SC Issues Notice on Applicability of Section 223 BNSS to Pre-Enactment Complaints Where Cognizance Is Post-Enactment

The Supreme Court of India has issued notice on a special leave petition that raises a significant legal question concerning the retrospective applicability of Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

The petition questions whether the proviso to Section 223(1) BNSS, which mandates that an accused must be given an opportunity to be heard before cognizance is taken, applies to complaints filed before July 1, 2024, but where cognizance was taken after that date.

Background

The BNSS came into force on July 1, 2024, replacing the Code of Criminal Procedure (CrPC), 1973. The proviso to Section 223(1) introduces a new procedural safeguard not present in the CrPC. The issue arose from a prosecution complaint filed by the Enforcement Directorate (ED) on June 26, 2024, before the BNSS came into effect. However, the Special Court took cognizance on July 2, 2024. The accused, Parvinder Singh, challenged the cognizance order, arguing it was illegal as it did not comply with Section 223 of the BNSS.

High Court’s View

The Uttarakhand High Court had rejected the challenge, holding that since the complaint was filed before the BNSS came into effect, Section 223 BNSS was not applicable. The High Court relied on Section 531 of the BNSS, which provides that any appeal, application, trial, inquiry, or investigation pending before July 1, 2024, shall continue to be governed by the CrPC.

Petitioner’s Arguments

The petitioner challenged this reasoning, contending that no proceeding was pending before July 1, 2024, as cognizance was taken only on July 2, 2024. Mere filing or presentation of the complaint before the Special Judge does not amount to an "inquiry" under Section 2(g) CrPC. An inquiry is said to commence only when the court applies its judicial mind and takes cognizance. It was further contended that although the ED submitted the complaint on June 24, 2024, it was formally filed before the court only on July 2, 2024, which should trigger the application of BNSS.

Supreme Court’s Response

A bench of Justice M.M. Sundresh and Justice N.K. Singh issued notice to the Enforcement Directorate and stated that all further proceedings shall remain subject to the outcome of the petition. The Court noted the importance of the legal question and its implications on procedural safeguards under the newly enacted BNSS.

Related Precedent

The petitioner also referred to the Supreme Court’s recent decision in Kushal Kumar Agarwal v. Directorate of Enforcement, wherein it was held that before taking cognizance of a money laundering complaint under Section 44(1)(b) of the PMLA, the court must give an opportunity to the accused to be heard under Section 223(1) BNSS.

However, that judgment did not clarify whether this procedural right applies to complaints filed before July 1, 2024, but where cognizance is taken post-BNSS. The case is expected to clarify how transitional provisions under Section 531 BNSS will be interpreted by courts, particularly regarding when a proceeding is considered "pending" and what triggers the application of new procedural safeguards under BNSS. The decision will have a significant impact on pending and future cases during this transitional phase.

Case Title : Parvinder Singh v. Directorate of Enforcement