CRM-M- IN Sikander Singh Directorate CORAM: Present: TRIBHUVAN Nagarik Suraksha dated 22.11.2024, Prevention Sessions Judge, Section 223 hearing before complaint, set aside order proceeded -29954-2025 IN THE HIGH COURT OF PUNJAB CHANDIGARH Singh Versus Directorate of Enforcement, Gurugram CORAM: HON'BLE MR. JUSTICE TRIBHUVAN Mr. Vikram Chaudhri, Senior (through video conferencing), Ms. Hargun Sandhu, Advocate, Mr. Zoheb Hussain, Special Counsel (through video conferencing), Mr. Lokesh Narang, Senior Panel TRIBHUVAN DAHIYA, J. The petition has been filed under Suraksha Sanhita, 2023 (for short, 22.11.2024, Annexure P-6, whereby Prevention of Money Laundering Act, Judge, Gurugram, dismissed the 223 read with Section 511 of the before taking cognizance of complaint, dated 27.06.2024, filed against order dated 05.12.2024, Annexure proceeded to take cognizance of the offences 1 PUNJAB AND HARYANA AT CHANDIGARH CRM-M-29954-2025 Pronounced on: 29.07.2025 ….Petitioner ….Respondent TRIBHUVAN DAHIYA Senior Advocate conferencing), assisted by Advocate, for the petitioner. Counsel conferencing), assisted by Panel Counsel, for the respondent. under Section 528 of the Bharatiya short, ‘BNSS’), for setting aside order whereby Special Judge [under 2002 (for short, ‘PMLA’)]-cum the petitioner's application filed under the BNSS seeking an opportunity offences alleged in prosecution against him. Prayer has also been made Annexure P-8, whereby the Special Judge offences against the petitioner and respondent. Bharatiya order the cum- under opportunity of prosecution made to Judge and MANINDER 2025.07.29 10:13 I attest to the accuracy and authenticity of this order/judgment. CRM-M- summoned offences under the PMLA Sikander 16.11.2021. 2. ECIR/GNZO/20/2021 offences whereof prosecution was presented Gurugram, Judge, Gurugram, Sessions Judge to the Sessions the Sessions adjourned on a few place, as apparent 2.1. 01.07.2024. been provided Accordingly, the Special cognizance -29954-2025 summoned him along with other accused under Section 3 read with Sectio PMLA in case COMA-9-2024 titled Singh and others arising out 16.11.2021. As per facts apparent on ECIR/GNZO/20/2021 dated 16.11.2021, under the PMLA was registered the petitioner was arrested in prosecution complaint in the matter under presented before the Additional Gurugram, on 27.06.2024. As it was required Gurugram, being the Special Judge Judge directed to check and register Sessions Judge immediately for 04.07.2024. Sessions Judge/Special Judge on 31.07.2024, adjourned to 14.08.2024 for consideration. more dates for one reason or another apparent from the short orders placed In the meanwhile, the BNSS 01.07.2024. In terms of proviso to Section provided to the accused at the time Accordingly, the petitioner moved an application Special Judge seeking an opportunity cognizance of the complaint dated 27.06.2024. 2 accused to face trial for commission Section 70 punishable under Section 4 titled Directorate of Enforcement of ECIR/GNZO/20/ 2021, dated on record, in brief, an enquiry, 16.11.2021, pertaining to the aforementioned registered by the respondent, pursuant in the case on 30.04.2024. The under Sections 44 and 45 of the PMLA Sessions Judge/Vacation Judge, required to be heard by the Sessions Judge under the PMLA, the Additional register the complaint, and sent the 04.07.2024. The case was taken up 31.07.2024, but was not heard and consideration. Thereafter also, it was adjourned another and hearing could not take placed on record as Annexure P-4. BNSS came into force with effect from Section 223 thereof, a right of hearing time of taking cognizance of offence. application under Section 223 before opportunity of hearing before taking 27.06.2024. commission of 4 of Enforcement v. dated enquiry, aforementioned pursuant The PMLA Judge, Sessions Additional file up by and adjourned take 4. from has offence. before taking MANINDER 2025.07.29 10:13 I attest to the accuracy and authenticity of this order/judgment. CRM-M- 2.2. dismissed the prosecution force of the Procedure, provide any Thereafter, case proceeded accused/petitioner 3. senior coun jurisdiction petitioner before taking proviso to patently wrong 27.06.2024, construed applied at purely administrative Court for an ‘inquiry’ provision case was the petitioner taking cognizance. -29954-2025 The Special Judge heard arguments dismissed the same vide impugned order prosecution complaint was filed on 