Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Section 223(1), First Proviso & Article 21 of the Constitution of India — Opportunity of being heard before taking cognizance — Mandatory and substantive nature: The first proviso to Section 223(1) of the BNSS bars a Magistrate/Special Court from taking cognizance of an offence on a complaint without giving the accused an opportunity of being heard. Held, this proviso is not merely procedural; it confers a substantive right on the accused forming an integral part of the right to a fair trial under Article 21 of the Constitution. The word "shall" is mandatory. Failure to afford a hearing before taking cognizance is an incurable illegality (not a mere irregularity) that renders the cognizance order void ab initio. Prejudice need not be separately established by the accused. (Paras 26, 27, 37, 38)

advocatemmmohan

 Parvinder Singh vs Enforcement Of Directorate on 19 May, 2026 - 2026 INSC 519

HEADNOTES

• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Section 223(1), First Proviso & Article 21 of the Constitution of India — Opportunity of being heard before taking cognizance — Mandatory and substantive nature:
  The first proviso to Section 223(1) of the BNSS bars a Magistrate/Special Court from taking cognizance of an offence on a complaint without giving the accused an opportunity of being heard. Held, this proviso is not merely procedural; it confers a substantive right on the accused forming an integral part of the right to a fair trial under Article 21 of the Constitution. The word "shall" is mandatory. Failure to afford a hearing before taking cognizance is an incurable illegality (not a mere irregularity) that renders the cognizance order void ab initio. Prejudice need not be separately established by the accused.
  
  
  (Paras 26, 27, 37, 38)
  
  
• Prevention of Money Laundering Act, 2002 (PMLA) — Sections 43, 44(1)(b), 44(1)(d), 46, 65 & 71 read with BNSS Sections 223 to 228 (CrPC Sections 200 to 205) — Applicability of general complaint procedure to PMLA Special Courts:
  Sections 223 to 228 of the BNSS (formerly Sections 200 to 205 of the CrPC) are not inconsistent with the scheme of the PMLA and apply to complaints instituted by the Enforcement Directorate under Section 44(1)(b). The Special Court, deemed to be a Court of Session, possesses powers to dismiss a complaint, postpone process, issue summons/warrants, or dispense with personal appearance under these provisions. Consequently, the mandatory pre-cognizance hearing requirement under the first proviso to Section 223(1) of the BNSS fully applies to prosecution complaints filed under the PMLA. Tarsem Lal v. ED, (2024) 7 SCC 61; Yash Tuteja v. Union of India, (2024) 8 SCC 465; and Kushal Kumar Agarwal v. ED, 2025 SCC OnLine SC 1221, followed and reaffirmed.
  
  
  (Paras 14–19, 30–33)
  
  
• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Section 2(1)(k) & Section 531(2)(a) — Definition of "Inquiry" and Repeal/Savings clause — Ministerial vs. Judicial acts:
  Under Section 2(1)(k) of the BNSS, an "inquiry" requires an active application of judicial mind by a Magistrate or Court. Mere ministerial or administrative acts—such as receiving a prosecution complaint, directing it to be numbered/registered as a miscellaneous case, or fixing a future date for consideration—do not constitute the commencement of an "inquiry". Where a complaint is filed under the CrPC before 01.07.2024, but judicial mind for taking cognizance is applied on or after 01.07.2024, no inquiry was "pending" immediately before the BNSS came into force. Therefore, Section 531(2)(a) of the BNSS does not save the erstwhile CrPC procedure, and the new mandate of Section 223(1) of the BNSS applies prospectively to the cognizance stage. Hardeep Singh v. State of Punjab, (2014) 3 SCC 92, discussed and relied upon.
  
  
  (Paras 10, 21, 28, 29, 34–36)
  
  

RATIO DECIDENDI

1. Mandatory Pre-Cognizance Hearing: Compliance with the first proviso to Section 223(1) of the BNSS is an absolute statutory and constitutional prerequisite. Taking cognizance on a complaint without affording the accused an opportunity of being heard is an incurable illegality rendering the order void ab initio.
   
   
2. Harmonization of PMLA and BNSS: Sections 223 to 228 of the BNSS govern complaints under Section 44(1)(b) of the PMLA as they are not inconsistent with PMLA provisions (Sections 46, 65, and 71 of the PMLA).
   
   
3. Scope of Section 531(2)(a) Savings: For the savings clause under Section 531(2)(a) of the BNSS to preserve the old CrPC regime, an "inquiry" must have actually commenced through a conscious judicial act prior to 01.07.2024. Routine administrative registration and listing do not trigger an inquiry; hence, any cognizance considered after 01.07.2024 must conform to the BNSS.
   
   

FACTUAL & LEGAL ANALYSIS

1. Chronology of Facts

• 24.07.2023: ED registered ECIR/DNSZO/04/2023 against the appellant; appellant arrested on 27.04.2024.
  
