Punjab and Haryana High Court Quashes ED Proceedings Against Former NHPC Official for Non-Compliance with Section 223(2) BNSS
Introduction
The Punjab and Haryana High Court has quashed an order taking cognisance of money laundering charges against a former senior official of the National Hydroelectric Power Corporation (NHPC), holding that the mandatory procedural safeguards prescribed under Section 223(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), must be complied with before taking cognisance of a complaint against a public servant.
The High Court held that a court cannot take cognisance of a complaint against a public servant without first providing the proposed accused an opportunity to make submissions and obtaining a factual report from the public servant’s superior officer, as required under Section 223(2) BNSS.
The Court further clarified that these statutory safeguards are mandatory and apply even to prosecution complaints filed under the Prevention of Money Laundering Act, 2002 (PMLA).
Background of the Case
The matter concerned money laundering proceedings initiated against a former Chief General Manager (Finance) of NHPC.
The case originated from an FIR registered by the Central Bureau of Investigation (CBI) on April 26, 2023, under Section 109 of the Indian Penal Code and provisions of the Prevention of Corruption Act, 1988.
The allegations also involved the former official’s wife.
Subsequently, the Enforcement Directorate (ED) filed a prosecution complaint under the Prevention of Money Laundering Act on March 10, 2025.
The Special Judge (PMLA), Gurugram, passed an order dated April 23, 2026, taking cognisance of the prosecution complaint and issuing process against the accused.
Aggrieved by the cognisance and summoning order, the former NHPC official approached the Punjab and Haryana High Court seeking its quashing.
Legal Issue Before the High Court
The principal issue before the High Court was:
Whether a court can take cognisance of a prosecution complaint filed under the PMLA against a public servant without complying with the mandatory safeguards prescribed under Section 223(2) of the BNSS?
The provision requires the Court, before taking cognisance of an offence against a public servant arising in the course of discharge of official functions or duties, to provide the public servant an opportunity to make submissions and obtain a factual report from the officer superior to such public servant.
The question was whether these safeguards could be bypassed merely because the prosecution complaint was filed by the Enforcement Directorate under a special statute.
Findings and Observations of the Punjab and Haryana High Court
Justice Sumeet Goel, while allowing the petition and setting aside the cognisance order dated April 23, 2026, made significant observations regarding the mandatory nature of Section 223(2) BNSS.
1. Compliance with Section 223(2) BNSS is Mandatory
The High Court categorically held that the statutory safeguards under Section 223(2) BNSS are mandatory in nature.
The provision requires the Court to afford the proposed accused public servant an opportunity to make submissions and obtain a factual report from his or her superior officer before taking cognisance.
These requirements are not merely procedural formalities but mandatory statutory conditions.
2. Safeguards Apply to PMLA Prosecution Complaints
An important aspect of the ruling is its application to proceedings initiated under the Prevention of Money Laundering Act.
The High Court held that the safeguards contained in Section 223(2) BNSS are equally applicable to prosecution complaints filed under the PMLA.
The mere fact that the complaint is filed by the Enforcement Directorate under a special legislation does not automatically exclude the applicability of the procedural safeguards prescribed by the BNSS.
3. Opportunity of Hearing and Factual Report Are Essential
The Court emphasised that the statutory framework requires two important safeguards before cognisance is taken against a public servant:
- The proposed accused must be afforded an opportunity to make submissions.
- A factual report must be obtained from the officer superior to the concerned public servant.
Both requirements must be fulfilled before the Court proceeds to take cognisance.
4. Non-Compliance Makes the Cognisance Order Jurisdictionally Invalid
The High Court observed that the requirements under Section 223(2) BNSS are mandatory conditions precedent.
Any order taking cognisance or issuing process without complying with these statutory requirements would be jurisdictionally invalid.
The Court held that the statutory protection cannot be disregarded while exercising jurisdiction to take cognisance of a complaint against a public servant.
Final Decision
The Punjab and Haryana High Court set aside the order dated April 23, 2026, passed by the Special Judge (PMLA), Gurugram, taking cognisance of the ED prosecution complaint and issuing process against the accused.
The Court held that the mandatory safeguards under Section 223(2) BNSS had to be complied with before taking cognisance.
Consequently, the cognisance and summoning order was quashed.
Legal Significance of the Judgment
This ruling is significant for criminal litigation, particularly proceedings involving public servants under special statutes such as the Prevention of Money Laundering Act.
The judgment highlights the following legal principles:
- Mandatory procedural safeguards: Section 223(2) BNSS imposes mandatory requirements before cognisance is taken against a public servant in the circumstances covered by the provision.
- Application to special statutes: Prosecution complaints under the PMLA are not automatically exempt from the procedural safeguards prescribed under the BNSS.
- Opportunity to make submissions: A proposed accused public servant must be given the statutory opportunity to present submissions before cognisance.
- Factual report from superior officer: The Court must obtain the prescribed factual report from the superior officer before proceeding.
- Jurisdictional consequences: Failure to comply with mandatory statutory conditions may render the cognisance and summoning order jurisdictionally invalid.
- Importance of procedural compliance: Investigating agencies and prosecuting authorities must ensure that the prescribed legal procedure is followed before seeking judicial cognisance against public servants.
Conclusion
The Punjab and Haryana High Court’s decision reinforces the importance of procedural safeguards under the Bharatiya Nagarik Suraksha Sanhita, 2023.
The ruling makes it clear that the statutory protection provided under Section 223(2) BNSS cannot be bypassed merely because proceedings are initiated under a special legislation such as the PMLA.
It also serves as an important reminder that judicial cognisance must be preceded by compliance with mandatory statutory conditions, particularly where the law provides specific safeguards to public servants.
The judgment is therefore relevant for criminal law practitioners, defence lawyers, public servants and advocates dealing with PMLA prosecutions and cognisance proceedings.