27.06.2024, the BNSS and, accordingly, provisions Procedure, 1973 (for short, ‘Cr.P.C.’) any right of hearing to the accused Thereafter, the Special Judge heard the complaint proceeded to take cognizance accused/petitioner vide impugned order dated In this background, the solitary counsel for the petitioner is that jurisdiction being violative of proviso to petitioner has not been afforded an opportunity taking cognizance of the offences to Section 223 has to be complied wrong in holding that the prosecution 27.06.2024, as mere presentation of the construed as filing of the complaint. Judicial at that time; it was presented and administrative functions of forwarding 04.07.2024. Therefore, it cannot ‘inquiry’ under Section 2(g) of the Cr.P.C., Section 531 of the BNSS. The after coming into force of the BNSS, petitioner was required to be given cognizance. In support of the submissions, 3 arguments on the application, and dated 22.11.2024. It was held that 27.06.2024, i.e., before coming into provisions of the Code of Criminal will be applicable which do accused at the time of taking cognizance. complaint and finding a prima facie of the offences against dated 05.12.2024. solitary submission made by learned that the impugned order is without to Section 223 of the BNSS as opportunity of hearing in terms thereof offences against him. The mandate complied with. The Special Court has gone prosecution complaint was filed complaint on that date cannot Judicial mind of the Court was and kept pending only for performing forwarding the case file to the Special cannot be considered commencement Cr.P.C., protected under the repealing judicial application of mind to BNSS, i.e., 05.12.2024, accordingly, an opportunity of hearing before submissions, learned senior counsel and that into Criminal not cognizance. facie the learned without the thereof of gone on cannot be not performing Special commencement of repealing the accordingly, before has MANINDER 2025.07.29 10:13 I attest to the accuracy and authenticity of this order/judgment. CRM-M- placed reliance in Criminal Directorate appellant/complainant cognizance Directorate the time cogniz Court directed to Section 4. that ECIR Therefore, be pending will not apply. Court. Accordingly, becomes the on 27.06.2024, not give contended afford a hearing on 02.08.2024 complaint apply to the 5. considered. -29954-2025 reliance upon order, dated 09.05.2025, Criminal Appeal No.2749 of 2025 Directorate of Enforcement. In that matter appellant/complainant on 24.04.2014, and cognizance against him on 20.11.2024 Directorate of Enforcement under Section cognizance was taken the BNSS directed the trial Court to afford hearing ection 223 of the BNSS. Learned counsel for the respondent, ECIR is not an FIR, as it is an internal Therefore, by registration of ECIR no inquiry pending against the accused in a Court, apply. It applies when the prosecution Accordingly, the date of filing the the terminal date, and in the instan 27.06.2024, when provisions of the Cr.P.C. any right of hearing to the contended that in Kushal Kumar Agarwal hearing only because the complaint 02.08.2024, i.e., after coming into force complaint has been filed after 1st July, 2024, the present complaint.’ Submissions made by learned considered. 4 09.05.2025, passed by the Supreme Court titled Kushal Kumar Agarwal matter ECIR was registered against and the Special Judge (PC Act) took 024, in a complaint filed by Section 44(1)(b) of the PMLA. Since BNSS had been enforced, the Supreme hearing to the appellant under proviso respondent, on the contrary, contends internal document of the Directorate. inquiry or proceedings can be said Court, and Section 2(g) of the Cr.P.C. prosecution complaint is forwarded to the complaint against the accused instant case, undisputedly, it was filed Cr.P.C. were applicable which would petitioner/accused. He has also arwal case ibid, direction was issued complaint under the PMLA had been filed force of the BNSS. It held, ‘…As 2024, Section 223 of the BNSS will learned counsel for the parties have been Court Agarwal v. the took the Since by Supreme proviso contends Directorate. said to Cr.P.C. the accused filed would also issued to filed the will been MANINDER 2025.07.29 10:13 I attest to the accuracy and authenticity of this order/judgment. CRM-M- 6. petitioner BNSS before order dated 7. 