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Kushal Kumar Agarwal v. Directorate of Enforcement

Criminal Appeal · 2025 INSC 760Decided 9 May 2025
Crl.A. No.-002749-002749 - 2025 (arising out of SLP(Criminal) No. 2766 of 2025)
Justice Abhay S. Oka · Justice Ujjal Bhuyan

Background

The Directorate of Enforcement filed a money-laundering complaint against the appellant under Section 44(1)(b) of the PMLA in August 2024, after the new BNSS had replaced the old CrPC from 1 July 2024. Unlike the old Section 200 CrPC, the corresponding Section 223 of the BNSS adds a proviso requiring that the accused be given an opportunity of being heard before the Magistrate/Special Court takes cognizance of the offence. In this case, that hearing was admittedly not given before cognizance was taken.

Decision Breakdown

The Supreme Court confirmed that PMLA complaints are governed by the general complaint procedure (Sections 200 onward, now Sections 223 onward of the BNSS), following its own earlier rulings. Since the mandatory pre-cognizance hearing under the new Section 223 proviso was not afforded to the appellant, the Court set aside the order taking cognizance solely on this procedural ground, without expressing any opinion on the merits of the money-laundering allegations. It directed the appellant to appear before the Special Court to be heard, and kept the Enforcement Directorate's other legal arguments open for later.

Lesson Learnt

Under the new BNSS, a person facing a criminal complaint (including under the PMLA) now has a distinct statutory right to be heard before a court formally takes cognizance of the case: a safeguard that did not exist in the same form under the old CrPC.

Official source (sci.gov.in)View Judgment (PDF)

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