2025 (8) TMI 1749

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....he court of ASJ-03, Central, Tis Hazari Courts, Delhi in CC No. 01/2024 titled "Directorate of Enforcement vs. M/s. Sunstar Overseas Ltd. & Ors." arising out of ECIR/GNZO/2021 dated 09.04.2021. 2. Learned senior counsel for the petitioner submitted that, in terms of the Ministry of Home Affairs notification dated 23.02.2024, the BNSS came into force on 01.07.2024, and since the Prosecution Complaint in the present case was filed on 29.08.2024, cognizance thereof must be governed by BNSS provisions rather than the CrPC, 1973. The Enforcement Directorate's Prosecution Complaint is not a final report under Section 193(3) BNSS but squarely falls within the ambit of Section 223 BNSS. 3. It is further submitted that Section 531 BNSS, being ....

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.... PMLA, filed after 01.07.2024. Section 223, BNSS reads as under:- "Section 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 shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public serva....

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.... 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 accused an opportunity of being heard. 7. In this case, admittedly, an opportunity of being heard was not given by the learned Special Judge to the appellant before taking cognizance of the offence on the complaint. Only on that ground, the impugned order dated 20th April, 2024, will have to be set aside. ...... 10. The impugned order dated 20th November, 2024, is set aside only on the ground of non-compliance with the proviso to sub-section (1) of Section 223 of the BNSS." 7. In view of the above, this Court is of the considered opinion t....