The Supreme Court Uses BNSS to Clip Investigating Agencies' Wings: Why Sections 223(1) and 193(9) Will Reshape Your Defense Strategy

The End of Mechanical Cognizance and Unchecked Investigations

For decades, the Indian criminal defense bar has battled a systemic lethargy at the Magistrate and Special Court levels. The mechanical taking of cognizance and the endless, unilateral "further investigations" by police have been the bane of speedy trials. But based on a slew of recent 2026 Supreme Court judgments interpreting the Bharatiya Nagarik Suraksha Sanhita (BNSS), the apex court is sending a clear, unequivocal message: the procedural safeguards in the new code are not mere suggestions. They are mandatory gatekeeping provisions.

If you are a practicing lawyer, you can no longer afford to operate on CrPC muscle memory. The Supreme Court's latest interpretations of Section 223(1) BNSS (pre-cognizance hearings) and Section 193(9) BNSS (further investigation) are absolute game-changers, particularly for white-collar defense and PMLA matters.

The PMLA Game-Changer: Mandatory Pre-Cognizance Hearings

The most consequential development comes from the Supreme Court’s ruling on the intersection of the Prevention of Money Laundering Act (PMLA) and the BNSS. The Court held that where cognizance of a PMLA complaint is taken after the BNSS commenced, the accused is statutorily entitled to a pre-cognizance hearing under the first proviso to Section 223(1) BNSS.

Crucially, the Court clarified that this applies even if the Enforcement Directorate (ED) filed the prosecution complaint before the BNSS came into force. If the Special Judge takes cognizance post-BNSS without granting this hearing, the cognizance is vitiated in law.

"The mechanical rubber-stamping of ED prosecution complaints is now statutorily barred. The right to be heard before the court takes cognizance is a substantive safeguard, not a mere procedural formality."

Why this matters for your practice: Under the old CrPC regime, the ED would drop a voluminous prosecution complaint, and the Special Court would routinely take cognizance. Once cognizance was taken, the accused was summoned, often leading to immediate custody and the triggering of the draconian twin conditions for bail under Section 45 of the PMLA.

Now, defense counsel has a vital foot in the door. The first proviso to Section 223(1) BNSS forces the court to give the accused an opportunity to be heard before deciding whether to take cognizance. This is your chance to argue that the complaint lacks a prima facie case, that the ingredients of Section 3 PMLA are not met, or that there is no scheduled offence. If you have a pending PMLA complaint where cognizance hasn't been taken, you must immediately file an application asserting your right to be heard under Section 223(1).

Clipping Police Wings: The End of Unilateral "Further Investigation"

Equally disruptive is the Supreme Court's firm stance on Section 193(9) BNSS, the successor to the heavily abused Section 173(8) of the CrPC. The Court has explicitly ruled that police can no longer continue "further investigation" on their own whim; they must obtain prior leave of the court.

Under Section 173(8) CrPC, investigating agencies treated further investigation as an absolute prerogative. They would file a chargesheet to defeat default bail under Section 167(2) CrPC, and then keep the investigation "open" indefinitely. This allowed them to file endless supplementary chargesheets, keeping the sword of Damocles hanging over the accused and indefinitely delaying the framing of charges.

Why this matters for your practice: The Supreme Court has now shifted the power dynamic back to the Magistrate. Section 193(9) BNSS requires the police to justify why further investigation is needed. As defense counsel, you must now actively oppose any application for further investigation. If the police file a supplementary report without explicit, prior judicial permission, you must immediately move to have it struck from the record as void ab initio. The days of the police dictating the timeline of the trial are over—provided defense lawyers are vigilant enough to enforce this ruling.

Codifying Arnesh Kumar: Section 35(3) BNSS

Further reinforcing this anti-arbitrariness theme, the Supreme Court also reaffirmed that notice under Section 35(3) BNSS (the equivalent of Section 41A CrPC) is strictly mandatory before arresting an accused in offences punishable with up to seven years’ imprisonment.

While the ghost of Arnesh Kumar v. State of Bihar has guided courts for a decade, its codification into BNSS and the Supreme Court’s strict enforcement means Magistrates who authorize remand without verifying compliance with Section 35(3) are committing a jurisdictional error. When representing clients at the first remand hearing, your primary attack should not just be on the merits of the FIR, but on the procedural non-compliance of Section 35(3).

The Bottom Line

The transition from CrPC to BNSS was widely criticized as old wine in new bottles. However, the Supreme Court is seizing the opportunity to interpret the new provisions strictly against investigating agencies. By mandating pre-cognizance hearings in ED cases and stripping police of unilateral investigation powers, the Court is demanding a higher standard of procedural fairness.

For the defense bar, the strategy is clear: stop relying on substantive defenses alone. The procedural safeguards in the BNSS, as interpreted by the Supreme Court in 2026, are your sharpest weapons. Use them early, and use them aggressively.