , mandating a pre-cognizance hearing to the accused, is mandatory and substantive, or merely directory and procedural. Third, whether the savings clause under Section 531(2)(a) BNSS protected the cognizance order from challenge on the ground that the complaint had been filed and certain ministerial steps had been taken before the BNSS came into force. Each of these questions carried significant implications not only for PMLA proceedings but for the entire landscape of complaint-based criminal prosecution under Indian law. STATUTORY FRAMEWORK — INTERPLAY BETWEEN BNSS AND PMLA Understanding the Supreme Court's reasoning requires careful attention to the statutory architecture that governs the relationship between the BNSS and the PMLA. The Court systematically analysed several provisions in both statutes. Under the PMLA, Section 43 designates Courts of Session as Special Courts for the trial of offences punishable under Section 4 . Section 44(1)(b) empowers an authorised authority to file a complaint before the Special Court, which may then take cognizance of the offence under Section 3 without the accused being committed to it for trial. Crucially, Section 44(1)(d) stipulates that a Special Court trying a PMLA offence "shall hold trial in accordance with the provisions of the Code of Criminal Procedure, 1973, as it applies to a trial before a Court of Session." Section 46 of the PMLA further provides that, save as otherwise provided in the Act, the provisions of the CrPC (now replaced by the BNSS) "shall apply to the proceedings before a Special Court," which "shall be deemed to be a Court of Session." Section 65 makes the CrPC (now BNSS) applicable to all proceedings under the PMLA "insofar as they are not inconsistent with the provisions of this Act." Section 71 confers an overriding effect on the PMLA in cases of inconsistency with any other law. On the BNSS side, Section 4(2) makes the BNSS applicable to offences under special laws, subject to those laws' own procedural requirements. Section 5 preserves special or local laws from the BNSS but only "in the absence of a specific provision to the contrary." Section 210(1)(a) empowers Magistrates to take cognizance upon complaints, including those filed by persons authorised under any special law. Section 223(1) , the provision at the heart of this case, requires examination of the complainant and witnesses on oath when cognizance is taken on a complaint, with its first proviso introducing the mandatory pre-cognizance hearing requirement. Section 531(2)(a) , the savings clause, provides that any appeal, application, trial, inquiry, or investigation pending immediately before the commencement of the BNSS shall continue under the CrPC. The Supreme Court found no inconsistency between the PMLA and the complaint procedure under the BNSS. It observed that the PMLA does not prescribe any self-contained procedure for taking cognizance on complaints; rather, it expressly imports the general criminal procedure through Sections 46 and 65 . The Court warned that accepting the ED's "stand-alone enactment" argument would strip the Special Court of essential complaint-stage powers — including the power to dismiss complaints for lack of evidence under Section 225 BNSS (corresponding to Section 203 CrPC ), to postpone issuance of process under Section 226 BNSS , or to dispense with the personal attendance of the accused under Section 228 BNSS — producing "disastrous consequences." THE SUPREME COURT'S REASONING — PRE-COGNIZANCE HEARING AS A SUBSTANTIVE RIGHT The doctrinal core of the judgment lies in the Court's characterisation of the first proviso to Section 223(1) BNSS . Though located within Chapter XVI of the BNSS — which, as a whole, lays down procedural law dealing with complaints before a Magistrate — the Court held that this specific proviso is substantive in nature. The Court reasoned that the proviso does not merely regulate the procedural manner in which complaint proceedings are conducted; rather, it confers upon the accused a distinct right to be heard before the judicial act of cognizance is performed. This right, the Court held, forms an integral part of the constitutional guarantee of a fair trial enshrined under Article 21 of the Constitution of India, 1950. In its own words, the bench observed: "We hold that 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, 1950. We further hold that the word 'shall' occurring in the said proviso has to be construed to be mandatory in nature, which enures to the benefit of an accused. Resultantly, cognizance of an offence taken by a Court without due compliance of the aforestated proviso would be void ab initio." The Court emphatically rejected the ED's contention that the accused must demonstrate prejudice resulting from the non-compliance. Treating the violation as an illegality rather than a curable irregularity, the bench held that non-compliance is not a defect that attracts Section 506 or Section 511 of the BNSS (which deal with irregularities in proceedings). Instead, it vitiates the proceedings at their root. The implication is significant: an accused challenging cognizance taken without a hearing need not satisfy any additional burden of showing that the outcome would have been different had the hearing been granted. The very absence of the hearing is sufficient to annul the cognizance order. REJECTION OF THE SAVINGS CLAUSE DEFENCE UNDER SECTION 531(2)(a) BNSS A substantial portion of the Supreme Court's analysis addressed the transitional question of whether the savings clause under Section 531(2)(a) BNSS