  
• 24.06.2024: ED filed a prosecution complaint under Sections 44 & 45 PMLA before the Special Court. The Special Court ordered it to be registered as a miscellaneous case and listed it for hearing on cognizance on 28.06.2024.
  
  
• 28.06.2024: Presiding Officer on recess; matter relisted for 02.07.2024.
  
  
• 01.07.2024: The BNSS, 2023 came into force, repealing the CrPC, 1973.
  
  
• 02.07.2024: Special Court took cognizance of offences under Section 3 read with Section 4 of the PMLA without providing the appellant an opportunity of being heard.
  
  
• 24.12.2024 – 22.03.2025: Appellant filed a recall application citing non-compliance with the first proviso to Section 223(1) of the BNSS. The Special Court dismissed it as dilatory, framed charges, and set the matter for trial.
  
  
• 19.05.2025: High Court of Uttarakhand dismissed the challenge to the cognizance order via Section 531(2)(a) BNSS (holding proceedings commenced under CrPC), though it remanded the framing of charges.
  
  

2. Legal Analysis & Resolution

• PMLA Special Courts vs. BNSS Complaint Procedure:
  
  
  The respondent argued that PMLA is a self-contained code excluding Chapters XIV–XVII of the BNSS. The Supreme Court rejected this, reiterating Tarsem Lal, Yash Tuteja, and Kushal Kumar Agarwal. Sections 44(1)(d), 46, and 65 of the PMLA deliberately import procedural provisions of the Code (now BNSS) to the extent they are not inconsistent. If Section 223 were inapplicable, the Special Court would lack fundamental powers under Sections 225–228 (such as dismissing frivolous complaints or dispensing with personal attendance).
  
  
• Administrative Filing vs. Judicial "Inquiry":
  
  
  The ED contended under Section 531(2)(a) that an "inquiry" was pending before 01.07.2024 because the complaint was filed and registered on 24.06.2024. The Court clarified the distinction between administrative/ministerial acts and judicial inquiry:
  
  
  • An "inquiry" under Section 2(1)(k) requires the active application of judicial mind to the facts and law.
    
    
  • Numbering a complaint and scheduling a hearing date are purely ministerial steps.
    
    
  • Judicial application of mind occurred only on 02.07.2024—the date cognizance was taken—by which time BNSS was the governing procedural code. Therefore, no inquiry was pending prior to 01.07.2024 to warrant the application of the old CrPC.
    
    
• Effect of Non-Compliance with Section 223(1) First Proviso:
  
  
  The requirement of hearing the accused prior to taking cognizance is mandatory ("shall") and substantive, tied directly to Article 21 fair trial safeguards. It cannot be excused as a technical or curable irregularity under Section 506 or 511 of the BNSS. The cognizance order dated 02.07.2024 was therefore declared void ab initio.
  
  

Final Verdict:

The Supreme Court allowed the appeal, set aside the High Court's judgment dated 19.05.2025 and the Special Court's cognizance order dated 02.07.2024, and remanded the matter to the Special Court to hear the appellant afresh at the stage of taking cognizance within 8 weeks.

Reference to a larger Bench — Scope — Ordinarily, the referee Bench must answer only the questions referred and remit the matter to the referring Bench. However, where the referring Bench itself fails to identify the points of difference and formulates questions which necessarily require examination of the entire evidence and go to the root of the dispute, the referee Bench may, in exceptional circumstances, adopt a common-sense approach and decide the matter on the basis of the majority opinion. Such course, in the peculiar facts of the present case, did not constitute an illegality warranting interference under Article 227. [Paras 13–20]

advocatemmmohan

ASKARI HUSSAIN AND ORS. v. DINESH KUMAR AND ORS.

2026 INSC 929 — Civil Appeal No. 11988 of 2026
Supreme Court of India — Judgment dated 24 August 2026
Dipankar Datta, J. and Sheel Nagu, J.

HEADNOTES

Consumer Protection Act, 2019 — Section 58(3) — Difference of opinion between members of NCDRC — Reference to third member — Scope of reference — Third member ordinarily required to answer only the point(s) referred and return the matter to the referring Bench for disposal in accordance with majority opinion. [Paras 14, 16–18]

Consumer Protection Act — Section 58(3) — Reference — Referring Bench failing to state the specific point(s) of difference and instead framing questions requiring examination of facts and evidence — Third member considering the entire material and deciding the appeal on merits — Such course, though ordinarily impermissible, not treated as jurisdictional illegality in the peculiar facts of the case. [Paras 17–19]

Reference to larger Bench — Jurisdiction — Referee Bench — Larger Bench cannot ordinarily adjudicate an issue not referred to it — After answering the reference, matter should normally be remitted to the original/referring Bench for decision on merits — Exception where subsidiary question logically and unavoidably arises, permitting a common-sense approach. [Para 13]

