The Delhi High Court has set aside a Special Judge's order in a money laundering case against Lakshay Vij, ruling that the trial court failed to follow the mandatory hearing requirement under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
The case arose from a prosecution complaint filed by the Enforcement Directorate (ED) on 19 September 2024 in connection with ECIR No. DLZO-I/50/2023 under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (PMLA). The petitioner had earlier sought a pre-cognizance hearing under the proviso to Section 223 BNSS, but the trial court rejected his plea on 4 January 2025.
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Senior advocate Vikas Pahwa, representing the petitioner, argued that the BNSS came into effect on 1 July 2024, and since the prosecution complaint was filed thereafter, it should be governed by BNSS provisions rather than the repealed CrPC, 1973. He contended that the complaint falls squarely under Section 223 BNSS, which mandates that no cognizance be taken without giving the accused an opportunity to be heard.
The ED's counsel, Zoheb Hossain, did not dispute the applicability of the Supreme Court ruling in Kushal Kumar Agarwal v. ED (2025 SCC OnLine SC 1221), which held that for complaints filed after 1 July 2024, Section 223 BNSS applies and an opportunity of hearing is mandatory. He requested that any pending bail applications be decided on their own merits.
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Justice Ravinder Dudeja noted that the Supreme Court, in Kushal Kumar Agarwal, had already clarified that a PMLA complaint filed after the BNSS came into force cannot proceed without such a hearing. In that case, the apex court had set aside the trial court's order solely for non-compliance with Section 223 BNSS, without delving into the merits.
Quoting the Supreme Court's words:
"No cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard."
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Since the ED's complaint against Vij was filed post-1 July 2024, the High Court held that the trial court's refusal to grant a hearing was contrary to law.
Accordingly, the High Court allowed the petition, set aside the 4 January 2025 order, and directed the trial court to hear the petitioner before taking cognizance in accordance with Section 223 BNSS. It clarified that any bail applications must be decided independently on their merits.
Case Title:- Lakshay Vij vs. Directorate of Enforcement Through its Director
