HEARING BEFORE COGNIZANCE UNDER BNSS – A RIGHT, NOT A RITUAL
Adv Sherry Samuel Oommen: This article is authored by Adv Sherry Samuel Oommen. He special
ises in the Constitution, tax and corporate laws and has also cleared the final exams of the In
stitute of Chartered Accountants of India, the Institute of Cost Accountants of India and the
Institute of Company Secretaries of India. He has also completed his Masters’s Degree in Com
merce, apart from obtaining a Post Graduate Diploma in Business and Corporate Laws from Sym
biosis, Pune. The views expressly are personal and should not be construed as a legal opinion.
sherryoommen@nashcp.com
- Introduction
The recent decision of the Hon’ble Supreme Court in Parvinder Singh v. Directorate of Enforcement 2026 KHC Online 6383 brings into sharp focus the transformative impact of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) on the criminal process, particularly at the pre-trial stage of taking cognizance on a complaint. The controversy arose in a prosecution under the Prevention of Money Laundering Act, 2002 (“PMLA”), where the complaint was filed prior to the BNSS coming into force, but cognizance was taken thereafter, without hearing the accused. The Court was called upon to decide whether the first proviso to Section 223(1) of the BNSS mandating an opportunity of hearing to the accused before cognizance applied, and whether the saving clause in Section 531(2)(a) of BNSS insulated the proceedings from the new procedural requirement.
The judgment is particularly notable for the way it uses a seemingly technical question of transitional application to articulate a broader vision of BNSS as a citizen-centric, rights-enhancing code, rather than a merely updated version of the CrPC. By treating the new hearing requirement as a substantive right and insisting that ministerial pre-BNSS steps cannot freeze accused persons out of this benefit, the Court invites a re-examination of how procedural reforms ought to operate in ongoing proceedings and how deeply fair trial values must penetrate pre-trial stages.
The judgment offers a detailed account of several BNSS provisions, namely, Sections 2(1)(k), 4, 5, 210, 213, 223 and 531, while simultaneously characterizing the first proviso to Section 223(1) as conferring a substantive right whose denial vitiates cognizance. The Court’s reasoning situates the BNSS as a citizen-centric procedural code, but one that also carefully calibrates its interface with special statutes through its saving and transitional clauses.
- BNSS as a successor procedural code
The Court describes the BNSS as an “improved version” of the Code of Criminal Procedure, 1973 (“CrPC”), conceptualized as a procedural code to guide stakeholders in the criminal justice system. While it retains several provisions of the CrPC, its design is expressly characterized as “citizen-centric”, with an endeavor to balance the facilitation of investigative agencies and courts with enhanced protections for individuals.
This framing is important for understanding the interpretive stance adopted by the Court. The BNSS is not viewed as a mere re-enactment but as a code that consciously strengthens procedural safeguards. By reading later provisions, particularly Section 223 through the lens of fair trial under Article 21 of the Constitution, the Court emphasizes that the BNSS must be applied in a manner that advances its protective objectives, unless expressly excluded.
In this sense, Parvinder Singh does more than map old CrPC provisions onto their BNSS counterparts. It uses the language of improvement and citizen-centrism as a normative compass for interpreting the new code, signaling that where two readings of a BNSS provision are possible, the one that better vindicates fair trial rights and participatory safeguards is to be preferred.
- Section 4 of BNSS – Applicability to offences under other laws
Section 4 of BNSS lays down the fundamental rule governing its field of operation. Sub-section (1) provides that all offences under the Bharatiya Nyaya Sanhita, 2023 (“BNS”) shall be investigated, inquired into, tried and otherwise dealt with according to the BNSS.
More crucially for special statutes, Section 4(2) provides that all offences under “any other law” shall likewise be processed in accordance with the BNSS, but “subject to any enactment for the time being in force regulating the manner or place” of dealing with such offences. The Supreme Court reads this provision as analogous to the PMLA’s own Section 65, which applies CrPC (now BNSS) provisions to PMLA proceedings insofar as they are not inconsistent with the PMLA.
