The Madras High Court has reaffirmed a critical procedural safeguard in criminal prosecutions under the Prevention of Money Laundering Act, 2002, holding that failure to issue a pre-cognizance notice under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, renders the order taking cognizance legally invalid. This ruling reinforces the principle that procedural compliance is not a mere formality but a substantive right of the accused.
Background & Facts
The Dispute
The petitioners, Dhara Prasad and Harshita Annapragada, residents of Telangana, are respondents in a criminal case initiated by the Directorate of Enforcement under the Prevention of Money Laundering Act, 2002. The Enforcement Directorate filed a complaint in Special Criminal Case No.15 of 2025 before the IX Additional Special Judge for CBI Cases, Chennai, based on ECIR No.CEZO-I/48/2021. On 16.09.2025, the Special Judge took cognizance of the complaint without issuing any notice to the petitioners under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Key Facts
- The complaint was filed by the Directorate of Enforcement under Section 44 of the PMLA, 2002
- ECIR No.CEZO-I/48/2021 was registered on 18.03.2021
- The complaint was filed on 10.07.2025
- The Special Judge took cognizance on 16.09.2025 without any prior notice to the petitioners
- No record exists of any notice being issued under Section 223(1) BNSS prior to the cognizance order
Procedural History
- 18.03.2021: ECIR No.CEZO-I/48/2021 registered by the Directorate of Enforcement
- 10.07.2025: Complaint filed before IX Additional Special Judge for CBI Cases, Chennai
- 16.09.2025: Special Judge took cognizance of the complaint without issuing pre-cognizance notice
- 23.01.2026: Madras High Court, in R. Sampath v. Assistant Director, ED, held that pre-cognizance notice under Section 223(1) BNSS is mandatory
- 28.02.2026: Present petition filed under Section 528 BNSS challenging the cognizance order
- 20.04.2026: Judgment delivered by the Division Bench
The Parties' Positions
For the Petitioners: The petitioners contended that the Special Judge violated the mandatory procedural requirement under Section 223(1) BNSS, which requires the court to issue notice to the accused before taking cognizance of a complaint. They relied on the precedent set by the same Court in R. Sampath v. Assistant Director, ED (Crl.O.P.No.35200 of 2025), which had already held that cognizance without notice is void.
For the Respondent (ED): The Special Public Prosecutor for ED Cases did not contest the procedural defect. No argument was advanced to justify the absence of notice, nor was any attempt made to distinguish the Sampath precedent.
Relief Sought
The petitioners sought quashing of the order dated 16.09.2025 taking cognizance and restoration of the complaint to its original file for compliance with mandatory procedure under Section 223(1) BNSS.
The Legal Issue
The central question was whether Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 mandates the issuance of a pre-cognizance notice to the accused before a court can take cognizance of a complaint under the Prevention of Money Laundering Act, 2002.
Arguments Presented
For the Petitioner
The petitioners relied on the binding precedent of R. Sampath v. Assistant Director, ED (Crl.O.P.No.35200 of 2025), decided by the same Court on 23.01.2026, which held that Section 223(1) BNSS imposes a mandatory obligation on the court to issue notice to the accused before taking cognizance. They argued that the absence of such notice renders the cognizance order a nullity, as it violates the fundamental right to be heard under Article 21 of the Constitution. The petitioners emphasized that the BNSS, as a modern criminal procedure code, was designed to ensure procedural fairness and prevent arbitrary judicial action.
For the Respondent
The Respondent, through the Special Public Prosecutor, did not file any written submissions or advance any legal argument to counter the petitioners’ contention. No attempt was made to distinguish the Sampath case or to argue that the requirement under Section 223(1) is directory rather than mandatory. The silence of the Respondent was treated as acquiescence to the legal position advanced by the petitioners.
The Court's Analysis
The Court observed that the issue had already been authoritatively settled in R. Sampath v. Assistant Director, ED, where it was held that Section 223(1) BNSS is mandatory and not directory. The provision states: "The Court shall, before taking cognizance of a complaint, issue notice to the accused and afford him an opportunity to show cause why cognizance should not be taken."
"The language of Section 223(1) is unambiguous: the Court 'shall' issue notice. This is not a discretionary power but a statutory obligation. Failure to comply vitiates the entire proceeding from its inception."
The Court noted that the Special Judge’s order dated 16.09.2025 was passed without any indication that notice had been issued or that the accused had been given an opportunity to respond. The absence of such a record, coupled with the binding precedent, left no room for judicial discretion. The Court further emphasized that the BNSS was enacted to replace archaic procedures and to embed due process into the fabric of criminal investigation and prosecution, particularly in complex financial crimes where the stakes for the accused are exceptionally high.
The Court rejected any notion that the nature of the offence under PMLA justifies bypassing procedural safeguards. It held that the seriousness of money laundering does not override the constitutional guarantee of fair procedure.
The Verdict
The petition was partly allowed. The order dated 16.09.2025 taking cognizance in Special Criminal Case No.15 of 2025 was set aside. The complaint was restored to its original file number, and the IX Additional Special Judge for CBI Cases, Chennai, was directed to proceed in accordance with law by issuing notice under Section 223(1) BNSS before taking cognizance. No costs were awarded. The connected miscellaneous petitions were closed.
What This Means For Similar Cases
Pre-Cognizance Notice Is Non-Negotiable
- Practitioners must now insist on proof of compliance with Section 223(1) BNSS in all complaint-based proceedings, including those under PMLA, IPC, and other special statutes
- Any cognizance order without a record of notice issuance is liable to be set aside, regardless of the gravity of the offence
- Courts must record compliance with Section 223(1) in writing; mere oral assertion is insufficient
Enforcement Agencies Must Revise Internal Procedures
- The Directorate of Enforcement and other investigative agencies must ensure that complaints filed before Special Courts are accompanied by affidavits or certificates confirming that pre-cognizance notice was issued
- Failure to do so will result in dismissal of proceedings, causing significant delay and loss of prosecutorial momentum
- Internal audit mechanisms must be introduced to prevent recurrence of such procedural lapses
Judicial Accountability in Criminal Proceedings
- Judges must not assume that accused persons waive their right to notice; silence cannot be construed as consent
- The burden of proving compliance with Section 223(1) rests squarely on the prosecution and the court
- This judgment reinforces that procedural fairness is not a technicality but a constitutional imperative
