2025 (7) TMI 1870

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....rnakulam, arose out of ECIR/KCZO/07/2020 initiated pursuant to FIR No. V.C.02/2014/SCE of VACB, Special Cell, Ernakulam. The petitioners herein are accused Nos. 1 and 2 in the above case. 2. Heard the learned counsel for the petitioners and the learned Standing Counsel appearing for Enforcement Directorate, in detail. Perused the relevant materials available. 3. In this matter, the prosecution allegation is that, the 1st accused/1st petitioner, while working as a Government servant during the period from 01.01.2000 to 17.01.2014, amazed assets worth Rs. 1,43,58,155/-, which is 113.45% in excess of his known sources of income and thereby committed offences 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 and under Section....

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....NSS. Questions that arose for consideration were; whether cognizance of an offence under the PMLA can be taken without complying with the mandatory procedural requirement under Section 223(1) of the BNSS, which requires giving the accused an opportunity of being heard before taking cognizance, and whether this new procedural safeguard introduced in the BNSS applies to money laundering complaints filed by the Enforcement Directorate. 5. Thereafter, allowing the prayer sought for, the Apex Court held in paragraph Nos. 6 and 7 as under: The proviso to sub-section (1) of Section 223 puts an embargo on the power of the Court to take cognizance by providing that no cognizance of an offence shall be taken by the Magistrate without giving the a....

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...., the matter can be reverted back to the pre-cognizance stage after setting aside the order taking cognizance. 9. Adverting to the legal position, it is necessary to extract Section 223(1) of BNSS and the same provides as under: 223. Examination of complainant:- (1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that no cognizance of an offence under this section shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided fu....

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.....C, which did not mandate this pre-cognizance hearing for the accused. 12. Similarly, examination of the complainant and witnesses is not required if the complaint is made by a public servant in their official capacity or by a court. Additionally, if a case is transferred under Section 212 of BNSS, the new Magistrate is not required to re-examine the complainant and witnesses if they were already examined by the previous Magistrate. 13. Thus, on evaluation of the materials available and the order issuing summons after taking cognizance, it is emphatically clear that, in this case, the cognizance taken by the learned Special Judge is without complying the mandate of the first proviso to Section 223 (1) of the BNSS and therefore, the same i....