This commentary provides doctrinal analysis and practical insights on the legal issue discussed below. The judgment is analysed in the context of its factual background, issues framed, and conclusions reached by the Court.

2026 (5) TMI 1236 - Supreme Court

Introduction

The question whether the complaint procedure under the Code of Criminal Procedure, 1973 (CrPC), now reflected in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), applies to a prosecution complaint under the Prevention of Money-Laundering Act, 2002 (PMLA) has acquired particular importance after the insertion of an express pre-cognizance hearing requirement in the first proviso to Section 223(1) of the BNSS.

In 2026 (5) TMI 1236 - Supreme Court, the Supreme Court held that the complaint procedure formerly contained in Sections 200 to 205 of the CrPC, and now reflected in Sections 223 to 228 of the BNSS, applies to a complaint filed under Section 44(1)(b) of the PMLA. Consequently, where the BNSS governs the cognizance stage, the accused must be afforded an opportunity of hearing before cognizance is taken. The Court characterised this safeguard as substantive, mandatory and integral to a fair trial under Article 21 of the Constitution of India.

The ruling is significant for two connected reasons. First, it rejects the proposition that the PMLA Special Court may disregard the general complaint procedure merely because it is a Court of Session exercising special statutory jurisdiction. Secondly, it confines the BNSS saving clause to proceedings that had genuinely reached a pending appeal, application, trial, inquiry or investigation before commencement of the BNSS. A ministerial direction to register a complaint and post it for consideration of cognizance does not, by itself, constitute an inquiry.

Legal & Statutory Context

The PMLA framework: special jurisdiction with incorporated criminal procedure

Section 44 of the Prevention of Money-Laundering Act, 2002 is the immediate source of the Special Court's cognizance jurisdiction. Section 44(1)(b) provides that a Special Court may, upon a complaint by an authorised authority, take cognizance of an offence under Section 3 "without the accused being committed to it for trial". The exclusion is thus directed to committal; it does not create a self-contained and exclusionary procedure for every facet of cognizance.

Section 44(1)(d) further provides that the Special Court, while trying the scheduled offence or the money-laundering offence, shall hold trial in accordance with the CrPC "as it applies to a trial before a Court of Session". Section 43 of the PMLA also designates a Court of Session as the Special Court. The statutory design therefore confers special jurisdiction upon a Sessions Court but does not detach that Court from the procedural framework applicable to criminal proceedings.

Section 46(1) of the PMLA is still more explicit. It states: "Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (including the provisions as to bails or bonds), shall apply to the proceedings before a Special Court", and deems the Special Court to be a Court of Session for that purpose. Likewise, Section 65 of the PMLA makes the CrPC applicable, insofar as it is not inconsistent with the Act, to "arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act".

The overriding provision in Section 71 of the PMLA gives the Act effect notwithstanding anything inconsistent in another law. It does not, however, eliminate the incorporation effected by Sections 46 and 65. The operative test is inconsistency. Where the PMLA makes a contrary provision, that special provision prevails. Where it does not, the criminal procedure provisions expressly incorporated by the PMLA continue to govern.

The BNSS complaint procedure and the hearing requirement

Section 4(2) of the BNSS applies its procedure to offences under other laws, subject to an enactment regulating the manner or place of investigation, inquiry, trial or other dealing with those offences. Section 5 of the BNSS correspondingly preserves a special or local law, special jurisdiction, power or form of procedure, in the absence of a specific contrary provision in the BNSS. These provisions operate consistently with the PMLA's own incorporation-and-inconsistency model.

Section 223(1) of the BNSS, in its material part, requires a Magistrate taking cognizance on a complaint to examine the complainant and available witnesses on oath. Its first proviso imposes a separate and unqualified restraint: "no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard." This is the decisive operative phrase.

The further provisos to Section 223(1) permit the dispensing with examination of the complainant and witnesses where a written complaint is made by a public servant acting in official discharge or by a Court, and in specified transfer situations. They do not dispense with the accused's hearing under the first proviso. The statutory exceptions to complainant examination cannot be treated as exceptions to the distinct pre-cognizance hearing requirement.

For transitional cases, Section 531(2)(a) of the BNSS provides that an appeal, application, trial, inquiry or investigation pending immediately before the BNSS came into force shall continue under the CrPC as if the BNSS had not come into force. The definition of "inquiry" in Section 2(1)(k) of the BNSS means every inquiry, other than a trial, conducted under the Sanhita by a Magistrate or Court. Its application was central to the transitional issue.

Interpretative Issues

Does direct cognizance under Section 44(1)(b) exclude complaint safeguards?