Reference — Scope determined by terms of reference — Word “matter” cannot automatically be construed as referring the entire case where context demonstrates that only specified questions were referred. [Para 13]

Consumer proceedings — Difference of opinion — Section 58(3) — Statutory scheme differs from ordinary CPC reference — Where members are equally divided, points of difference are to be referred to the President/other member and decided according to the majority opinion of all members who heard the case, including original members. [Para 16]

Article 227 — Supervisory jurisdiction — Procedural irregularity in reference — High Court ought not interfere where the third member's procedure, in the peculiar circumstances, does not constitute such illegality as warrants supervisory intervention. [Paras 19–20]

Article 227 — Merits not examined by High Court — Where High Court interferes only on procedural ground and does not examine the substantive findings, Supreme Court may set aside the High Court order and remand the Article 227 application for decision on merits. [Paras 21–23]

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I. FACTS

1. Consumer complaint and compensation

Para 3: The appellants had instituted Complaint No. 13 of 2006 before the State Consumer Disputes Redressal Commission, Uttar Pradesh. The State Commission allowed the complaint by order dated 4 December 2012 and awarded compensation of ₹95 lakh with 15% interest.

2. Appeal before NCDRC

Para 3: The first respondent preferred First Appeal No. 156 of 2013 before the National Consumer Disputes Redressal Commission.

3. Difference between two members

Para 4: The two members of the NCDRC Bench differed:

• the Presiding Member allowed the appeal and dismissed the complaint;

• the companion member modified the State Commission's order by reducing compensation to ₹93 lakh and interest to 12%.

[Para 4]

4. Reference to third member

Para 5: Since the members were divided, a reference was made under Section 58(3) of the Consumer Protection Act, 2019. The third member disagreed with the Presiding Member and agreed with the companion member.

5. Five questions referred

Para 9: Instead of stating the precise points on which the original members differed, the referring Bench formulated five questions dealing with:

1. evidence linking the appellant doctor with Surya Medical Centre;

2. proof that the complainant's wife was admitted/operated there;

3. whether oral explanations not contained in the original complaint could be considered;

4. alleged withholding/non-production of medical records; and

5. whether an uncontroverted affidavit could be accepted in a summary proceeding.

[Para 9]

6. Third member decided the appeal itself

Paras 5, 10: After answering the questions, the third member went further and disposed of the appeal itself, modifying the compensation and interest and issuing directions concerning payment of the compensation to the complainants.

7. Challenge before High Court

Para 6: The first respondent approached the Allahabad High Court under Article 227. The Single Judge held that the third member had exceeded the jurisdiction conferred by the reference and quashed the order, directing the matter to be heard afresh by the third member.

---

II. ISSUE

8. Question before Supreme Court

Para 7: The precise issue was:

Whether the third member was justified in deciding the appeal itself after concurring with the companion member, or whether he was required merely to answer the questions referred and return the matter to the original referring Bench for appropriate orders based on the majority opinion.

[Para 7]

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III. LAW

A. GENERAL LAW GOVERNING REFERENCES

9. Normal rule

Para 14: The law is well settled that, ordinarily, a referee Bench must:

1. answer the question(s) referred;

2. return the reference with those answers; and

3. leave the original/referring Bench to decide the remaining issues in accordance with the answers and majority opinion.

[Para 14]

10. Larger Bench cannot exceed reference

Para 13: In State of Punjab v. Salil Sabhlok, the Court reiterated that a larger Bench ordinarily cannot expand the scope of the reference or frame additional questions beyond those referred.

11. Reference is not transfer of entire case

Para 13: Kerala State Science & Technology Museum v. Rambal Co. was relied upon for the proposition that where a specific issue is referred to a larger Bench, the larger Bench cannot adjudicate upon an issue that was not referred.

12. Matter ordinarily goes back

Para 13: T.A. Hameed v. M. Viswanathan and Saquib Abdul Hameed Nachan v. State of Maharashtra were cited for the principle that after answering a reference, the matter normally has to be remitted to the referring Bench for decision on merits.

---

IV. EXCEPTION — COMMON-SENSE APPROACH

13. Subsidiary questions may be answered

Para 13: The rule is not absolute. Where a subsidiary question logically and unavoidably arises from the questions referred, the larger Bench may answer it by adopting a common-sense approach.

14. Scope depends upon actual reference

Para 13: The Court emphasised that everything depends upon the terms of the reference. A reference of the “matter” does not necessarily mean that the entire case has been transferred for adjudication. The word must be understood in its contextual setting.

