TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1871
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.... P-8, whereby the Special Judge proceeded to take cognizance of the offences against the petitioner and summoned him along with other accused to face trial for commission of offences under Section 3 read with Section 70 punishable under Section 4 of the PMLA in case COMA-9-2024 titled Directorate of Enforcement v. Sikander Singh and others arising out of ECIR/GNZO/20/ 2021, dated 16.11.2021. 2. As per facts apparent on record, in brief, an enquiry, ECIR/GNZO/20/2021 dated 16.11.2021, pertaining to the aforementioned offences under the PMLA was registered by the respondent, pursuant whereof the petitioner was arrested in the case on 30.04.2024. The prosecution complaint in the matter under Sections 44 and 45 of the PMLA was presented before the Additional Sessions Judge/Vacation Judge, Gurugram, on 27.06.2024. As it was required to be heard by the Sessions Judge, Gurugram, being the Special Judge under the PMLA, the Additional Sessions Judge directed to check and register the complaint, and sent the file to the Sessions Judge immediately for 04.07.2024. The case was taken up by the Sessions Judge/Special Judge on 31.07.2024, but was not heard and adjourned to 14.08.2024 for conside....
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....ing cognizance. In support of the submissions, learned senior counsel has placed reliance upon order, dated 09.05.2025, passed by the Supreme Court in Criminal Appeal No.2749 of 2025 titled Kushal Kumar Agarwal v. Directorate of Enforcement. In that matter ECIR was registered against the appellant/complainant on 24.04.2014, and the Special Judge (PC Act) took cognizance against him on 20.11.2024, in a complaint filed by the Directorate of Enforcement under Section 44(1)(b) of the PMLA. Since by the time cognizance was taken the BNSS had been enforced, the Supreme Court directed the trial Court to afford hearing to the appellant under proviso to Section 223 of the BNSS. 4. Learned counsel for the respondent, on the contrary, contends that ECIR is not an FIR, as it is an internal document of the Directorate. Therefore, by registration of ECIR no inquiry or proceedings can be said to be pending against the accused in a Court, and Section 2(g) of the Cr.P.C. will not apply. It applies when the prosecution complaint is forwarded to the Court. Accordingly, the date of filing the complaint against the accused becomes the terminal date, and in the instant case, undisputedly, it was filed ....
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....ainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192: Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. 202. Postponement of issue of process.-(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made- (a) where it appears to the Magistrate that the ....
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....nt and the witnesses, the latter Magistrate need not re-examine them. (3) xxx xxx 7.3. 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. Section 202 Cr.P.C. further provides that any Magistrate, on receipt of a complaint of an offence he is authorised to take cognizance of, can inquire into the case himself or order investigation by a Police officer. Therefore, the pre-requisite to such an inquiry is the Magistrate's competence to take cognizance of the offence alleged. Unless the offence is triable by the Magistrate, he is precluded from inquiring into it. Such an inquiry without doubt req....
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....ir trial. Therefore, there is no reason why the benefit of hearing should not be afforded to the accused after coming into force of the BNSS, even if complaint against him has been technically filed before coming into force of the BNSS on 01.07.2024. The interests of justice and fair trial require the right should be given in such cases by applying the rule of beneficial construction of statute, as the provisions of Section 200 Cr.P.C. and 223 BNSS, meant for taking cognizance of offence on a complaint, are not in contravention of each other and only the procedure of taking cognizance has been varied to the limited extent of providing prior hearing to the accused. 8.1. The Courts have applied the rule to give benefit of ex-post facto laws to the accused. A case in point is T. Barai v. Henry AH HOE and another, (1983) 1 SCC 177, wherein the Supreme Court considered the issue whether the Central Amendment Act [Prevention of Food Adulteration (Amendment) Act, 1976] will impliedly repeal the West Bengal Amendment Act [Prevention of Adulteration of Food, Drugs and Cosmetics (West Bengal Amendment) Act, 1973], which provided for imprisonment for life on account of commission of offence ....