The phrase "without the accused being committed to it for trial" in Section 44(1)(b) removes the ordinary requirement of committal to a Court of Session. It does not exclude the Special Court's duty to apply its judicial mind to the complaint, determine whether a prima facie PMLA offence is disclosed, dismiss an untenable complaint where the law permits, or issue appropriate process where a case is made out. Reading Section 44 as a complete exclusion of the complaint procedure would deprive the Special Court of procedural powers that are necessary to deal lawfully with a complaint placed before it.

Can Section 71 override a BNSS safeguard simply because the PMLA is a special law?

No. Section 71 operates only where there is an inconsistency. The doctrinal question is not whether the PMLA is special and the BNSS is general; it is whether the PMLA prescribes a procedure incompatible with the relevant BNSS requirement. A direct cognizance provision is not inconsistent with a hearing requirement governing the manner in which cognizance is validly taken. The two provisions can operate together: the Special Court may take cognizance directly, without committal, but only after the mandatory hearing required by Section 223(1), where the BNSS applies.

When does the BNSS saving clause preserve CrPC procedure?

The relevant inquiry is whether a statutory proceeding enumerated in Section 531(2)(a) was pending before commencement of the BNSS. The filing, numbering or listing of a complaint may be administrative or ministerial. An inquiry requires a positive judicial act, involving application of judicial mind, undertaken by the Court. Cognizance itself is such judicial application; a direction merely to register the complaint and place it for future consideration is not.

Detailed Commentary & Analysis

In 2026 (5) TMI 1236 - Supreme Court, the Court applied these principles to a PMLA complaint filed before the BNSS commenced, where the Special Court had directed registration of the complaint and posted it for cognizance before commencement, but took cognizance after commencement. It held that no inquiry was pending at the earlier point because the Court had not applied its judicial mind to the complaint. The mere administrative act of numbering and listing was not an inquiry within Section 2(1)(k).

The Court therefore held that the cognizance stage was governed by the BNSS. As the accused had not been heard before cognizance, the first proviso to Section 223(1) was violated. The Court held that the proviso is substantive rather than merely procedural because it confers a right that forms part of the fair-trial guarantee under Article 21. The expression "shall" was construed as mandatory. Cognizance taken without compliance was held void ab initio, rather than an irregularity that could be sustained absent proof of prejudice.

This conclusion establishes an important distinction between procedural defects and jurisdictional or foundational illegality. Failure to provide a hearing is not cured by demonstrating that the allegations are serious, that material exists against the accused, or that the accused cannot show actual prejudice. The hearing is a condition precedent to the lawful exercise of cognizance power. The appropriate corrective course is restoration to the cognizance stage, followed by a hearing and a fresh decision in accordance with law.

The holding does not convert pre-cognizance hearing into a trial on merits. The Special Court retains its obligation to examine the complaint and supporting material at the prima facie level. The hearing gives the proposed accused a statutory opportunity to address cognizance; it does not predetermine the result, displace the PMLA's substantive offences, or curtail the Special Court's power to take cognizance where the statutory threshold is met.

Judicial / Administrative Perspective

Authorities on incorporation of the complaint procedure

In 2024 (5) TMI 837 - Supreme Court, the Court held that a complaint under Section 44(1)(b) of the PMLA is governed by Sections 200 to 205 of the CrPC because no inconsistency exists between those provisions and the PMLA. The decision is important beyond process issuance: it confirms that the Special Court does not function outside the ordinary complaint framework merely because it has direct cognizance jurisdiction. It also explains that summons ordinarily secure attendance of an accused not arrested before filing of the complaint, and that such appearance does not by itself amount to custody.

In 2024 (5) TMI 468 - Supreme Court, the Court held that Sections 200 to 204 of the CrPC apply once an authorised complaint under Section 44(1)(b) is filed. The Special Court must apply its mind to whether the complaint discloses a prima facie offence under Section 3. If it does not, the Court must exercise the power to dismiss the complaint; if it does, process may issue. This authority supplies the functional rationale for applying the complaint chapter: direct cognizance does not dispense with judicial scrutiny.

In 2025 (5) TMI 2001 - Supreme Court, the Court specifically connected the CrPC position to the BNSS. It held that, because PMLA complaints are governed by the CrPC complaint provisions, the corresponding BNSS provisions in Chapter XVI apply to a Section 44 PMLA complaint when the BNSS governs the complaint. It further held that the first proviso to Section 223(1) places an embargo upon cognizance without hearing the accused. The cognizance order was set aside solely for breach of that requirement.

Inconsistency remains the controlling limit

In 2024 (11) TMI 296 - Supreme Court, the Court held that Section 197(1) of the CrPC applied to a Section 44(1)(b) PMLA complaint because no PMLA provision was inconsistent with the sanction requirement. The Court reasoned that Section 71 cannot be deployed to nullify provisions expressly made applicable by Section 65. This supplies broader doctrinal support for the approach to Section 223: an incorporated criminal-procedure protection remains operative unless the PMLA expressly or necessarily excludes it.