could preserve the application of the old CrPC to the instant proceedings. The ED argued that because the prosecution complaint had been filed and certain court steps had taken place before 1 July 2024, an "inquiry" was already pending, and the CrPC — which contained no pre-cognizance hearing requirement — should continue to govern. The Court rejected this argument by drawing a precise distinction between ministerial acts and judicial acts. It observed that Section 2(1)(k) BNSS defines "inquiry" as every inquiry, other than a trial, conducted under the Sanhita by a Magistrate or Court. However, the Court emphasised that an inquiry is a judicial act requiring a positive, conscious application of judicial mind — not a merely administrative or ministerial step. The direction issued by the Special Court on 24 June 2024 to register and number the complaint, and to post it for hearing on cognizance on a future date, was held to be a purely ministerial act. No judicial mind had been applied to the contents of the complaint at that stage. The Court stated that "a mere ministerial act cannot be termed as an inquiry" and that "taking cognizance is nothing but an application of judicial mind. So long as the application of the judicial mind is not exercised, an inquiry cannot commence." To buttress this reasoning, the Court invoked the logic of Hardeep Singh v. State of Punjab ((2014) 3 SCC 92) — a precedent that the ED had itself relied upon. The Court demonstrated that Hardeep Singh actually supported the appellant's position: that decision, drawing on State of U.P. v. Lakshmi Brahman ((1983) 2 SCC 372) and Raj Kishore Prasad v. State of Bihar ((1996) 4 SCC 495), had held that even compliance-stage activities under Sections 207 to 209 CrPC could not be termed an "inquiry" because they involved no judicial application of mind. Applying this reasoning, the Court concluded that since no judicial inquiry was pending before 1 July 2024, the BNSS governed the cognizance step taken on 2 July 2024. The Court further clarified that the application of the BNSS in this case was not retrospective or retroactive but entirely prospective — the accused was entitled to the benefit of a better right conferred by the new law at the point when the judicial act of cognizance was performed. PRECEDENTS RELIED UPON AND THEIR DOCTRINAL SIGNIFICANCE The Supreme Court's reasoning rested on a consistent chain of its own prior decisions that have progressively established the applicability of general complaint procedures to PMLA prosecutions. Tarsem Lal v. Enforcement Directorate ((2024) 7 SCC 61) was the foundational precedent. In that case, the Court had conclusively held that once a complaint is filed under Section 44(1)(b) PMLA , it is governed by Sections 200 to 205 CrPC as none of those provisions are inconsistent with any provision of the PMLA. The Tarsem Lal ruling summarised several conclusions, including that upon cognizance of a PMLA complaint, the court should ordinarily issue summons (not a warrant), that an accused appearing pursuant to summons on a complaint should not be treated as being in custody, and that the court may grant exemption from personal appearance under Section 205 CrPC . Yash Tuteja & Anr. v. Union of India ((2024) 8 SCC 465) reinforced this framework by holding that the Special Court must apply its mind to whether a prima facie case of offence under Section 3 PMLA is disclosed in the complaint filed under Section 44(1)(b) , and must dismiss the complaint under Section 203 CrPC if no such case is made out. Yash Tuteja firmly rejected any notion that the PMLA complaint occupies a procedural vacuum insulated from general criminal law. Kushal Kumar Agarwal v. Directorate of Enforcement (2025 SCC OnLine SC 1221) was the most directly on-point precedent. That decision had squarely held that the proviso to Section 223(1) BNSS "puts an embargo on the power of the Court to take cognizance by providing that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard." In Kushal Kumar Agarwal , cognizance was set aside solely on the ground that the accused had not been heard. The ED had urged the Supreme Court to reconsider Kushal Kumar Agarwal and refer the matter to a larger bench. The Court firmly declined, stating that it was "in absolute agreement" with the decisions in Tarsem Lal , Yash Tuteja , and Kushal Kumar Agarwal . The Court warned that accepting the ED's position would strip the Special Court of basic judicial powers embedded in the complaint procedure — a consequence the Court described as untenable and "disastrous." Additionally, the Court engaged with Raghubans Dubey v. State of Bihar (AIR 1967 SC 1167), which had established the classic principle that "once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders" — underscoring that cognizance is a definitive judicial act of taking notice of an offence, not a routine administrative step. IMPLICATIONS FOR CRIMINAL PRACTICE, SPECIAL STATUTES, AND THE RIGHTS OF THE ACCUSED The operative directions of the Supreme Court were clear: the High Court's judgment dated 19 May 2025 and the Special Court's cognizance order dated 2 July 2024 were set aside. The Special Court was directed to afford the appellant an opportunity of hearing and proceed afresh from the stage of taking cognizance, with the exercise to be completed within eight weeks. The implications of this ruling extend well beyond the individual facts of the case. At the broadest level, the judgment establishes that the pre-cognizance hearing under the first proviso to Section 223(1) BNSS is not a mere