Kushal Kumar Agarwal vs Directorate Of Enforcement

2025 INSC 760 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2749 OF 2025 (Arising out of S.L.P.(Criminal) No.2766 of 2025)

KUSHAL KUMAR AGARWAL ... APPELLANT(S)

VS.

DIRECTORATE OF ENFORCEMENT ... RESPONDENT(S)

ORDER

ABAHY S OKA,J

Leave granted.

Heard the learned counsel appearing for the

appellant and the learned Additional Solicitor General

appearing for the respondent.

In the present case, a complaint was filed under

Section 44(1)(b) of the Prevention of Money Laundering

Act, 2002 (hereinafter referred to as "the PMLA") on

August 2, 2024. The appellant is shown as accused in the

complaint. The Bhartiya Nagarik Suraksha Sanhita, 2023

(hereinafter referred to as "the BNSS") came into force

on July 1, 2024. Section 223 of the BNSS reads thus:

“223. Examination of complainant.

Signature Not Verified (1)A Magistrate having jurisdiction while Digitally signed by ANITA MALHOTRA Date: 2025.05.26 taking cognizance of an offence on complaint 11:12:38 IST

shall examine upon oath the complainant and the Reason:

witnesses present, if any, and the substance of

1 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 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 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.”

Section 223 of the BNSS corresponds to Section 200

of the Code of Criminal Procedure, 1973 (hereinafter

referred to as ‘the CrPC’). However, a proviso similar

to the proviso to sub-section (1) of Section 223 does not

find place in Section 200 of the CrPC.

This Court has taken a consistent view that a

complaint filed by the Enforcement Directorate under

Section 44 (1)(b) of the PMLA will be governed by

Sections 200 to 204 of the CrPC. This view has been taken

by this Court in the cases of Yash Tuteja v/s Union of

2 India and others1 and Tarsem Lal v/s Enforcement

Directorate2. Therefore, the provisions of Chapter XVI,

containing Sections 223 to 226, will also apply to a

complaint under Section 44 of the PMLA. As the complaint

has been filed after 1st July, 2024, Section 223 of the

BNSS will apply to the present complaint.

The proviso to sub-section (1) 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.

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.

Mr. Raju, the learned Additional Solicitor General,

has made two submissions. Firstly, he submits that

hearing given to the accused in terms of the proviso to

sub-section (1) of Section 223 of the BNSS will be

confined to the question whether a case is made out to

proceed on the basis of the complaint and hence, only the

complaint and the documents produced along with the

complaint can be considered at the time of hearing. His

1 2024 SCC OnLine Sc 533 2 (2024)7SCC 61

3 second submission is that it is well settled that

cognizance is taken by the criminal Court of the offence

and not the offender. Therefore, after taking cognizance

and after following the procedure prescribed by proviso

to sub-section (1) of Section 223 of the BNSS if

cognizance is taken, there will be no occasion to again

take cognizance of the same offence when supplementary or

further complaints are filed. Therefore, at that stage,

there will be no occasion to give the accused the

opportunity to be heard.

The aforesaid two submissions made by Mr. Raju, the

learned Additional Solicitor General, need not be

considered, as the same do not arise in this appeal at

this stage. However, we make it clear that the said

contentions are expressly kept open, which can be raised

before the Special Court.

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.

We make it clear that we have not expressed any

opinion on the merits of the complaint and the aforesaid

contentions raised by the learned Additional Solicitor

General.

4 We direct the appellant to appear before the Special

Court on 14th July, 2025, so that he can be given an

opportunity of being heard in terms of the proviso to

sub-section (1) of Section 223 of the BNSS. We make it

clear that no further notice shall be issued by the

Special Court to the appellant.

The appeal is accordingly partly allowed.

..........................J. (ABHAY S.OKA)

..........................J. (UJJAL BHUYAN)

NEW DELHI;

May 09, 2025

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