Pre-Cognizance Hearing Under Section 223 BNSS: Supreme Court Says It Is Mandatory in PMLA Cases

The Supreme Court has delivered an important ruling on the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, holding that the right of a proposed accused to be heard before a Magistrate takes cognizance of a complaint is mandatory and not a mere formality. In Parvinder Singh v. Directorate of Enforcement (2026 INSC 519), the Court ruled that taking cognizance without first giving the accused this opportunity renders the order void ab initio, meaning void from the very beginning.

This judgment matters because the BNSS replaced the Code of Criminal Procedure, 1973 with effect from 1 July 2024, and courts are still settling how its new safeguards operate in practice. The ruling has a direct bearing on prosecutions under the Prevention of Money Laundering Act, 2002, which are often initiated through complaints by the Enforcement Directorate. For readers facing criminal proceedings, it pairs well with our guide on what your rights are if you are arrested under the BNSS.

What Section 223 BNSS Provides

Section 223 of the BNSS deals with how a Magistrate examines a complaint before deciding whether to take cognizance of an offence. The Magistrate must examine the complainant and the witnesses on oath and record their statements. The first proviso to Section 223(1) then adds a new safeguard that did not exist in the same form under the old Code: no cognizance of an offence shall be taken without giving the proposed accused an opportunity of being heard.

In practice, this means the Magistrate issues a notice to the accused at the pre-cognizance stage. The notice is meant to be meaningful, not an empty formality, and the accused is entitled to see the complaint and the sworn statements so that they can respond before the court decides to proceed. This is a shift towards fairness at the threshold, before the machinery of a criminal trial is set in motion. The idea is that a person should not be dragged into a prosecution without first having a chance to point out, for example, that the complaint is baseless or that they are the wrong person.

The Supreme Court's Ruling in Parvinder Singh

A bench of Justices M. M. Sundresh and N. Kotiswar Singh held that the first proviso to Section 223(1) is substantive and mandatory in character, and that it flows from the right to a fair trial under Article 21 of the Constitution. The Court reasoned that the opportunity of hearing is a real safeguard for liberty, and that ignoring it is not a minor procedural lapse that can be cured later.

The consequence is significant. Where a hearing was statutorily required but not given, the order taking cognizance is void ab initio. The proceedings built on that defective foundation cannot stand, and the matter has to go back for fresh consideration after the accused is heard.

Why It Matters for PMLA Cases

Prosecutions under the Prevention of Money Laundering Act are commonly launched by way of a complaint under Section 44 of that Act. The Court held that such complaints are governed by the BNSS provisions on complaints, and that the pre-cognizance hearing safeguard therefore applies to them as well. Importantly, the Court indicated that this protection extends even to PMLA complaints that were filed before the BNSS came into force, because the safeguard attaches to the act of taking cognizance.

This gives accused persons in money laundering matters a concrete procedural protection at an early stage. It also places a discipline on prosecuting agencies and Magistrates to follow the hearing requirement carefully, since a failure to do so can unravel the cognizance order entirely.

Practical Implications for Accused Persons

If you are named in a complaint case, the pre-cognizance notice is an opportunity to place your version on record before the court forms a view. It is not a stage to be ignored. Legal representation at this point can help frame the response and highlight gaps in the complaint. Once cognizance is taken, the path usually shifts towards summons, appearance and, where needed, applications for bail.

Understanding the wider criminal process helps. Our explainers on how to apply for regular bail under the BNSS and how to get anticipatory bail under the BNSS set out the protections available at different stages, while our guide on filing an FIR online under the BNSS covers how criminal cases begin.

Key Takeaways

The proviso to Section 223(1) BNSS gives a proposed accused the right to be heard before a Magistrate takes cognizance of a complaint. The Supreme Court in Parvinder Singh v. Directorate of Enforcement has held this right to be mandatory and substantive, rooted in Article 21, so that cognizance taken without it is void ab initio.

The ruling applies to PMLA complaints under Section 44, including those filed before the BNSS commenced. For anyone facing a complaint case, the pre-cognizance notice is a vital opportunity that should be taken seriously rather than treated as a routine formality.