LexKUSHAL KUMAR AGARWAL versus DIRECTORATE OF ENFORCEMENT
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[2025] 5 S.C.R. 730 : 2025 INSC 760 Kushal Kumar Agarwal v. Directorate of Enforcement (Criminal Appeal No. 2749 of 2025) 09 May 2025 [Abhay S. Oka* and Ujjal Bhuyan, JJ.] Issue for Consideration An opportunity of being heard was not given by the Special Judge to the appellant-accused before taking cognizance of the offence on the complaint. Whether opportunity of being heard is required in terms of the proviso to sub-section (1) of s.223 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Headnotes† Bharatiya Nagarik Suraksha Sanhita, 2023 – Proviso to sub-section (1) of s.223 – Prevention of Money Laundering Act, 2002 – s.44(1)(b) – Examination of complaint u/s. 223 BNSS – Opportunity of being heard to the accused – In this case, admittedly, an opportunity of being heard was not given by the Special Judge to the appellant-accused before taking cognizance of the offence on the complaint – Correctness: Held: The proviso to sub-section (1) of s.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 – The impugned order dated 20.11.2024, is set aside only on the ground of non-compliance with the proviso to sub-section (1) of s.223 of the BNSS – Therefore, appellant is directed to appear before the Special Court, so that he can be given an opportunity of being heard in terms of the proviso to sub-section (1) of s.223 of the BNSS. [Paras 6, 10, 12] Case Law Cited Yash Tuteja v. Union of India and Others [2024] 4 SCR 591 : 2024 SCC OnLine Sc 533; Tarsem Lal v. Enforcement Directorate [2024] 6 SCR 864 : (2024) 7 SCC 61 – referred to. * Author [2025] 5 S.C.R. 731 Kushal Kumar Agarwal v. Directorate of Enforcement List of Acts Bharatiya Nagarik Suraksha Sanhita, 2023; Prevention of Money Laundering Act, 2002. List of Keywords Proviso to sub-section (1) of s.223 of Bhartiya Nagarik Suraksha Sanhita, 2023; Examination of complaint; Opportunity of being heard to the accused. Case Arising From CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2749 of 2025 From the Judgment and Order dated 20.11.2024 of the Special Judge (PC Act) (CBI) (Coal Block Cases) -01, Rouse Avenue District Court, New Delhi in Crl. Case No. 1 of 2024 Appearances for Parties Advs. for the Appellant: Vijay Aggarwal, Nagesh Behl, Animesh Rajoriya, Ms. Barkha Rastogi, Rhythm Aggarwal, Vishal Gaurav, Somesh Chandra Jha, Shekhar Pathak, Saurabh Nagar, Ashish Arya. Advs. for the Respondent: Suryaprakash V. Raju, A.S.G., Annam Venkatesh, Zoheb Hussain, Samrat Goswami, Arvind Kumar Sharma, Ms. Aditi Singh, Ms. Anushka Gupta, Anand Kirti, Ms. Vismaya Bansal, Ms. Geeta Bajaj, Rajesh Batra, Ms. Sonia Kukreja, Prabhas Bajaj, Ansh Singh Luthra, Gurpreet Singh Parwanda, Hemant Shah, Harshit Sethi, Pallav Srivastav, Ms. Mansi Tripathi, Kartik Yadav, Sahil Sharma. Judgment / Order of the Supreme Court Order Abahy S Oka, J. 1. Leave granted. 2. Heard the learned counsel appearing for the appellant and the learned Additional Solicitor General appearing for the respondent. 732 [2025] 5 S.C.R. Supreme Court Reports 3. 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. (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 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
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