TaxTMI 
TaxTMI 
2026 (5) TMI 1236
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.....2025 passed by the High Court of Uttarakhand wherein, an issue with respect to the scope and applicability of the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as the "BNSS") had arisen, while dealing with a case where the prosecution complaint under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the "PMLA") had been filed prior to the date of commencement of the BNSS. BRIEF FACTS: 3. An ECIR was registered by the respondent against the appellant being ECIR/DNSZO/04/2023 on 24.07.2023, pursuant to which he was arrested on 27.04.2024. Within two months from the date of the arrest, a prosecution complaint was duly filed by the respondent on 24.06.2024, invoking Sections 44 and 45 of the PMLA for the offences under Section 3 read with Section 4 of the PMLA before the designated Special Court. On the very same day, the Special Court issued a direction to register the complaint so filed as a miscellaneous case and, thus, fixed it for hearing on cognizance on 28.06.2024. 4. When the case came up for hearing on the said date, it was once again fixed for hearing on cognizance on 02.07.2024 since ....
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....nizance order dated 02.07.2024. 8. The High Court, vide the impugned judgment dated 19.05.2025, has been pleased to hold that the provisions of Section 223 of the BNSS will not have any application to the instant case as the proceedings under the PMLA were initiated against the appellant much prior to the commencement of the BNSS. Accordingly, the criminal revision filed in CRLR No. 218/2025 has been dismissed by placing reliance upon Section 531(2)(a) of the BNSS, which saves criminal proceedings initiated prior to the commencement of the BNSS to continue under the provisions of the erstwhile CrPC. On the same day, the criminal revision filed in CRLR No. 183/2025 was partly allowed by the High Court by quashing the order dated 22.03.2025 to the extent of the charges framed and remanded the matter to the Special Court for fresh hearing on the issue of framing of charges. SUBMISSIONS ON BEHALF OF THE APPELLANT: 9. The learned Senior Counsel appearing for the appellant submitted that the appellant has, admittedly, not been heard by the Special Court at the time of taking cognizance. It was further submitted that Sections 200 to 205 of the CrPC, which have been reiterated und....
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.... the law as laid down by this Court in Hardeep Singh vs. State of Punjab, (2014) 3 SCC 92, it has to be held that an inquiry had already commenced prior to the commencement of the BNSS and, hence, the provisions of the CrPC shall be applicable. 13. In any case, the appellant has not shown any prejudice caused to him due to the Special Court having taken cognizance without hearing him. Hence, the impugned order ought not to be interfered with, and the appeal deserves to be dismissed. 14. Before we go into the issues raised by the learned Senior Counsel and the learned ASG, we shall now have a look at the relevant provisions. DISCUSSION ON RELEVANT LEGAL PROVISIONS (i) THE PREVENTION OF MONEY LAUNDERING ACT, 2002 Section 43 of the PMLA "43. Special Courts.-(1) The Central Government, in consultation with the Chief Justice of the High Court, shall, for trial of offence punishable under section 4, by notification, designate, one or more Courts of Session as Special Court or Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification. Explanation.-In this sub-section, "High Court" means the Hi....
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....2 of 1974), as it applies to a trial before a Court of Session. Explanation.-For the removal of doubts, it is clarified that,- (i) the jurisdiction of the Special Court while dealing with the offence under this Act, during investigation, enquiry or trial under this Act, shall not be dependent upon any orders passed in respect of the scheduled offence, and the trial of both sets of offences by the same court shall not be construed as joint trial; (ii) the complaint shall be deemed to include any subsequent complaint in respect of further investigation that may be conducted to bring any further evidence, oral or documentary, against any accused person involved in respect of the offence, for which complaint has already been filed, whether named in the original complaint or not. (2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section includes also a referenc....
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....have effect accordingly." (emphasis supplied) 17. Section 46 of the PMLA treats the Special Court to be deemed to be a Court of Session, wherein, the provisions of the CrPC (now BNSS) shall apply to the proceedings under the PMLA, save as otherwise provided under the PMLA. In other words, the procedural framework governing the proceedings before a Court of Session stands extended to the Special Court under the PMLA. Section 65 of the PMLA "65. Code of Criminal Procedure, 1973 to apply.- The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act." (emphasis supplied) 18. Section 65 of the PMLA makes the provisions of the CrPC (now BNSS) applicable to proceedings under the PMLA, provided that they are not inconsistent with the provisions of the PMLA. It acknowledges the overriding effect of the PMLA while also facilitating the application of the other provisions contained in the CrPC (now BNSS). Section 71 of the PMLA ....
