1. Is a proposed accused entitled to copies of documents, which the complainant does not propose to rely in support of the complaint, at the pre-cognizance stage?

2. The petitioner is the 1st accused in ECIR No. KCZO/13/2021 pending on the file of the Additional Special Sessions Court (SPE/CBI)-III, Ernakulam (‘Trial Court’, for short), which is registered on a complaint filed by the respondent, alleging that the accused have allegedly committed the offence punishable under Section 4 r/w. Sections 3 and 70 of the Prevention of Money Laundering Act, 2002 (‘PML Act', for brevity).

3. The petitioner's case, in brief, is that the respondent has filed a complaint against the petitioner and four others alleging the commission of the aforesaid offence. Upon the Trial Court issuing notice to accused, as contemplated under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, 'BNSS'), the petitioner filed an application contending that several copies of the documents furnished by the respondent were illegible and unreadable and that copies of certain documents collected during the course of investigation, though not relied upon by the respondent, had not been supplied to the petitioner. Therefore, the respondent may be directed to furnish the readable copies of the relied-upon documents and copies of the un-relied documents to enable the petitioner to effectively exercise its valuable right of hearing conferred under Section 223 BNSS. The application was opposed by the respondent. The Trial Court, after considering the rival contentions, dismissed the application by Annexure-D order. The petitioner challenges the legality, correctness and propriety of Annexure-D on the grounds that it suffers from manifest illegality and arbitrariness and has resulted in denial of a fair opportunity of hearing.

4. I have heard Sri. S. Sreekumar, the learned Senior Counsel appearing for the petitioner, and Sri. Jaishankar V. Nair, the learned Standing Counsel appearing for the respondent.

5. Sri. S. Sreekumar vehemently contended that the opportunity of hearing contemplated under Section 223 of the BNSS cannot be reduced to a ritualistic or empty formality. According to the learned Senior Counsel, the legislative intent underlying the provision is to afford the proposed accused an effective, meaningful and informed opportunity to persuade the Court not to take cognizance of the complaint. The valuable right would be rendered wholly illusory unless the accused is furnished with all the relevant materials collected during the investigation, including those materials that the prosecution does not propose to rely. The learned Senior Counsel further invited my attention to Rule 19(4) of the Criminal Rules of Practice, Kerala, and submitted that the said Rule recognises the entitlement of an accused to have access to the materials collected during investigation. It was argued that the concept of a fair hearing is an inseparable facet of the guarantee of a fair procedure and that denial of access to relevant materials would substantially prejudice the right of the accused to effectively oppose the taking of cognizance. In support of the above submissions, reliance was placed on the decisions of the Hon'ble Supreme Court in Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re. v. State of Andhra Pradesh and Others [(2021) 10 SCC 598], Deepak Yadav v. State of Uttar Pradesh [2025 SCC OnLine SC 3061], and Sunil Bharti Mittal v. CBI [(2015) 4 SCC 609].

6. Sri. Jaishankar V. Nair stoutly opposed the petition. He submitted that Annexure-D order does not suffer from any error, illegality or impropriety warranting interference by this Court. The learned Standing Counsel placed reliance on the decision of the Hon'ble Supreme Court in Sarla Gupta and Another v. Directorate of Enforcement [(2025) 7 SCC 626] and contended that the controversy raised in the present proceedings stands squarely covered by the principles enunciated in the said decision. The learned Standing Counsel submitted that an accused is not entitled to un-relied documents at the pre-cognizance stage. The petitioner, therefore, cannot assert a legal right to demand copies of documents which the respondent itself does not propose to rely upon. The Trial Court has correctly appreciated the statutory scheme governing proceedings under Section 223 of the BNSS and rightly rejected the application. Therefore, the Criminal Miscellaneous Case may be dismissed.

7. The petitioner filed the application for a direction to the respondent to furnish readable copies of certain documents already supplied and also copies of the un-relied documents referred to in paragraphs 6 and 7 of the application.

8. It is no longer res integra that the procedure contemplated under Sections 223 to 226 of the BNSS is equally applicable to complaints instituted under the provisions of the PML Act. The legal position stands authoritatively settled by the Hon'ble Supreme Court in Kushal Kumar Agarwal v. Directorate of Enforcement [2025 SCC OnLine SC 1221], wherein it is declared that the safeguards incorporated under the BNSS govern proceedings initiated on complaints filed under the PMLA as well.

9. In the above backdrop, it is apposite to extract Section 223 of the BNSS, which reads thus:

                  “223. Examination of complainant.-

                  (1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

                  Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:

                  Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses—

                  (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

                  (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212:

                  Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

                  (2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless—

                  (a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and

                  (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received.”

10. A purposive reading of Section 223 BNSS leaves little room for doubt that the provision merely obligates the Court to afford the proposed accused an opportunity of being heard before taking cognizance of an offence on a complaint. The legislative innovation lies in introducing a pre-cognizance hearing, thereby enabling the proposed accused to persuade the Court that the complaint, even if accepted at face value, does not warrant to take cognizance of the offence. The provision, however, does not create a substantive right in favour of the proposed accused to demand inspection of, or copies of, every document collected during the investigation. The hearing contemplated under Section 223 is intended to assist the Court in determining whether the complaint and the materials relied upon by the complainant disclose sufficient grounds to proceed. It is not designed to afford the proposed accused an opportunity to embark upon an exhaustive examination of the prosecution records or to seek discovery of materials which the complainant itself does not propose to rely upon. The Court, at this stage, is only required to ascertain whether a prima facie case exists for taking cognizance. It is neither expected nor permitted to meticulously appreciate the evidence, adjudicate upon rival factual contentions, evaluate the probable defence of the proposed accused, or undertake a roving enquiry into the entire corpus of the investigation records. The enquiry remains narrowly circumscribed and offence-centric, directed solely towards deciding whether the complaint deserves to cross the threshold of cognizance.

11. The above interpretation receives reinforcement from the authoritative pronouncement of the Hon'ble Supreme Court in Sarla Gupta (supra). In paragraph 68.4 of the judgment, the Apex Court held thus:

                  “68.4 At the time of hearing for framing of charge, reliance can be placed only on the documents forming part of the charge sheet. In case of the PMLA, at the time of framing charge, reliance can be placed only on those documents which are produced along with the complaint or supplementary complaints. Though the accused will be entitled to a list of documents, objects, exhibits etc. that are not relied upon by the ED at the stage of framing of charge, in ordinary course, the accused is not entitled to seek copies of the said documents at the stage of framing of charge.”

12. The exposition of law in Sarla Gupta (supra) unequivocally demonstrates that even at the subsequent stage of framing of charge, where the rights of an accused are considerably wider, the entitlement extends only to a list of the un-relied documents and not, in the ordinary course, to copies thereof. If such is the legal position at the stage of framing of charge, a fortiori, a proposed accused cannot claim a superior or more expansive right at the anterior stage of pre-cognizance proceedings under Section 223 BNSS. If the petitioner's contention is accepted, it would convert the limited hearing envisaged under Section 223 into an exercise of pre-trial discovery, which is neither the language of the above provision nor the scheme of the BNSS.

In the present case, the petitioner seeks copies of documents which are admittedly not relied upon by the respondent. The prayer is beyond the contours of the hearing contemplated under Section 223 of the BNSS. I am, therefore, of the considered view that the Trial Court has correctly appreciated the statutory framework governing the question and has rightly declined the relief sought by the petitioner. The Criminal Miscellaneous Case is meritless and is accordingly dismissed.