procedural formality that can be overlooked without consequence. It is a mandatory, substantive safeguard tethered to Article 21 of the Constitution. Every Magistrate and every Special Court operating under complaint-based prosecution mechanisms — whether under the PMLA, the Companies Act, 2013, the Income-tax Act, 1961, or any other special statute — must now institutionalise a hearing to the accused before taking cognizance. Failure to do so renders the cognizance order a nullity, capable of being challenged and set aside regardless of how far the subsequent proceedings may have advanced. For the Enforcement Directorate and other investigative agencies that initiate proceedings by way of complaint rather than police report, the ruling introduces a definitive procedural checkpoint that did not exist under the CrPC. While the judgment does not diminish the seriousness of the offences alleged or the evidential material before the court — the bench specifically noted that the allegations against the appellant were "quite serious" — it holds that no degree of seriousness can justify bypassing the statutory mandate of a hearing. This reflects a constitutional calibration: the gravity of the accusation makes procedural safeguards more important, not less. The judgment also clarifies the transitional boundary between the CrPC and the BNSS with a functional test. The mere filing or registration of a complaint, or the listing of a matter for hearing, does not amount to the commencement of an "inquiry" that would trigger the savings clause under Section 531(2)(a) BNSS . Only a judicial act — one reflecting a positive, conscious application of judicial mind — can constitute an inquiry within the meaning of the law. This narrows the ability of prosecuting agencies to argue that pre-1 July 2024 administrative steps automatically preserve the CrPC regime and deny the accused the benefit of rights newly conferred by the BNSS. For criminal practitioners, the decision provides both a shield and a procedural roadmap. Accused persons who have had cognizance taken against them on complaints without being heard — whether in PMLA cases or under any other statute — now have clear authority to seek recall or setting aside of such orders. The judgment removes the need to demonstrate prejudice; the violation is treated as a jurisdictional defect. At the same time, trial courts and defence counsel should expect that the scope of the pre-cognizance hearing will become the next contested frontier. As the Calcutta High Court explored in Kaberi Dey v. Sourav Bhattacharjee (2025 SCC OnLine Cal 5928), questions about what the accused may argue at this stage — whether they may challenge only jurisdictional or technical defects, or whether they may address the sufficiency of allegations against them personally — remain open and will likely require further judicial elucidation. The Supreme Court's decision in Parvinder Singh is, in substance, a declaration that the BNSS has not merely re-codified the CrPC but has expanded the floor of procedural rights available to accused persons at the very threshold of criminal prosecution. By anchoring this expansion in the constitutional text of Article 21 , the Court has ensured that the pre-cognizance hearing right cannot be diluted by executive convenience, prosecutorial urgency, or the perceived gravity of the underlying offence. It is a right that exists because the Constitution demands it, and its violation carries the most severe procedural consequence the law recognises: nullification from inception. Frequently Asked Questions (FAQ) What is Section 223(1) BNSS? Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the examination of a complainant when a Magistrate takes cognizance of an offence on a complaint. Its first proviso mandates that no cognizance shall be taken without giving the accused an opportunity of being heard. What happens if cognizance is taken without hearing the accused? As per the Supreme Court's ruling in Parvinder Singh v. Directorate of Enforcement (2026 INSC 519), cognizance taken without hearing the accused is void ab initio — meaning it is treated as legally non-existent from the moment it was passed. Does Section 223 BNSS apply to PMLA cases? Yes. The Supreme Court has consistently held, through Tarsem Lal v. ED ((2024) 7 SCC 61), Yash Tuteja v. Union of India ((2024) 8 SCC 465), Kushal Kumar Agarwal v. ED (2025 SCC OnLine SC 1221), and now Parvinder Singh v. ED (2026 INSC 519), that the complaint procedure under Sections 223 to 228 BNSS applies to PMLA prosecution complaints as there is no inconsistency between these provisions and the PMLA. Does the accused need to show prejudice if the hearing was not given? No. The Supreme Court held that non-compliance with the first proviso to Section 223(1) BNSS is an illegality, not a mere irregularity. No demonstration of prejudice is required. Key Sections Referenced: Section 223(1) BNSS (First Proviso) | Section 531(2)(a) BNSS | Section 2(1)(k) BNSS | Section 210 BNSS | Section 44(1)(b) PMLA | Section 46 PMLA | Section 65 PMLA | Section 71 PMLA | Article 21, Constitution of India Key Case Laws Cited: Parvinder Singh v. Directorate of Enforcement (2026 INSC 519) | Kushal Kumar Agarwal v. Directorate of Enforcement (2025 SCC OnLine SC 1221) | Yash Tuteja & Anr. v. Union of India ((2024) 8 SCC 465) | Tarsem Lal v. Enforcement Directorate ((2024) 7 SCC 61) | Hardeep Singh v. State of Punjab ((2014) 3 SCC 92) | Raghubans Dubey v. State of Bihar (AIR 1967 SC 1167) | Kaberi Dey v. Sourav Bhattacharjee (2025 SCC OnLine Cal 5928)