Cognizance, Custody and Complaints under PMLA: The Supreme Court's Integration of BNSS and CrPC Norms

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.... opportunity of being heard. Finding non-compliance, the Court set aside the order taking cognizance. This ruling cannot be understood in isolation. It explicitly relies on the earlier decisions of 8 April 2024 and 16 May 2024, which establish, in relation to PMLA complaints: * That complaints u/s 44(1)(b) are governed by Sections 200-204 CrPC (Yash Tuteja); and * That, in such complaints, CrPC provisions concerning summons, warrants, bonds and appearance (including Sections 88, 205, 70, 89) apply, with important safeguards for personal liberty and limitations on the Enforcement Directorate's (ED's) arrest powers after cognizance (Tarsem Lal). Read together, these decisions realign PMLA complaint procedure with general criminal process, while preserving PMLA's substantive rigour. The 2025 decision extends that jurisprudence into the BNSS regime, superimposing a new pre-cognizance hearing requirement in PMLA prosecutions. 2. Key Legal Issues 2.1 Applicability of CrPC/BNSS provisions to PMLA complaints The primary recurring issue is whether, and to what extent, general criminal procedure (CrPC, and now BNSS) governs complaints u/s 44(1)(b) PMLA. This is a questio....

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...." as none of these are inconsistent with PMLA; and * Consequently, the entire architecture of summons, warrants, appearance and bonds in Chapter XVI and Chapter VI CrPC applies. The May 2025 decision carries this line of reasoning forward into the BNSS era. Recognising Section 223 BNSS as the successor to Section 200 CrPC, the Court held that, because prior precedent has already determined that complaints u/s 44(1)(b) are governed by Sections 200-204 CrPC, the corresponding BNSS provisions (Sections 223-226) must now apply to complaints filed after 1 July 2024. This is doctrinally consistent: the thread is that PMLA is a special statute primarily in its substantive and some procedural aspects (e.g., Section 19, Section 45, Section 50), but does not displace the basic complaint-cognizance-process scheme of general criminal procedure unless expressly inconsistent. 3.2 Existence of scheduled offence as condition precedent to PMLA prosecution The April 2024 judgment, in dealing with a PMLA complaint founded on Income-tax Act and IPC offences, squarely applied the earlier ruling in Pavana Dibbur. The Court reiterated that: * A "scheduled offence" is a condition precedent to the ....

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....matters involving supplementary complaints. Nonetheless, the operative holding is clear: compliance with the Section 223(1) proviso is mandatory in PMLA complaints filed after 1 July 2024, and failure results in invalidation of the cognizance order. 3.4 Arrest, custody and process in PMLA cases post-complaint The May 2024 decision undertakes a comprehensive analysis of CrPC provisions in the specific context of PMLA complaints where the accused was not arrested prior to filing of the complaint and cognizance. Key strands include: * Summons vs. warrant (Section 204 CrPC): Given that PMLA offences are warrant cases, the Court held that as a general rule, where the accused has not been arrested till the filing of complaint, the Special Court should issue summons, not warrants, for securing presence, drawing on Inder Mohan Goswami to emphasise personal liberty and a graduated approach to warrants. * Appearance on summons and custody: The Court rejected the argument that an accused appearing on summons is in "deemed custody". Such an accused is not required to seek bail. The Court pointed to Section 205 CrPC (dispensation of personal appearance) and Section 88 CrPC (bond for appe....

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.... Section 45(1) PMLA does not apply to such orders or to applications for cancellation of warrants issued merely to secure presence. * After cognizance on a PMLA complaint, ED cannot exercise Section 19 arrest powers against persons already shown as accused in that complaint; custody for further investigation must be sought from the Special Court. * From May 2025 decision: * With BNSS in force, PMLA complaints u/s 44(1)(b) filed after 1 July 2024 are governed by Chapter XVI BNSS (Sections 223-226), in place of Sections 200-204 CrPC. * The first proviso to Section 223(1) BNSS is mandatory and creates an embargo: no cognizance can be taken without giving the accused an opportunity of being heard. * Non-compliance with the Section 223(1) proviso invalidates the order taking cognizance, irrespective of the merits of the complaint. 4.2 Obiter dicta and open questions Notable dicta and unresolved issues include: * The precise content and scope of the "opportunity of being heard" under the Section 223(1) proviso-especially whether the accused may rely on defence material, and the extent of enquiry by the Special Court-are left for future determination. * Whether subsequent ....