The Calcutta High Court recently ruled that a court cannot acknowledge a case under the Prevention of Money Laundering Act (PMLA) without first providing the accused with a hearing, as mandated by the Bharatiya Nagarik Suraksha Sanhita (BNSS). Justice Sabyasachi Bhattacharyya stated that an order taking cognisance of a complaint filed by the Enforcement Directorate (ED) without affording the accused a hearing was "patently vitiated" and a "nullity in the eye of law". Consequently, all related proceedings were also nullified.

The ruling came as the court quashed PMLA proceedings against Tutu Ghosh, Bipin Kumar Kedia, and Anil Kumar Jain, who were accused of offenses under sections 3 and 4 (money laundering), read with section 70 of PMLA (offences by companies and their officials). They approached the High Court, arguing that the PMLA judge took cognisance of the offenses in violation of the first proviso to BNSS section 223, as no opportunity of hearing was given to any of them before such cognisance was taken. The court emphasized that this safeguard could not be bypassed, even under the PMLA.

The High Court made it clear that this provision is not a mere procedural formality but a substantive right tied to Article 21 of the Constitution. The court observed, "The personal liberty of a person cannot be curtailed or deprived except according to the procedure established by law, which in the present case includes giving the accused an opportunity of being heard".

This decision highlights a crucial procedural safeguard introduced by the BNSS, which came into force on July 1, 2024. Section 223(1) of the BNSS includes a proviso that prevents a magistrate from taking cognizance of an offense without first giving the accused an opportunity to be heard. The court noted that the BNSS, which replaced the old criminal procedure law, clearly mandates that the accused must be heard before the court takes cognizance of the offense.

The ED argued that the PMLA is a special law and its procedures override BNSS provisions. However, the court rejected this argument, stating, "There is no provision in the PMLA which overrides the said provisions of the Cr.P.C., and hence, the Special Court has to apply its mind... The provisions of the BNSS shall be applicable to such procedure". The court clarified that complaints under the PMLA are not equivalent to police chargesheets and must be treated as “complaints” under the BNSS. It concluded that the failure to provide a pre-cognisance hearing was fatal and amounted to a violation of statutory and constitutional safeguards.

In a similar vein, the Supreme Court has also ruled that an accused under the PMLA must be given a hearing before cognizance is taken if the case falls under the BNSS, reinforcing the accused's right to a fair trial. A bench of Justice Abhay S Oka and Justice Ujjal Bhuyan set aside a cognizance order passed by a Special Court on November 20, 2024, as it violated this requirement.

This consistent view emphasizes that complaints filed by the Enforcement Directorate under Section 44(1)(b) of the PMLA will be governed by Sections 200 to 204 of the CrPC, and by extension, now fall under the ambit of Chapter 16 (Sections 223 to 226) of the BNSS. Therefore, after taking cognizance and after following the procedure prescribed by proviso to sub-section (1) of Section 223 of the BNSS if cognizance is taken, there will be no occasion to again take cognizance of the same offense when supplementary or further complaints are filed.