Supreme Court Declares Right to be Heard Before Cognizance is a Substantive Mandate Under BNSS, Vitiating PMLA Proceedings Conducted Without Accused Participation.
The transition from the century-old Code of Criminal Procedure (CrPC) to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has sparked significant debate regarding the rights of the accused. A recent landmark judgment by the Supreme Court of India has clarified a pivotal shift: the right of an accused to be heard even before a court officially takes notice of a crime. This decision fundamentally alters the pre-trial landscape, especially in high-stakes cases like money laundering.
The Mandatory Right to be HeardPerhaps the most impactful takeaway is the Court's interpretation of the first proviso to Section 223(1) of the BNSS. Unlike the previous regime, the BNSS now mandates that a Magistrate cannot take cognizance of an offence without giving the accused an opportunity to be heard. The Court elevated this from a mere procedural rule to a substantive right.
This is a major departure from traditional criminal jurisprudence where the "cognizance" stage was considered a matter strictly between the court and the complainant. By involving the accused at this nascent stage, the law now provides a shield against frivolous or unfounded prosecutions before the trial machinery even begins to grind.
Substantive Right vs. Procedural IrregularityThe Court was firm in distinguishing between a "mere irregularity" and a "vitiating illegality". It held that the failure to hear an accused at the cognizance stage is not a minor error that can be overlooked if no "prejudice" is shown. Instead, it is a fundamental breach of the right to a fair trial under Article 21 of the Constitution.
"We hold that the aforesaid proviso is substantive in nature... 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."
This means that any order taking cognizance without such a hearing is void ab initio—legally dead from the start. This ensures that investigative agencies and special courts cannot bypass the new statutory protections by labeling them as "technicalities".
The "Inquiry" Threshold and the BNSS TimelineA fascinating technical aspect of the judgment involves Section 531 of the BNSS, which saves "pending" proceedings. The State argued that because the complaint was filed before the BNSS came into force, the old CrPC (which had no such hearing requirement) should apply. The Court disagreed, clarifying what constitutes an "inquiry".
The Court ruled that mere ministerial acts—like numbering a complaint or scheduling a date—do not constitute an "inquiry". An inquiry only begins when there is a "judicial application of mind". Since the judge only looked at the merits of the case after the BNSS was enacted, the new law—and its requirement for a hearing—applied in full force.
PMLA is Not Immune to General ProcedureThe Directorate of Enforcement (ED) often argues that the Prevention of Money Laundering Act (PMLA) is a "stand-alone" special statute that overrides general criminal law. The Supreme Court has now reinforced that while PMLA is special, it must still follow the procedural framework of the BNSS where the two are not inconsistent.
The judgment confirms that the Special Court under PMLA acts as a Court of Session and must adhere to the BNSS provisions regarding the examination of complainants and the taking of cognizance. This ensures that even in specialized financial crimes, the basic constitutional guarantees of the accused remain intact.
This judgment marks a new era in Indian criminal law, where the "citizen-centric" spirit of the BNSS is being enforced by the highest court. It signals that the path to justice must be paved with transparency and the right to be heard, regardless of the severity of the allegations.
Case: PARVINDER SINGH v. ENFORCEMENT OF DIRECTORATE
Law: Bharatiya Nagarik Suraksha Sanhita, Prevention of Money-Laundering Act, Code of Criminal Procedure, Constitution of India, Bharatiya Nyaya Sanhita.
Citation: 2026 INSC 519
Decision Date: 19-05-2026