Section 4(2) of BNSS therefore operates as a general gateway: BNSS procedures apply to special law offences unless there is a contrary procedural regime in the special statute. In the absence of any inconsistency between BNSS provisions governing complaints and the PMLA framework, the Court holds that the complaint procedure under Sections 223–228 of BNSS applies to PMLA complaints filed before Special Courts.
Read in conjunction with the Court’s emphasis on citizen-centricity, Section 4(2) becomes a vehicle through which BNSS safeguards, including the hearing right under Section 223(1), reach deep into the terrain of special statutes that have often been associated with stringent, prosecution-friendly frameworks.
- Section 5 of BNSS – Saving of special and local laws
Section 5 of BNSS provides that nothing in the BNSS shall affect any special or local law, or special jurisdiction or procedure, “in the absence of a specific provision to the contrary.” The Court underscores that this saving provision protects special statutes only where the BNSS does not expressly or by necessary implication override them.
Applied to the PMLA, this means that while PMLA retains primacy where there is inconsistency (reinforced separately by Section 71 of PMLA), BNSS provisions that supplement or reinforce fair trial rights without contradicting PMLA are not excluded. It is in this space that the first proviso to Section 223(1) of BNSS is located: as a superadded protection that does not conflict with, but rather operates within, the procedural framework envisaged by PMLA and recognized through Sections 4 and 5 of BNSS.
This reading of Section 5 carries real normative weight. Instead of allowing special statutes to become enclaves where new procedural rights are presumptively excluded, the Court suggests that the BNSS is to be read as permeating such regimes wherever it can do so without textual conflict. In doctrinal terms, the default is inclusion of BNSS safeguards, not their exclusion.
Recently, the Bombay High Court in the case of Neville Tuli Vs SEBI reported in (2026) 188 Taxmann.com 563 upheld the right of hearing having regard to the provisions of Section 223 of BNSS in respect of offences punishable under the SEBI Act, 1992.
- The concept of “inquiry” in BNSS – Section 2(1)(k) – a brief analysis
Section 2(1)(k) BNSS defines “inquiry” as “every inquiry, other than a trial, conducted under this Sanhita by a Magistrate or Court.” The Court treats this definition as both exhaustive and inclusive in scope, but stresses that an inquiry is a judicial act requiring application of judicial mind, reflected in the Court’s recording. It is characterised as a “positive and conscious act” by a judicial authority, as opposed to ministerial or administrative steps.
This conceptual clarity becomes critical for the operation of Section 531(2)(a) of BNSS. The Court holds that merely directing registration of a complaint as a miscellaneous case and posting it for hearing on cognizance is a ministerial act and does not amount to commencement of an “inquiry” within Section 2(1)(k). Until the Court applies its judicial mind to the allegations and materials placed before it, an inquiry does not begin.
Relying on Hardeep Singh v. State of Punjab (2014) 3 SCC 92, the Court further reinforces that even compliance with committal-related provisions in the CrPC (now BNSS counterparts) does not, by itself, amount to “inquiry” because there is no judicial application of mind at that stage. This doctrinal position permits the Court to keep Section 531(2)(a) from freezing the pre-cognizance stage under the old CrPC where only ministerial steps have occurred.
The interpretive move here is subtle but consequential: by insisting on a robust, judicially engaged conception of “inquiry”, the Court prevents purely administrative acts from denying accused persons the benefit of new procedural rights under the BNSS. Section 2(1)(k) thus becomes central to deciding who can claim the temporal benefit of BNSS safeguards.
- The Scheme of Cognizance in BNSS
Section 210 of BNSS governs cognizance of offences by a Magistrate. Under Section 210(1)(a), a Magistrate of the first class (and, in certain cases, a specially empowered Magistrate of the second class) may take cognizance upon receiving a complaint, including complaints filed by a person authorised under any special law. This express reference to complaints under special laws is central to the Court’s conclusion that complaints under PMLA fall within the complaint procedure under Chapter XVI of the BNSS.
Section 213 of BNSS, in turn, provides that no Court of Session shall take cognizance of an offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate, “except as otherwise expressly provided” by the BNSS or any other law in force. It is this qualifying clause that allows direct cognizance by Special Courts under PMLA, which are deemed to be Courts of Session but are specifically empowered by PMLA’s Section 44(1)(b) to take cognizance on a complaint without committal.
