The Delhi High Court refused urgent listing of a plea questioning whether Section 223 of the BNSS applies to ED complaints filed before July 1, 2024. The matter will now be heard on April 1, 2026, with the key legal issue still undecided.
The Delhi High Court has refused to grant an urgent hearing in a petition that raises an important question under the new criminal law framework brought by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The case concerns whether the proviso to Section 223 of the BNSS—which makes it compulsory for a court to give a proposed accused a pre-cognizance hearing—would apply to a prosecution complaint filed by the Directorate of Enforcement (ED) before July 1, 2024.
Justice Prateek Jalan was hearing the matter and noted that the case could not be listed earlier due to the upcoming Holi vacation. The Court therefore declined the request for an early listing and directed that the petition will now be heard on the already scheduled date, April 1, 2026.
The petition challenges an order passed by a Special Court under the Prevention of Money Laundering Act (PMLA), which had taken cognizance of offences against the petitioner without giving him an opportunity to be heard. The petitioner argued that under the new BNSS regime, such a hearing is mandatory before the court takes cognizance.
According to the petitioner, the proviso to Section 223 of the BNSS provides a valuable procedural safeguard and must be treated as a beneficial provision. He contended that such a beneficial procedural right should apply retrospectively, even to prosecution complaints that were instituted before the BNSS came into force.
The petitioner pointed out that although the ED presented its prosecution complaint on June 27, 2024, it should not be considered as legally “filed” on that date. He argued that the complaint was still at an administrative stage and had not yet reached the stage where the court had applied its judicial mind.
Therefore, in his view, the matter had not yet become an “inquiry” under Section 2(g) of the Code of Criminal Procedure, 1973 (CrPC), and would not fall within the protection of the savings clause under Section 531 of the BNSS.’
The petitioner further argued that once the BNSS came into effect on July 1, 2024, the court was bound to follow its mandate, including the requirement of granting a pre-cognizance hearing. Relying on the Supreme Court’s judgment in Kushal Kumar Agarwal v. Directorate of Enforcement, he submitted that procedural safeguards that benefit the accused must be given retrospective application. He also contended that the Special Court’s order taking cognizance without granting such a hearing was without jurisdiction.
However, the Special Judge in the impugned order rejected this argument. The Special Court held that since the ED’s prosecution complaint had been filed before the enforcement of the BNSS, the proceedings would continue to be governed by the Code of Criminal Procedure.
As the CrPC does not provide for a hearing to the accused at the stage of taking cognizance, the Special Court examined the complaint on record, found a prima facie case, and proceeded to take cognizance of the alleged offences.
When the matter came up before the High Court, the Enforcement Directorate informed the Court that in light of the legal issue involved, it would not press for arguments on charge before the trial court for the time being. The High Court was also informed about an order passed by a coordinate Bench in Viphul Arora v. State (NCT of Delhi), where a similar issue had arisen and the trial court proceedings were adjourned in the meantime.
Taking note of the fact that the case before the Special Court is listed for arguments on charge on March 7, 2026, the High Court fixed the next date of hearing in the present petition as April 1, 2026. The Court declined the request for preponement and made it clear that it has not expressed any opinion on the merits of the matter.
Importantly, the central legal question—whether Section 223 of the BNSS applies to ED prosecution complaints filed before July 2024—remains open and will be decided in due course.
The petitioner was represented by Advocates Prabhav Ralli, Deeya Mittal, Samraat Saxena and Dev Vrat Arya.
Case Title:
Aditya Krishna v. Directorate of Enforcement
Click Here to Read More Reports on Ayyappa Sangamam
