Delhi HC Refuses Urgent Hearing In Plea On Applicability Of Section 223 BNSS To Pre-July 2024 ED Complaint

The Delhi High Court has declined to grant an early hearing in a petition raising the question whether the proviso to Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which mandates a pre-cognizance hearing to a proposed accused, would apply to a prosecution complaint filed by the Directorate of Enforcement (ED) prior to 01.07.2024.

The matter will now be taken up on the date already fixed, i.e., 01.04.2026, the Court noting that it was not possible to list the case earlier in view of the impending Holi vacation.

Justice Prateek Jalan was hearing a challenge to an order of the PMLA Special Court taking cognizance of offences against the petitioner without granting him an opportunity of being heard.

The petitioner contended that such a hearing was mandatory in terms of the proviso to Section 223 of the BNSS and that the provision, being beneficial in nature, would apply retrospectively even to prosecution complaints instituted before the new criminal procedure regime came into force.

It was submitted on behalf of the petitioner that although the ED’s prosecution complaint was presented on 27.06.2024, it could not be treated as having been “filed” in the legal sense on that date, as the court had not applied its judicial mind and the matter remained at an administrative stage for transfer to the designated Special Court.

According to the petitioner, the proceedings therefore did not amount to the commencement of an “inquiry” within the meaning of Section 2(g) of the Code of Criminal Procedure, 1973, and would not be protected by the savings clause contained in Section 531 of the BNSS.

It was argued that once the BNSS came into force, the court was bound to comply with the mandate of granting a pre-cognizance hearing.

Reliance was placed on the Supreme Court’s decision in Kushal Kumar Agarwal v. Directorate of Enforcement to contend that procedural safeguards beneficial to the accused must be given retrospective effect. It was further urged that the order taking cognizance without such an opportunity was without jurisdiction.

The Special Judge, in the impugned order, had rejected this contention and held that since the prosecution complaint was filed prior to the enforcement of the BNSS, the provisions of the Code of Criminal Procedure would continue to govern the proceedings.

As the CrPC does not provide for a hearing to the accused at the stage of taking cognizance, the court proceeded to examine the complaint and, upon finding a prima facie case, took cognizance of the alleged offences.

During the hearing before the High Court, the Enforcement Directorate stated that, in view of the issue raised, it would not press for arguments on charge before the trial court for the time being.

The High Court was also informed of an order passed by a coordinate Bench in Viphul Arora v. State (NCT of Delhi), where a similar question had arisen and the trial court proceedings were adjourned in the meantime.

Taking note of the fact that the proceedings before the Special Court are listed for arguments on charge on 07.03.2026, the High Court fixed the matter for 01.04.2026 and declined the request for preponement.

The Court has not expressed any opinion on the merits of the rival contentions, and the central issue, whether Section 223 of the BNSS applies to ED prosecution complaints instituted before July 2024, remains to be adjudicated.

The petitioner was represented by Advocates Prabhav Ralli, Deeya Mittal, Samraat Saxena and Dev Vrat Arya.

Case Title: Aditya Krishna v. Directorate of Enforcement

Bench: Justice Prateek Jalan

Order dated: February 27, 2026