Delhi HC To Examine Retrospective Applicability Of S.223 BNSS On Opportunity Of Hearing To Accused In ED's Complaint Filed Post-Enactment

For context, Section 223 of BNSS deals with examination of complainants by a magistrate and the proviso states that a Magistrate shall not take cognizance of an offence without giving the accused an opportunity of being heard. It is to be noted that the BNSS came into force on July 1 this year.

The plea claims that after Prosecution Complaint was filed on August 29 in a case probed by the Enforcement Directorate–which had registered the ECIR in 2021 (based on CBI's FIR registered in 2020) , the Trial Court took cognizance of the offence upon the complaint and summoned to the accused persons/entities, without giving them an opportunity of being heard on the point of cognizance in terms Sec. 223, BNSS.

A revision petition was listed before Justice Chandra Dhari Singh and the counsel appearing for the parties informed the court that the legal issue with regard to proviso to Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 and application of Section 531 (Repeal and Savings) BNSS are pending for adjudication before the Coordinate Bench of the high court in another matter. It was prayed that in the interest of justice the matters may be heard by one bench.

The high court then in its order said, "This Court is of the view that since the questions of law involved in the instant petition as well as in the aforesaid matters which are being heard by the Cooridnate Bench of this Court are similar, i.e., all the matters involve similar legal issues with regard to Sections 223 and 531 of the BNSS, it would be appropriate that all the matters be heard by one Bench in the interest of justice as well as to avoid multiplicity of proceedings. 5. Accordingly, in the interest of justice, the Registry is directed to list the instant petition alongwith CRL. M.C. 7860/2024 and CRL.REV. P 1243/2024 before this Court on 18th December, 2024, subject to the orders of the Hon'ble Judge In-Charge (Criminal Side)".

"In the meantime, the proceedings before the learned Trial Court with respect to the instant petitioner be scheduled after 18th December, 2024. Further, with regard to the other accused persons, the proceedings may continue," the high court added.

The petitioner has contended that as the prosecution complaint was filed after the BNSS came into force, the cognizance should governed by BNSS and not CrPC.

The plea relies on Deepu & Ors. v. State of U.P. & Ors (2024 LiveLaw (AB) 517), wherein the Allahabad High Court has observed that the cognizance of the pending investigation on or after July 1 2024, would be taken as per the BNSS, and all the subsequent proceedings, including enquiry, trial, or appeal, would be conducted as per the procedure of BNSS.

The plea argues that as the PMLA does not lay down any procedure for cognizance, the same shall be governed by the provisions of CrPC/BNSS, whichever is applicable. It is stated that Section 223 BNSS will be applicable to a complaint filed under the PMLA.

The petitioner submits that when any amendment or enactment in law is beneficial to the accused persons, such benefit needs to be applied and extended retrospectively.

The petition thus challenges the Trial Court's order taking cognizance of the prosecution complaint without giving the petitioner an opportunity of being heard in terms of Section 223 BNSS.

The matter is next listed on December 18.

Case title: Purshottam Profiles vs. ED

(CRL.REV.P. 1300/2024 & CRL.M.A. 34693-94/2024)