SC: Even PMLA accused has a right to be heard

NEW DELHI: Holding that provisions of CrPC or BNSS meant to ensure the right of an accused to a fair trial cannot be dispensed with even in case of trial under a special law like PMLA, Supreme Court has held that an accused had to be heard before a court can take cognisance of any money laundering case.

A bench of Justices M M Sundresh and N K Singh rejected the plea of Enforcement Directorate, which submitted that the PMLA law is a standalone enactment and, therefore, the provisions of BNSS had no application to proceedings under it.

“Though Chapter XVI of the BNSS lays down the procedural law dealing with complaints made to a magistrate, we hold that the aforesaid proviso is substantive in nature, as it does not merely regulate the manner in which the proceedings are to be conducted, rather 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 enshrined under Article 21 of the Constitution. We further hold that the word 'shall' occurring in the said proviso has to be construed to be mandatory in nature. Resultantly, cognisance of an offence taken by a court without due compliance of the aforestated proviso would be void ab initio,” the bench said.

Responding to additional solicitor general S V Raju's submission that a special court set up under PMLA cannot be made to follow the general criminal procedure contemplated under BNSS, the bench said that the mandate of a legislation which ensures the right of an accused to a fair trial cannot be dispensed with.

SC junks PMLA court order over failure to hear accused
It said, “Taking away the applicability of the provisions governing a complaint under sections 200 to 205 of CrPC (now sections 223 to 228 of BNSS) to the proceedings under PMLA, including the one that has a serious bearing not only on the right of the accused but also on the power of the court, would lead to disastrous consequences.

If the argument so made by the learned ASG is accepted, then the special court under PMLA would have no jurisdiction to: dismiss a complaint despite an absolute lack of evidence, postpone the issuance of process, issue process or dispense with the appearance of an accused as provided under sections 225 to 228 of BNSS, respectively.”

It quashed a PMLA court’s order that had taken cognisance of the offence without hearing the accused and directed it to afford him an opportunity of hearing