A division bench of the Apex Court held that an accused must be given an opportunity of hearing under the first proviso to Section 223(1) of the BNSS, even where the prosecution complaint was filed before July 1, 2024. The Court clarified that non-compliance with this requirement makes the cognizance order void ab initio.
From Para 27,
27. Though Chapter XVI of the BNSS lays down the procedural law dealing with complaints made to a Magistrate, we hold that the aforesaid proviso is substantive in nature, as it does not merely regulate the manner in which the proceedings are to be conducted, rather it confers a right upon the accused to be heard before taking cognizance which forms a part of the right of an accused to a fair trial enshrined under Article 21 of the Constitution of India, 1950. We further hold that the word “shall” occurring in the said proviso has to be construed to be mandatory in nature, which enures to the benefit of an accused. Resultantly, cognizance of an offence taken by a Court without due compliance of the aforestated proviso would be void ab initio.
The Bench observed that the proviso grants a substantive right to the accused and is part of the guarantee of fair trial under Article 21 of the Constitution. It further held that the word “shall” in the proviso is mandatory in nature.
From Para 29,
29. A substantive right conferred under the BNSS would definitely enure to the benefit of an accused against whom none of the proceedings envisaged under Section 531(2)(a) of the BNSS has been initiated. One has to see the nature of right. It is not a case of either a retrospective or retroactive application, rather it is a prospective one when a better right has been conferred under the BNSS.
The Court also ruled that ministerial acts like numbering a complaint and posting it for cognizance do not amount to an “inquiry” under Section 2(1)(k) BNSS.
From Para 34,
34. A mere ministerial act cannot be termed as an “inquiry” under Section 2(1)(k) of the BNSS. Taking cognizance is nothing but an application of judicial mind. So long as the application of the judicial mind is not exercised, an inquiry cannot commence. It is the judicial notice of an offence by the Court which is relevant. While doing so, it is presumed that the Court would take note of the complaint along with the materials placed before it.
From Para 36,
36. As rightly held by this Court in Hardeep Singh (supra), even the stage of ensuring compliance with Sections 207 to 209 of the CrPC, 1973 cannot be termed as an inquiry because there is no application of judicial mind. In the facts of the instant case, the direction issued by the Special Court, vide order dated 24.06.2024, to number the complaint and, thereafter, post the matter on a future date for hearing on cognizance would certainly not come within the purview of an “inquiry” under Section 2(1)(k) of the BNSS. In such view of the matter, the aforestated contention raised by the learned ASG falls to the ground.
Citations: [2026 INSC 519]
Other Sources:
https://indiankanoon.org/doc/46844204/
https://www.casemine.com/judgement/in/6a0efbcf3da19f224cfa1ec5
https://www.verdictum.in/supreme-court/parvinder-singh-v-directorate-of-enforcement-2026-insc-519-pmla-complaints-filed-before-bnss-1614403
https://thelexpedia.com/judgements/parvinder-singh-v-directorate-of-enforcement-2026
