The right of an accused to be heard before cognisance of charges against them under Bharatiya Nagarik Suraksha Sanhita (BNSS) is also applicable under the stringent Prevention of Money Laundering Act (PMLA), the Supreme Court has held, citing fair trial enshrined under the Constitution’s Article 21.The Supreme Court noted a better right has been conferred under the BNSS. (HT PHOTO)“Chapter XVI of [the] BNSS [containing section 223] does not merely regulate the manner in which the proceedings are to be conducted...it confers a right upon the accused to be heard before taking cognisance, which forms a part of the right of an accused to a fair trial...”, said a bench of Justices MM Sundresh and N Kotiswar Singh on May 19, as it heard an appeal of an accused charged under PMLA in 2023 and arrested after BNSS came into operation a year later.A special court took cognisance of the charges against Parvinder Singh, the accused, in July 2024 without hearing him. He sought a recall of this order, claiming protection under BNSS Section 223(1), which provides an accused the right to be heard.In May 2025, the Delhi high court upheld the Enforcement Directorate (ED)’s argument that Section 223(1) was not applicable in this case, as the complaint against Parvinder Singh was registered before BNSS came into force. A year later, the Supreme Court reversed the ruling.Section 223 deals with the examination of a complainant. Its first proviso prohibits a magistrate from taking cognisance of an offence unless the accused is given an opportunity of being heard.The Supreme Court noted that the provision uses the word “shall”. “The first proviso to Section 223 has to be construed to be mandatory in nature....to the benefit of an accused. Resultantly, cognisance of an offence taken by a court without due compliance with the ....proviso would be void ab initio [void from the beginning].”Additional solicitor general SV Raju, who represented the ED, argued that the PMLA is a stand-alone enactment. He added that the provisions of the BNSS do not have application under the PMLA.The Supreme Court rejected the stand, underlining the mandate of a legislation which ensures the right of an accused to a fair trial, whose liberty is at stake, cannot be dispensed with. It added that non-compliance with the same is not just irregularity but an illegality.The court observed the nature of the right has to be seen. It added that when a better right has been conferred under the BNSS, it should benefit the accused. “Accordingly, we have no hesitation in holding that Sections 200 to 205 of the CrPC [now Sections 223 to 228 of the BNSS] would be applicable to proceedings under the PMLA.”