Kolkata: The Calcutta High Court has quashed a Special Court’s cognisance order in a money laundering case, ruling that it violated the Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023, by not affording the accused an opportunity of hearing before taking cognizance.
The court stressed that even under the Prevention of Money-Laundering Act (PMLA), this new safeguard in the BNSS cannot be bypassed.
Justice Sabyasachi Bhattacharyya held that the February 15 order taking cognisance of a complaint filed by the Enforcement Directorate (ED) was “patently vitiated” and a “nullity in the eye of law.” All consequential proceedings were also quashed.
The case stemmed from an ED complaint filed under Sections 3 and 4 of the PMLA, based on an investigation initiated in March 2023. The accused, four individuals, argued that the Special Court had taken cognisance without complying with the first provision to Section 223(1) of the BNSS, which mandates a pre-cognisance hearing for the accused. The High Court held that this provision is not a mere procedural formality but a substantive right tied to Article 21 of the Constitution.
“The personal liberty of a person cannot be curtailed or deprived except according to the procedure established by law, which in the present case includes giving the accused an opportunity of being heard,” the judge observed.
Rejecting the ED’s argument that the PMLA is a special law and its procedures override BNSS provisions, the court observed: “There is no provision in the PMLA which overrides the said provisions of the Cr.P.C., and hence, the Special Court has to apply its mind... The provisions of the BNSS shall be applicable to such procedure.”
The court clarified that complaints under the PMLA are not equivalent to police chargesheets and must be treated as “complaints” under the BNSS. It concluded that the failure to provide a pre-cognisance hearing was fatal and amounted to a violation of statutory and constitutional safeguards. Urgent certified copies were directed to be issued upon compliance with formalities.