531(2) of Apparently, inquiry or enforcement made in accordance 7.1. Enforcement Sections 200 -29954-2025 The only issue arising for petitioner was entitled to hearing in terms before taking cognizance of the offe dated 05.12.2024. To address the issue, a reference of the BNSS, which reads as under: 531. Repeal and savings.— (2) Notwithstanding such repeal (a) if, immediately before comes into force, there is any or investigation pending, then, inquiry or investigation shall made, as the case may be, in the Code of Criminal Procedure, immediately before such commencement to as the said Code), as if this (b) and (c) xxx xxx ently, the savings clause provides in or investigation is pending immediately enforcement of the BNSS, the same shall accordance with the provisions of It is no longer res integra Enforcement Directorate under the PMLA 200 to 204 Cr.P.C. Sections 200 and 200. Examination of complainant cognizance of an offence on the complainant and the witnesses substance of such examination shall be signed by the complainant by the Magistrate: 5 for consideration is, whether terms of proviso to Section 223 of offences against him vide impugned reference needs to be made to Section under: —(1) xxx xxx repeal— before the date on which this Sanhita any appeal, application, trial, inquiry then, such appeal, application, trial, shall be disposed of, continued, held in accordance with the provisions Procedure, 1973 (2 of 1974), as in force commencement (hereinafter referred this Sanhita had not come into force; xxx in case any appeal, application, trial, immediately before the date shall be disposed of, continued, held of the Cr.P.C. integra that a complaint filed by PMLA is governed by the provisions and 202 read as under: complainant.—(1) A Magistrate taking complaint shall examine upon oath witnesses present, if any, and examination shall be reduced to writing and complainant and the witnesses, and also the of the impugned Section Sanhita inquiry trial, held or provisions of force referred force; trial, of held or the provisions of taking oath the and also MANINDER 2025.07.29 10:13 I attest to the accuracy and authenticity of this order/judgment. CRM-M- Section 2(g) -29954-2025 Provided that, when the Magistrate need not examine witnesses— (a) if a public servant discharge of his official duties complaint; or (b) if the Magistrate makes trial to another Magistrate under Provided further that case to another Magistrate under the complainant and the witnesses, not re-examine them. 202. Postponement of issue on receipt of a complaint authorised to take cognizance him under section 192, may, where the accused is residing which he exercises his jurisdiction against the accused, and either direct an investigation to be made other person as he thinks whether or not there is sufficient Provided that no such made— (a) where it appears to complained of is triable Sessions; or (b) where the complaint unless the complainant have been examined on (2) and (3) xxx xxx 2(g) of the Cr.P.C. defines ‘inquiry’ 2. Definitions.—In this Code, requires,— 6 the complaint is made in writing, examine the complainant and servant acting or purporting to act in duties or a Court has made makes over the case for inquiry under Section 192: if the Magistrate makes over under Section 192 after examining witnesses, the latter Magistrate need issue of process.—(1) Any Magistrate, complaint of an offence of which he cognizance or which has been made over if he thinks fit, and shall, in a case residing at a place beyond the area jurisdiction postpone the issue of process either inquire into the case himself made by a police officer or by such fit, for the purpose of deciding sufficient ground for proceeding: direction for investigation shall to the Magistrate that the offence triable exclusively by the Court complaint has not been made by a Court, complainant and the witnesses present (if any) on oath under section 200. xxx ‘inquiry’ which reads as under: Code, unless the context otherwise the the the the inquiry or the examining need Magistrate, he is over to case area in process himself or such deciding hall be offence of Court, any) otherwise MANINDER 2025.07.29 10:13 I attest to the accuracy and authenticity of this order/judgment. CRM-M- As apparent, cognizance present. Under process and investigation the accuse postponed be. The word than a trial 7.2. jurisdiction affording -29954-2025 (a) to (f) xxx xxx (g) “inquiry” means every conducted under this Code by apparent, under Section 200 Cr.P.C., cognizance