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.... place of investigating, inquiring into, trying or otherwise dealing with such offences." (emphasis supplied) Section 5 of the BNSS, 2023 "5. Saving.- Nothing contained in this Sanhita shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." (emphasis supplied) 22. Similar to the provisions contained under the PMLA, Section 4(2) of the BNSS makes the provisions of the BNSS subject to any other enactment governing the field while dealing with offences under any law apart from those under the Bharatiya Nyaya Sanhita, 2023. 23. Section 5 of the BNSS extends protection to a special or local law, only in the absence of a specific provision to the contrary under the BNSS overriding such special or local law. Section 210 of the BNSS, 2023 "210. Cognizance of offences by Magistrate.-(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in thi....
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....g 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 212: Provided also that if the Magistrate makes over the case to another Magistrate under Section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. (2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless- (a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received." (emphasis supplied) 26. Section 223 of the BNSS deals with the examination of a complainant. The first proviso to Section 223(1) of the BNSS prohibits the Magistrate from taking cognizance of an offence, unless the accused is given an opportunity of being heard. 27. Though Chapter XVI of ....
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....ht has been conferred under the BNSS. LEGAL & FACTUAL ANALYSIS 30. The issue of application of the procedure pertaining to a complaint under the CrPC (now BNSS) to proceedings under the PMLA is no longer res integra, as has been elaborately dealt with by this Court in the decisions of Tarsem Lal (supra), Yash Tuteja (supra) and Kushal Kumar Agarwal (supra). Though we find that in the instant case the said issue has not been specifically raised either before the Trial Court or the High Court, we are willing to consider the same, being a pure question of law. 31. The submission of the learned ASG that the earlier decision of this Court in Kushal Kumar Agarwal (supra) will have to be reconsidered and, therefore, be referred to a larger Bench cannot be countenanced. Taking away the applicability of the provisions governing a complaint under Sections 200 to 205 of the CrPC (now Sections 223 to 228 of the BNSS) to the proceedings under the PMLA, including the one that has a serious bearing not only on the right of the accused but also on the power of the Court, would lead to disastrous consequences. If the argument so made by the learned ASG is accepted, then the Special Court u....
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.... pursuant to a summons before the Special Court, on a sufficient cause being shown, the Special Court can grant exemption from personal appearance to the accused by exercising power under Section 205 CrPC;" *** (emphasis supplied) Yash Tuteja & Anr. v. Union of India, (2024) 8 SCC 465 "6. The only mode by which the cognizance of the offence under Section 3, punishable under Section 4 PMLA, can be taken by the Special Court is upon a complaint filed by the Authority authorised on this behalf. Section 46 PMLA provides that the provisions of CrPC (including the provisions as to bails or bonds) shall apply to proceedings before a Special Court and for the purposes of CrPC provisions, the Special Court shall be deemed to be a Court of Sessions. However, sub-section (1) of Section 46 starts with the words "save as otherwise provided in this Act". Considering the provisions of Section 46(1) PMLA, save as otherwise provided in PMLA, the provisions of the Code of Criminal Procedure, 1973 (for short "CrPC") shall apply to the proceedings before a Special Court. Therefore, once a complaint is filed before the Special Court, the provisions of Sections 200 to....
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....hich is relevant. While doing so, it is presumed that the Court would take note of the complaint along with the materials placed before it. 35. The learned ASG placed reliance upon the decision of this Court in Hardeep Singh (supra) to contend that in the facts of the instant case, the inquiry had been initiated upon filing of the prosecution complaint on 24.06.2024 which is, admittedly, prior to the commencement of the BNSS on 01.07.2024. We find that the said decision actually militates against the submission made by him, and would only quote the following paragraphs in the aforesaid decision: "26. In Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167, this Court held: (AIR p. 1169, para 9) "9. ... once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizan....