Pre-cognizance hearing rights apply before SEBI Special Courts take cognizance of complaints under the procedural framework.

The first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 requires the SEBI Special Court to hear an accused before taking cognizance of a SEBI complaint. The notes state that the BNSS procedural framework applies to special-enactment offences unless displaced by contrary procedure; while the SEBI Act limits cognizance to complaints by SEBI, it does not prescribe how cognizance must be taken. The Special Court's status as a Court of Session does not exclude this mandatory pre-cognizance hearing, which is described as a substantive fair-trial right. Cognizance without such hearing is stated to be void.

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Issues: Whether the Special Court under the Securities and Exchange Board of India Act, 1992 must afford an accused a hearing under the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 before taking cognizance on a complaint by SEBI.

Analysis: Section 4(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 applies its procedural framework to offences under special enactments unless the special enactment prescribes a contrary procedure. Section 26 of the Securities and Exchange Board of India Act, 1992 restricts cognizance to a complaint by the Board, but does not prescribe the manner in which cognizance is to be taken. Section 26-D applies the criminal procedure law to proceedings before the Special Court, subject only to a contrary provision in the Act. The deeming of the Special Court as a Court of Session does not exclude the mandatory pre-cognizance hearing under the first proviso to Section 223(1). The proviso confers a substantive right integral to fair trial, and cognizance taken without complying with it is void.

Conclusion: The Special Court must give the accused an opportunity of hearing under the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 before taking cognizance of an offence under the Securities and Exchange Board of India Act, 1992. The issue is decided in favour of the petitioner.

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