of an offence on examining Under Section 202 Cr.P.C., the Magistrate and inquire into the complaint of investigation by a police officer or any other accused resides beyond his jurisdiction, postponed mandatorily to hold the inquiry word ‘inquiry’, under Section 2(g) trial conducted under the Code by a The new enactment, BNSS, jurisdiction to the Magistrate to take cognizance an opportunity of hearing to the 223. Examination of complainant jurisdiction while taking cognizance shall examine upon oath the present, if any, and the substance reduced to writing and shall the witnesses, and also by the Provided that no cognizance by the Magistrate without giving being heard: Provided further that writing, the Magistrate need the witnesses— (a) if a public servant discharge of his official duties complaint; or 7 every inquiry, other than a trial, by a Magistrate or Court; a Magistrate is empowered to take the complainant and the witnesses Magistrate may postpone the issue an offence triable by him, or direct other person, as he thinks fit. In case jurisdiction, the issue of process has to inquiry or investigation, as the case may 2(g) Cr.P.C. refers to an inquiry other a Magistrate or Court. , has Section 223 which provides cognizance of an offence, but only after accused; it reads as under: complainant.—(1) A Magistrate having cognizance of an offence on complaint the complainant and the witnesses substance of such examination shall be signed by the complainant and the Magistrate: cognizance of an offence shall be taken giving the accused an opportunity when the complaint is made need not examine the complainant and servant acting or purporting to act in duties or a Court has made trial, take witnesses issue of direct case to be may other provides after having complaint witnesses shall be and taken opportunity of made in and the the MANINDER 2025.07.29 10:13 I attest to the accuracy and authenticity of this order/judgment. CRM-M- 7.3. complaint to check Court/Special hearing before cognizance ascertained commencement means an the Code. receipt of can inquire Therefore, competence triable by inquiry without to test veracity the process mind to the Cr.P.C., an -29954-2025 (b) if the Magistrate makes trial to another Magistrate under Provided also that case to another Magistrate examining the complainant Magistrate need not re- (2) xxx xxx In the instant case, the respondent complaint before the Additional Sessions and register the same, and Special Judge for 04.07.2024. Although before the Special Judge on 31.07.2024, cognizance of offences were not advanced. ascertained as to whether presentation/filing ommencement of inquiry into it. In terms inquiry other than trial conducted Code. Section 202 Cr.P.C. further of a complaint of an offence he is nquire into the case himself or order Therefore, the pre-requisite to such competence to take cognizance of the offence by the Magistrate, he is precluded without doubt requires taking evidence veracity of the allegations to find out process. Resultantly, except when the the complaint in the manner stipulat an inquiry cannot be said to have 8 makes over the case for inquiry under Section 212: that if the Magistrate makes over Magistrate under Section 212 after complainant and the witnesses, the latter -examine them. respondent presented the prosecution Judge on 27.06.2024, who ordered sent the file to the competent Although the matter was listed 31.07.2024, the arguments for taking advanced. It therefore needs to presentation/filing of the complaint amounts terms of Section 2(g) Cr.P.C., ‘inquiry’ conducted by a Magistrate or Court under provides that any Magistrate, is authorised to take cognizance order investigation by a Police officer. an inquiry is the Magistrate’s offence alleged. Unless the offence precluded from inquiring into it. Such evidence on oath and/or applying mind out prima facie grounds for issuing the Magistrate has applied judicial stipulated under Sections 202 to 204 have commenced or pending before inquiry or the after latter prosecution ordered competent for taking be amounts to ‘inquiry’ under on of, officer. Magistrate’s offence is an mind issuing judicial 204 before MANINDER 2025.07.29 10:13 I attest to the accuracy and authenticity of this order/judgment. CRM-M- him/her. M sent to the application administrative to know application fall within filing of Sessions Judge as to make Additional offences complaint/allegations. Special Judge dated 05.12.2024. 