Order taking cognizance of offences under PMLA invalid in absence of pre-cognizance opportunity of hearing: Calcutta HC [Read Order]

Tutu Ghosh, the petitioner challenged an order whereby the Chief Judge, City Sessions Court at Calcutta, acting in the capacity of Special Court under the Prevention of Money-Laundering Act, 2002 (“the PMLA”) taking cognizance of offences under Sections 3 and 4, read with Section 70 of the PMLA against each of the petitioners. The petitioners further seek quashing of the proceedings initiated in connection with the complaint, being the ECIR/KLZO-I/10/2023 dated March 24, 2023.

Senior counsel appearing on behalf of the petitioners contended that the Special Judge took cognizance in violation of the First Proviso to Section 223 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (“the BNSS”) since no opportunity of hearing was given to any of the petitioners/accused persons prior to taking such cognizance. Senior counsel contended that the provision of affording an opportunity of hearing to the accused prior to taking cognizance has been introduced in the new regime of criminal laws after the introduction of the BNSS and was absent in its predecessor-statute, the Code of Criminal Procedure (Cr.P.C.).

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It is argued that the said provision is mandatory and any contravention of the same leads to curbing the fundamental right to life and personal liberty, guaranteed under Article 21 of the Constitution of India, of the accused.

It is argued that the Supreme Court, in the various judgments cited above, has proceeded on the premise that a complaint by the ED under the PMLA is to be treated as a “complaint” and the provisions of Section 223 of the BNSS and its first proviso apply.

The “procedure established in law” concerned in the present case is the power of the jurisdictional Magistrate to take cognizance of an offence, which sets the ball rolling for a criminal investigation and trial to be initiated. Such power, however, is circumscribed by the right of hearing ensured by the first proviso to Section 223(1) of the BNSS.

On a proper reading of Article 21, 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 before taking cognizance of an offence allegedly committed by him. As such, it would be a rampant violation of Article 21 itself if cognizance is taken, obviously resulting in the initiation of a criminal proceeding which directly affects the personal liberty of the accused, without giving the accused his opportunity of hearing.

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A single bench of Justice Sabyasachi Bhattacharyya viewed that it is trite law that counse’s concession on law cannot be treated to be binding on the parties and their cannot be admission against the law. The question which has arisen before this Court is one of legal interpretation of a statute. The apparently contradictory stand taken by the ED before different courts is not a germane factor in the present adjudication and, thus, a non-issue. Hence, such divergence of stands taken by the ED before different forums/courts is hereby held to be immaterial.

The bench held that “ the impugned order dated February 15, 2025, taking cognizance of the offences made out in the complaints against the petitioners under the PMLA, being patently violative of the first proviso to Section 223(1), BNSS, since no pre-cognizance opportunity of hearing was given to the petitioners, is vitiated in law and a nullity in the eye of law.

The court set aside the same and allowed the appeal.

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