Exploring the Differences Between Section 223 BNSS and Section 200 CrPC
In this ‘Leading Questions’ article, legal experts Soumen Mohanty and Piyush Kumar Ray delve into the procedural intricacies and implications of pre-cognizance hearings under Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) as they relate to proceedings under the Prevention of Money Laundering Act, 2002 (PMLA). They highlight that while both Section 223 BNSS and Section 200 of the Code of Criminal Procedure (CrPC) deal with the examination of complainants in complaint proceedings, a significant distinction arises from the proviso in Section 223 BNSS. This proviso mandates a pre-cognizance hearing for the accused, which is not a requirement under Section 200 CrPC, where the Magistrate may proceed to issue process under Section 204 CrPC after examining the complainant and witnesses on oath.
The Supreme Court’s ruling in the case of Kushal Kumar Agarwal v. Directorate of Enforcement (2025 SCC OnLine SC 1221) established that the proviso to Section 223 BNSS is applicable to PMLA proceedings initiated after July 1, 2024. Furthermore, in Parvinder Singh v. Directorate of Enforcement (2026 INSC 519), the Court clarified that actions considered ministerial prior to this date do not constitute an ‘inquiry’ under Section 2(1)(k) BNSS. Thus, if cognizance is taken after the BNSS comes into effect, the right to a pre-cognizance hearing remains intact.
The Framework for Complaints and Cognizance Under PMLA
Section 44(1)(b) of the PMLA authorizes the Special Court to take cognizance of money laundering offences under Section 3 only upon receiving a complaint filed by an authorized authority. The existence of a scheduled offence is fundamental to PMLA proceedings, as without it, there can be no ‘proceeds of crime’ as defined under Section 2(1)(u). The Supreme Court’s decision in Yash Tuteja v. Union of India (2024 SCC OnLine SC 533) underscored that complaints under the PMLA fall under Sections 200 to 204 CrPC, and those filed post-July 1, 2024, are governed by Sections 223 to 226 BNSS.
Impact of Section 223 BNSS on Cognizance in PMLA Cases
The introduction of Section 223 BNSS significantly alters how cognizance is taken in PMLA complaints. The mandatory pre-cognizance hearing provides the accused with a right to be heard before cognizance of a complaint is taken, marking a crucial procedural safeguard. This change is not merely superficial; it introduces a necessary checkpoint before prosecution can proceed. As emphasized by the Calcutta High Court in Kaberi Dey v. Sourav Bhattacharjee (2025 SCC OnLine Cal 5928), the hearing should not devolve into an adjudication on the merits or a mini-trial.
Practical Implications for the Accused in PMLA Proceedings
The pre-cognizance hearing under Section 223 BNSS offers substantial practical benefits to the accused, allowing them to contest the cognizance of a complaint before the Special Court. If the accused successfully argues against cognizance, the complaint may be dismissed or returned for reconsideration. Alternatively, the Court may proceed with cognizance and continue legal proceedings. During this hearing, the accused can raise important objections, such as the failure of the complaint to establish an offence, insufficient material evidence, or the existence of a legal bar at the threshold stage. However, the scope of this hearing is limited to determining if the complaint and supporting evidence prima facie establish the elements of an offence under Section 3 of the PMLA and whether cognizance is legally justified.
Applicability of Section 223 BNSS to Supplementary Complaints
The question of whether Section 223(1) BNSS applies to supplementary complaints filed after July 1, 2024, when cognizance in the main complaint was already taken under CrPC without hearing the accused, was addressed by the Madras High Court in G. Ganesan v. Deputy Director, Directorate of Enforcement (2025 SCC OnLine Mad 11885). The Court concluded that the benefits of Section 223(1) BNSS do not extend to supplementary complaints in such circumstances. This decision was supported by Section 531(2)(a) of the BNSS, which allows ongoing investigations under CrPC to continue under its provisions. Similarly, in Rahul Surana v. Enforcement Directorate (2025 SCC OnLine Mad 10009), the Court ruled against a pre-cognizance hearing for supplementary complaints not involving initial cognizance of the main complaint. However, this ruling is currently under appeal at the Supreme Court.
Soumen Mohanty is a Partner and Piyush Kumar Ray is an Associate Partner at AQUILAW.