In 2024 (9) TMI 508 - Supreme Court, the Court reached a different result in relation to summons issued during inquiry under Section 50 of the PMLA. It held that the special PMLA inquiry and summons regime displaced inconsistent CrPC provisions governing police investigation. That decision does not undermine the application of Section 223 to a PMLA prosecution complaint. Rather, it demonstrates the governing distinction: where the PMLA creates a specific and incompatible procedure, it prevails; where there is no inconsistency at the complaint-and-cognizance stage, the BNSS complaint procedure applies.

In 2024 (3) TMI 926 - KARNATAKA HIGH COURT, the Court held that an authorised PMLA complaint need not undergo an inquiry under Section 202 of the CrPC before process is issued. That proposition concerns postponement of process and a distinct statutory setting; it cannot be expanded into an exemption from the later statutory mandate of a hearing before cognizance under the first proviso to Section 223(1). The distinction between a provision not applicable owing to its own conditions and a mandatory hearing condition is material.

Application of the pre-cognizance safeguard

In 2026 (7) TMI 1852 - BOMBAY HIGH COURT, cognizance of a PMLA complaint taken without hearing the proposed accused was held unsustainable. The Court treated non-hearing as an illegality that vitiates the cognizance order rather than a curable defect requiring proof of prejudice. The matter was restored to the Special Court for reconsideration from the cognizance stage.

In 2026 (6) TMI 1014 - KERALA HIGH COURT, the same principle was applied to corporate accused in PMLA proceedings. The statutory protection was held not to be confined to natural persons. Failure to give the requisite opportunity before cognizance and issuance of process vitiated the summons, leaving the Special Court free to reconsider the matter after hearing the affected parties.

Comparable application outside the PMLA reinforces the character of Section 223 as a cognizance-stage safeguard. In 2026 (6) TMI 508 - MADRAS HIGH COURT, the Court held that where cognizance occurred after the BNSS commenced, earlier investigation and sanction did not preserve the prior CrPC procedure. In 2026 (9) TMI 633 - PUNJAB AND HARYANA HIGH COURT, recording pre-charge evidence without a formal cognizance or summoning order and without Section 223 compliance was held impermissible. These decisions are consistent with the proposition that cognizance is a distinct judicial stage requiring the statutory procedure then applicable.

No administrative circular, notification or instruction concerning implementation of the Section 223 hearing requirement is stated in the material. The operative guidance is therefore judicial and statutory: the Special Court must structure its cognizance process so that the mandated opportunity is meaningful and precedes the cognizance order.

Implications & Observations

• For authorised agencies, a complaint under Section 44(1)(b) should be accompanied by a request for a pre-cognizance hearing where Section 223 applies. The filing should not assume that direct cognizance under Section 44 permits immediate cognizance without notice to the proposed accused.

• For Special Courts, the record should distinguish administrative receipt or registration of a complaint from the judicial exercise of cognizance. The order-sheet should demonstrate that the proposed accused received an opportunity of hearing before cognizance was decided.

• For proposed accused, the hearing is a statutory opportunity to address the legal sufficiency of cognizance. The challenge should be directed to the complaint, the jurisdictional prerequisites and the prima facie material, without treating the hearing as a substitute for trial or charge-stage adjudication.

• In transition cases, the decisive question is not merely when the complaint was lodged. It is whether an appeal, application, trial, inquiry or investigation was actually pending before the BNSS commencement date. A mere listing or registration order does not establish a pending inquiry.

• Where cognizance has already been taken without the required hearing, the consequence identified in the governing decision is restoration to the cognizance stage. In 2026 (5) TMI 1236 - Supreme Court, the Court set aside the cognizance order and directed the Special Court to afford a hearing and complete the exercise within eight weeks.

Concluding Remarks

The PMLA is a special enactment, but its special character does not authorise a general displacement of criminal procedure. Sections 46 and 65 incorporate the CrPC, now the BNSS framework, while Section 71 gives the PMLA priority only to the extent of inconsistency. Section 44(1)(b) removes committal as a precondition for the Special Court; it does not remove the legal safeguards that regulate valid cognizance of an authorised complaint.

The first proviso to Section 223(1) of the BNSS creates a mandatory right to be heard before cognizance. When the BNSS governs the cognizance stage of a PMLA complaint, the Special Court cannot validly take cognizance without complying with that requirement. The hearing requirement is not conditional upon a demonstration of prejudice, and a ministerial act before commencement of the BNSS cannot be elevated into a pending inquiry merely to avoid its application. The resulting position is procedurally exacting but doctrinally coherent: specialised PMLA jurisdiction and the accused's right to fair cognizance coexist unless the PMLA itself prescribes an inconsistent rule.

Full Text:

2026 (5) TMI 1236 - Supreme Court