2025 (7) TMI 1871 - HC - Money Laundering

Filing complaint before Additional Sessions Judge isn't inquiry under Section 2(g) Cr.P.C.; accused must get hearing before cognizance

The HC held that the filing of a prosecution complaint before an Additional Sessions Judge did not constitute an inquiry under Section 2(g) Cr.P.C., as ... Money Laundering - entitlement to hearing in terms of proviso to Section 223 of the BNSS before taking cognizance of the offences - HELD THAT:- Under Section 200 Cr.P.C., a Magistrate is empowered to take cognizance of an offence on examining the complainant and the witnesses present. Under Section 202 Cr.P.C., the Magistrate may postpone the issue of process and inquire into the complaint of an offence triable by him, or direct investigation by a police officer or any other person, as he thinks fit. In case the accused resides beyond his jurisdiction, the issue of process has to be postponed mandatorily to hold the inquiry or investigation, as the case may be. The word ‘inquiry’, under Section 2(g) Cr.P.C. refers to an inquiry other than a trial conducted under the Code by a Magistrate or Court. In the instant case, the respondent presented the prosecution complaint before the Additional Sessions Judge on 27.06.2024, who ordered to check and register the same, and sent the file to the competent Court/Special Judge for 04.07.2024. Although the matter was listed for hearing before the Special Judge on 31.07.2024, the arguments for taking cognizance of offences were not advanced. It therefore needs to be ascertained as to whether presentation/filing of the complaint amounts to commencement of inquiry into it. In terms of Section 2(g) Cr.P.C., ‘inquiry’ means an inquiry other than trial conducted by a Magistrate or Court under the Code - the filing of prosecution complaint by the respondent before the Additional Sessions Judge on 27.06.2024 would not attract Section 531(2)(a) BNSS so as to make provisions of the Cr.P.C. applicable to it, because neither the Additional Sessions Judge was competent to take cognizance of the alleged offences under the PMLA, nor did he apply judicial mind to the complaint/allegations. And cognizance of the offences was taken by the Special Judge after coming into force of the BNSS, vide impugned order dated 05.12.2024. When an ex-post facto law can be applied to give the benefit of reduced punishment to a person accused of committing an offence under the unamended statute by invoking the rule of beneficial construction, it can be made applicable to the instant case as well. It is accordingly held that the varied procedure of giving prior hearing to the accused before taking cognizance will apply to the prosecution complaint in question, which gives the petitioner right of hearing in terms of Section 223 BNSS. The impugned orders are set aside directing the Special Judge under the PMLA to pass a fresh order after affording an opportunity of hearing to the petitioner in terms of first proviso to Section 223(1) BNSS, within a period of eight weeks of receiving a certified copy of this order - petition allowed. ISSUES: Whether the accused is entitled to an opportunity of hearing before taking cognizance of offences under the proviso to Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).Whether the presentation/filing of a prosecution complaint before the enforcement of BNSS amounts to commencement of an 'inquiry' under Section 2(g) of the Code of Criminal Procedure, 1973 (Cr.P.C.) for the purpose of applying the savings clause under Section 531(2)(a) BNSS.Whether the provisions of Section 223 BNSS, which require prior hearing before taking cognizance, apply retrospectively or only prospectively to complaints filed before the BNSS came into force. RULINGS / HOLDINGS: The accused is entitled to an opportunity of hearing before taking cognizance of offences under the proviso to Section 223 BNSS, and this right must be complied with even if the complaint was technically filed before the BNSS came into force.Mere presentation or filing of a prosecution complaint before the enforcement of BNSS does not constitute commencement of an 'inquiry' under Section 2(g) Cr.P.C., as judicial mind was not applied at that stage; hence, the savings clause under Section 531(2)(a) BNSS does not apply.The varied procedure under Section 223 BNSS, providing the accused a right of hearing before taking cognizance, applies to the instant complaint by operation of the rule of beneficial construction of statutes, ensuring the accused's right to a fair trial and natural justice. RATIONALE: The Court relied on Section 531(2)(a) BNSS, which preserves proceedings pending immediately before the BNSS enforcement to continue under the Cr.P.C., but held that 'inquiry' under Section 2(g) Cr.P.C. requires judicial application of mind by a Magistrate or Court, which was absent at the complaint filing stage.Sections 200 and 202 Cr.P.C. were examined to clarify that cognizance and inquiry involve examination and judicial consideration, not mere administrative filing or registration of complaints.The Court applied the 'rule of beneficial construction' of statutes, referencing precedent where ex post facto laws that mitigate punishment or enhance procedural rights are applied to pending cases to uphold principles of natural justice and fair trial under Articles 14 and 21 of the Constitution.Distinguishing the present case from precedent where the complaint was filed after BNSS enforcement, the Court emphasized that the right to hearing under Section 223 BNSS should be extended even when the complaint was filed prior to BNSS but cognizance was taken after its enforcement.