The Court harmonizes Section 213 of BNSS with the PMLA scheme by holding that, once such a complaint is filed under a special statute, the procedural provisions governing complaints—now Sections 223–228 of BNSS apply to the Special Court, absent inconsistency. This interpretive move is fortified by the BNSS’s own structure and the PMLA’s cross-reference to the CrPC/BNSS for procedural matters.
Structurally, then, Sections 210 and 213 of BNSS frame the jurisdictional gateways, while Sections 223–228 fill in the procedural content. Parvinder Singh uses this structure to argue that a Special Court exercising original criminal jurisdiction under a special law remains bound by the BNSS complaint architecture, including its newly added safeguards.
- Section 223 – Examination of the complainant and the new right of hearing
Section 223 of BNSS, which is situated in Chapter XVI, deals with examination of the complainant. Sub-section (1) substantially reenacts the earlier CrPC position by requiring the Magistrate, when taking cognizance on a complaint, to examine the complainant and any present witnesses on oath, with the substance of such examination reduced to writing and signed.
However, the first proviso marks a significant departure. It states in categorical terms that “no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.” The Supreme Court treats this as the fulcrum of the case. It describes the proviso as conferring a right on the accused to be heard before cognizance—a right which is explicitly linked to the broader right to a fair trial under Article 21.
Significantly, the Court characterizes this proviso as “substantive in nature”, notwithstanding its placement in a chapter generally regarded as procedural. It reasons that the proviso does not merely regulate courtroom mechanics but creates an enforceable entitlement that conditions the court’s power to take cognizance. The use of the word “shall” is interpreted as mandatory, failure of compliance rendering the cognizance order “void ab initio.”
Moreover, the Court makes clear that such non-compliance is not a mere irregularity curable under provisions akin to Sections 506 or 511 of BNSS, but an illegality that vitiates the very proceedings. This doctrinal stance greatly elevates the status of the Section 223(1) first proviso within the BNSS architecture.
This reading carries significant implications. If a pre-cognizance hearing is a substantive, mandatory right, then the BNSS envisions a participatory threshold at which the accused can seek to persuade the court that no case is made out even before process issues. Parvinder Singh thus signals a potentially significant shift in how the boundary between investigation, cognizance and trial is understood under the new code.
- Section 531 of BNSS – Repeal, savings and transitional application
Section 531 of BNSS repeals the CrPC but contains saving provisions. Section 531(2)(a) stipulates that appeals, applications, trials, inquiries or investigations pending immediately before BNSS commencement shall continue to be dealt with under the CrPC as if the BNSS had not come into force. The Court identifies the provision’s purpose as avoiding “piecemeal application” of CrPC and BNSS to the same proceeding and securing prospectivity of BNSS in ordinary cases.
At the same time, the Court draws a critical distinction between proceedings already covered by Section 531(2)(a) and situations where none of the enumerated categories—appeal, application, investigation, inquiry or trial—has commenced under the CrPC. In the latter class, a “substantive right” conferred by the BNSS is held to enure to the benefit of the accused.
The Court therefore refuses to treat Section 531(2)(a) as a blanket exclusion of BNSS at all stages where any procedural step had occurred under the CrPC. Instead, it looks to the nature and timing of the proceeding. Since, in the case at hand, only a ministerial direction to number the complaint and post it for cognizance had been issued before BNSS commencement—and no “inquiry” had begun within Section 2(1)(k)—the Court holds that Section 531(2)(a) does not prevent the accused from invoking the Section 223(1) hearing right once BNSS came into force.
By tying the availability of BNSS rights to the commencement of “inquiry” in this specific sense, the judgment poses a broader question: to what extent should newly enacted procedural rights benefit those who stand on the cusp of critical criminal process stages? Parvinder Singh answers in favour of inclusion, at least where only ministerial acts have taken place, thereby nudging transitional doctrine towards rights-maximizing outcomes.
