Overview
- The Supreme Court, which issued its judgment on Wednesday, set aside a Special PMLA Court's July 2, 2024 cognizance order and the Uttarakhand High Court's later approval for failing to hear the accused before taking cognizance.
- The bench said the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita creates a substantive right under Article 21 and that a court must give the accused a hearing before taking cognizance, with no requirement that the accused prove prejudice.
- The court rejected the Enforcement Directorate's argument that an earlier filing or mere ministerial numbering of a complaint before BNSS began kept the old CrPC protections in force, finding that such acts do not amount to an 'inquiry' under the BNSS savings clause.
- The Supreme Court ordered the Special Court to proceed again from the stage of taking cognizance and to complete the pre‑cognizance hearing within eight weeks, effectively rendering cognizance taken without such a hearing void ab initio.
- Practical effects include lower courts and agencies like the ED and NCB having to review complaints taken after July 1, 2024 for compliance with Section 223(1); courts have already applied the same rule in an NDPS matter at the Allahabad High Court.