---

V. SPECIAL STATUTORY SCHEME UNDER SECTION 58(3)

15. Section 58(3)

Para 16: Section 58(3) specifically provides that where members of a NCDRC Bench differ:

• the point(s) are decided according to majority if there is a majority;

• if the members are equally divided, they state the point(s) on which they differ;

• those point(s) are referred to the President or another member;

• the point(s) are then decided according to the opinion of the majority of all members who heard the case, including the original members.

16. Statutory distinction from ordinary civil references

Para 15: In ordinary CPC proceedings there is no provision corresponding to Section 392 CrPC or Section 433 BNSS concerning references. Therefore, CPC references are governed principally by judicial precedent. In consumer proceedings, however, Section 58(3) directly supplies the governing mechanism.

---

VI. APPLICATION OF LAW

17. Prima facie excess by third member

Para 17: On a plain reading of Section 58(3), it appeared that the third member had exceeded jurisdiction by deciding the appeal instead of merely answering the points referred.

18. But reference itself was defective

Para 17: The Supreme Court identified the decisive circumstance: the original members did not state the points on which they differed.

Instead, five questions were formulated which required consideration of:

• factual allegations;

• rebuttals;

• evidence; and

• the merits of the complaint.

[Paras 17–18]

19. Questions went to the root of the dispute

Para 18: The five questions were inseparable from the evidence and went to the root of the complaint. Consequently, the third member necessarily had to examine the entire material and rival contentions to answer them.

20. Common-sense exception applied

Para 18: In those peculiar circumstances, the Supreme Court considered the third member's decision to dispose of the appeal along with answering the questions to be a common-sense approach of the kind recognised in Salil Sabhlok.

---

VII. ARTICLE 227

21. No jurisdictional illegality warranting interference

Para 19: The Supreme Court held that, in the particular circumstances, the third member's failure to return the reference and instead deciding the appeal did not constitute such an illegality as warranted interference under Article 227.

22. High Court's reliance on Kesho Nath distinguished

Para 20: The High Court had correctly found support in Kesho Nath Khurana for the general proposition that a referee Bench should return the matter after answering the reference. However, the Supreme Court held that the present case was materially different because of:

• Section 58(3);

• the defective/faltering reference; and

• the nature of the five questions referred.

[Para 20]

23. Merits never examined by High Court

Para 21: The High Court had not questioned the substantive answers given by the third member. Its objection was confined entirely to the procedure adopted. Therefore, the merits remained unexamined.

---

VIII. RATIO DECIDENDI

Ratio 1

Ordinarily, a referee Bench must confine itself to the question(s) referred to it and, after answering them, return the matter to the referring Bench for disposal in accordance with the majority opinion.

[Para 14]

Ratio 2

The larger/referee Bench cannot ordinarily adjudicate upon matters outside the scope of the reference. The scope of reference is determined by the terms and context of the referring order.

[Para 13]

Ratio 3

The rule is subject to a limited exception: where a subsidiary issue logically and unavoidably arises from the questions referred, the referee Bench may adopt a common-sense approach and deal with such issue.

[Para 13]

Ratio 4

Under Section 58(3) of the Consumer Protection Act, 2019, where members of an NCDRC Bench differ, the statutory mechanism is to identify the point(s) of difference and have those points decided by the additional member together with the original members for purposes of majority.

[Para 16]

Ratio 5

Where the referring Bench fails to identify the actual points of difference and instead frames questions which necessarily require examination of the evidence and go to the root of the dispute, the third member's consideration of the entire material and disposal of the appeal on the basis of the resulting majority opinion may, in the peculiar circumstances, be treated as a permissible common-sense approach rather than a jurisdictional illegality warranting Article 227 interference.

[Paras 17–19]

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IX. CONCLUSION

24. High Court order set aside

Para 23: The Supreme Court set aside the impugned order of the Allahabad High Court.

25. Article 227 application remanded

The application under Article 227 was remanded to the High Court for consideration afresh on its own merits and in accordance with law.

26. All factual and legal issues left open

The Court expressly left all questions of fact and law open to be raised before the appropriate roster Bench of the High Court.

27. NCDRC restrained from proceeding

Para 25: The Supreme Court directed that the NCDRC should not proceed further until the High Court finally decides the Article 227 application in accordance with the Supreme Court's order.

28. Expeditious disposal

Para 24: Considering the passage of time, the High Court was requested to decide the Article 227 application at an early date.

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CONCISE RATIO

Reference to a larger Bench — Scope — Ordinarily, the referee Bench must answer only the questions referred and remit the matter to the referring Bench. However, where the referring Bench itself fails to identify the points of difference and formulates questions which necessarily require examination of the entire evidence and go to the root of the dispute, the referee Bench may, in exceptional circumstances, adopt a common-sense approach and decide the matter on the basis of the majority opinion. Such course, in the peculiar facts of the present case, did not constitute an illegality warranting interference under Article 227. [Paras 13–20]