- The complaint procedure and its application to special courts
The judgment also clarifies, in light of earlier precedents, that the BNSS complaint provisions in Sections 223–228 apply to complaints filed before Special Courts under special enactments, including PMLA. The Court reaffirms that the complaint procedure formerly contained in Sections 200–205 CrPC, now recast as Sections 223–228 of BNSS, governs complaints under Section 44(1)(b) PMLA, since no inconsistency exists between these provisions and the PMLA scheme.
In particular, the Court endorses the view that, once a complaint is filed, the Special Court must apply its mind to whether a prima facie case is made out (mirroring Section 203–204 CrPC functions), and that the ancillary powers embedded in the complaint provisions—such as dismissing the complaint for lack of material, postponing or issuing process, and dispensing with personal appearance—are available to the Special Court.
By explicitly tying these functions to the BNSS equivalents (Sections 223–228), the Court makes clear that the newly introduced first proviso to Section 223(1)—requiring a pre-cognizance hearing—is likewise attracted to such complaints. Indeed, in an earlier decision cited in the judgment, the Court had already held that where a complaint is filed after 1 July 2024, Section 223 of BNSS applies and failure to hear the accused before cognizance is sufficient, by itself, to invalidate the order.
This reasoning suggests that as more special courts begin to operate under the BNSS regime, the combined effect of Sections 4, 5 and 223 may gradually reshape the complaint stage from a largely ex parte threshold to a more dialogic, rights-sensitive interface between prosecution and accused.
- Consequences of non-compliance
In applying these doctrinal conclusions to the facts, the Court notes that while the prosecution complaint was filed prior to BNSS coming into force, cognizance was taken on 2 July 2024, after the commencement of BNSS, without hearing the accused, even though he was produced from judicial custody. It rejects the argument that the accused must demonstrate prejudice, holding instead that denial of the Section 223(1) hearing right is an illegality striking at the root of the proceedings.
Accordingly, the Court sets aside both the High Court’s judgment and the order taking cognizance and remands the matter to the Special Court to proceed afresh from the stage of taking cognizance, this time after affording the accused an opportunity of hearing in terms of Section 223(1) of BNSS. The direction underscores that the BNSS’s citizen-centric orientation is not merely aspirational but is to be enforced through robust judicial remedies where statutory safeguards are breached.
This approach raises interesting questions about how far courts should go in treating new procedural rights as jurisdictional thresholds rather than curable irregularities. Parvinder Singh answers by locating Section 223(1)’s proviso on the jurisdictional side of the line, suggesting that under the BNSS, certain procedural guarantees are so central to the fair trial project that their violation nullifies the very act of taking cognizance.
- Conclusion
The judgment in Parvinder Singh offers a compact yet far-reaching exposition of the BNSS, particularly in its interface with special statutes and transitional situations. First, it situates the BNSS as a successor procedural code that is expressly citizen-centric, with provisions like Section 223(1) designed to strengthen fair trial guarantees. Second, it clarifies that Section 4(2) and Section 5 of BNSS permit the code to operate alongside special statutes except where there is express or implied inconsistency, thereby enabling BNSS safeguards to complement special-law regimes such as PMLA.
Third, the decision gives precise content to “inquiry” under Section 2(1)(k), insisting on judicial application of mind as the touchstone, and uses this to cabin the scope of Section 531(2)(a)’s savings clause. Ministerial acts before BNSS commencement do not suffice to exempt later stages from the BNSS, especially where substantive rights are at stake.
Most significantly, the Court elevates the first proviso to Section 223(1) of BNSS to the status of a substantive, mandatory right. No court may now take cognizance on a complaint—whether under the BNS or a special law—without first giving the accused an opportunity of being heard, where the BNSS applies. Cognizance orders passed in disregard of this mandate are void ab initio and liable to be set aside, as demonstrated in the outcome of the case.
In this manner, Parvinder Singh lays down the doctrinal contours of key BNSS provisions and signals that courts will be exacting in ensuring adherence to the new code’s enhanced procedural protections, particularly at the crucial threshold stage of cognizance on complaint. At the same time, it opens a wider conversation about whether the BNSS should be read, case by case, as a vehicle for deepening participatory rights at all pre-trial stages, and how far this rights-centered reading can extend across the mosaic of special criminal statutes that now populate India’s legal landscape.
Pic courtesy: google/ images are subject to copyright