8. Section 223 construction accused before provided and Section which has an opportunity offence has Legislature sought to -29954-2025 Mere filing/presentation of a complaint the competent Court for taking application of judicial mind. In such cases, administrative act of sending the case file that the offences are not triable application of judicial mind to the allegations within the ambit of inquiry under Section prosecution complaint by the Judge on 27.06.2024 would not make provisions of the Cr.P.C. applicable Additional Sessions Judge was competent under the PMLA, nor did complaint/allegations. And cognizance of Judge after coming into force of 05.12.2024. There is another aspect of 223 BNSS needs to be considered construction’ of a statute. The provision before issuing of process against under Section 200 Cr.P.C. The two Section 223 BNSS, are pari materia has created a new procedure for taking opportunity of hearing to the accused has serious repercussions for the Legislature deemed it appropriate to provide be summoned. The right of hearing 9 complaint, or its registration for being taking cognizance, would not require cases, Magistrate only performs file to the competent Court on coming triable by him/her. This is not allegations in the complaint and will Section 2(g) Cr.P.C. Consequently, respondent before the Additional attract Section 531(2)(a) BNSS applicable to it, because neither competent to take cognizance of the alleged he apply judicial mind to of the offences was taken by of the BNSS, vide impugned order the matter, and the provision considered in the light of ‘rule of benefici provides a right of hearing to against him by the Court, which is two provisions, Section 200 Cr.P.C. materia except the first proviso to latter taking cognizance only after giving accused. Issuing process of a criminal accused, and that is the reason provide prior hearing to the person hearing is one of the most cherished being require the coming an not the Additional BNSS so the alleged the the order provision of cial the not Cr.P.C. latter giving criminal the person cherished MANINDER 2025.07.29 10:13 I attest to the accuracy and authenticity of this order/judgment. CRM-M- rights in Natural Justice Articles 14 reason why coming into technically interests of cases by provisions cognizance and only extent of providing 8.1. laws to the another, (1983) whether the (Amendment) Act [Prevention Amendment) account of 7 of the inserted in for a varie The accused adulterated, Applying -29954-2025 the criminal jurisprudence, and Justice permeating to the Constitutional 14 and 21 guaranteeing the right why the benefit of hearing should into force of the BNSS, even if technically filed before coming into force of justice and fair trial require applying the rule of beneficial provisions of Section 200 Cr.P.C. and cognizance of offence on a complaint, are the procedure of taking cognizance providing prior hearing to the accused The Courts have applied the the accused. A case in point is (1983) 1 SCC 177, wherein the Supreme the Central Amendment Act [Prevention (Amendment) Act, 1976] will impliedly repeal [Prevention of Adulteration of Food, Drugs Amendment) Act, 1973], which provided of commission of offence under Act. By way of the Central Amendment in the original Act which came into varied procedure of trial and lesser accused therein was on trial as his adulterated, and the complaint had been the rule of beneficial construction 10 and is embedded in the Principles onstitutional scheme of things, especially right to fair trial. Therefore, there is not be afforded to the accused after if complaint against him has been force of the BNSS on 01.07.2024. The the right should be given in such beneficial construction of statute, as and 223 BNSS, meant for taking are not in contravention of each other cognizance has been varied to the limited accused. rule to give benefit of ex-post facto is T. Barai v. Henry AH HOE and Supreme Court considered the is [Prevention of Food Adulteration repeal the West Bengal Amendment Drugs and Cosmetics (West Bengal provided for imprisonment for life Section 16(1)(a) read with Section Amendment Act, Section 16-A was into force on 01.04.1976, providing lesser punishment for the said offence his food sample was found to lodged against him on 24.09.1975. construction of statute, it was held that Principles of especially is no after been The such the taking other limited facto and issue Adulteration Amendment Bengal on Section was providing offence. be 24.09.1975. the MANINDER 2025.07.29 10:13 I attest to the accuracy and authenticity of this order/judgment. CRM-M- accused would rule requires the earlier as under: -29954-2025 would be entitled to the benefit requires that even an ex-post facto law earlier law, should be applied to mitigate 22. It is only retroactive criminal under Article 20(1). The prohibition is that no person shall be convicted violation of a law in force at act charged as an offence prohibits penalty greater than that which the law in force at the time of is quite clear that insofar as the new offences or enhances punishment offence no person can be convicted nor can the enhanced punishment be applicable. But insofar reduces the punishment for an 16(1)(a) of the Act, there is not have the benefit of such reduced 23. To illustrate, if Parliament the Indian Penal Code, 1860 for an offence of murder shall life instead of the present sentence life, then it cannot be that sentence of death even in pending 24. In Rattan Lal v. State of consideration was whether an benefit of Probation of Offenders into force after the accused offence. The Court by majority the affirmative. Subba Rao, J. concluded that in considering construction required that even 11 benefit of such reduced punishment. The law which is not in contravention mitigate the rigor of the law. It was held criminal legislation that is prohibited prohibition contained in Article 20(1) convicted of any offence except at the time of the commission of prohibits nor shall he be subjected to which might have been inflicted under of the commission of the offence. the Central Amendment Act creates punishment for a particular type convicted by such ex post facto law punishment prescribed by the amendment as the Central Amendment Act an offence punishable under Section no reason why the accused should reduced punishment. … arliament were to reenact Section 302 1860 and provide that the punishment shall be sentence for imprisonment sentence of death or imprisonment hat the courts would still award pending cases. of Punjab, the question that fell an appellate court can extend Offenders Act, 1958 which had come had been convicted of a criminal majority of 2:1 answered the question J. who delivered a majority opinion, considering the question, the rule of beneficial even ex post facto law of the type The contravention of held prohibited 20(1) for the to a under ence. It creates type of law amendment Act Section should 302 of punishment for for award a for the come criminal question in opinion, icial type MANINDER 2025.07.29 10:13 I attest to the accuracy and authenticity of this order/judgment. CRM-M- 8.2. reduced punishment unamended made applicable varied procedure cognizance the petitioner 9. 05.12.2024, pass a fresh in terms of weeks of 10. 29.07.2025 Maninder -29954-2025 involved in that case should punishment. 25. xxx xxx 26. In the premises, the Central with the same offence as the 16(1) (a) and provided for a must have the benefit of the reduced When an ex-post facto law can punishment to a person accused of unamended statute by invoking the rule of applicable to the instant case as well. procedure of giving prior hearing cognizance will apply to the prosecution petitioner right of hearing in terms of Section In view thereof, the impugned 05.12.2024, are set aside directing the Special fresh order after affording an opportunity of first proviso to Section 223(1) receiving a certified copy of this Petition stands allowed in the 29.07.2025 Whether speaking/reasoned Whether reportable 12 should be applied to reduce Central Amendment Act having dealt the one punishable under Section a reduced punishment, the accused reduced punishment. … can be applied to give the benefit of committing an offence under of beneficial construction, it can well. It is accordingly held that hearing to the accused before taking complaint in question, which gives Section 223 BNSS. impugned orders, dated 22.11.2024 and Special Judge under the PMLA opportunity of hearing to the petitioner 223(1) BNSS, within a period of eight this order. the aforesaid terms. (TRIBHUVAN DAHIYA) JUDGE : Yes/No : Yes/No the dealt Section accused benefit of the can be the taking gives and PMLA to petitioner eight DAHIYA) MANINDER 2025.07.29 10:13 I attest to the accuracy and authenticity of this order/judgment.