Punjab & Haryana High Court • Company Law • 2026:PHHC:091677
No Pre-Cognizance Hearing for SFIO Complaints under the Companies Act
The High Court holds that the Section 223 BNSS safeguard does not travel into a corporate-fraud prosecution built on an SFIO report — Vivo India Pvt. Ltd. v. SFIO.
By Akinchan Aggarwal, Advocate, Punjab & Haryana High Court | Published on Lawizard | CRM-M-10158-2026 (O&M) | Decided: 7 July 2026
When the new criminal codes came into force, one of the most talked-about safeguards was the proviso to Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — a brand-new right of the proposed accused to be heard before a Magistrate takes cognizance on a complaint. Unlike the old Section 200 CrPC regime, this pre-cognizance hearing is mandatory in complaint cases. But does it reach every prosecution simply because it begins with a document called a “complaint”?
In Vivo India Private Limited v. Serious Fraud Investigation Office (CRM-M-10158-2026), decided on 7 July 2026, Justice Subhas Mehla of the Punjab & Haryana High Court answered with a firm no. A prosecution complaint filed by the Serious Fraud Investigation Office (SFIO) under the Companies Act, 2013 — even though styled a “complaint in writing” — is in law a case instituted on a police report, and the proposed accused has no vested right to a pre-cognizance hearing under Section 223 BNSS.
⚖️ Key Takeaways at a Glance
- The pre-cognizance hearing under the proviso to Section 223 BNSS does not apply to SFIO prosecution complaints under the Companies Act, 2013.
- By Section 212(15) of the Act, the SFIO investigation report is deemed a police report under Section 173 CrPC / Section 193 BNSS — and Section 2(1)(h) BNSS excludes a police report from “complaint.”
- Cognizance is taken under Section 436(1)(d) read with Section 438 of the Companies Act — a self-contained special code that overrides the general BNSS to the extent of inconsistency.
- A Special Court of Sessions level is governed by Section 213 BNSS, not Section 223 (which speaks only of a Magistrate).
- The accused's hearing is inbuilt in the SFIO investigation and again available at the charge-framing stage — a pre-cognizance hearing would be a needless, repetitive delay.
Case Snapshot
| Case Title | Vivo India Private Limited v. Serious Fraud Investigation Office, Ministry of Corporate Affairs, Union of India |
| Case No. | CRM-M-10158-2026 (O&M) | Neutral Citation 2026:PHHC:091677 |
| Court | High Court of Punjab & Haryana at Chandigarh |
| Coram | Hon'ble Mr. Justice Subhas Mehla |
| Reserved / Decided | 9 April 2026 / 7 July 2026 |
| Key Provisions | Ss. 212(6), 212(15), 435, 436, 438, 439 Companies Act, 2013; Ss. 4, 5, 213, 223, 528 BNSS |
| Result | Petition under Section 528 BNSS dismissed; impugned order upheld |
The Question Before the Court
How the Dispute Arose
The SFIO filed a prosecution complaint before the Special Court, Gurugram, titled SFIO v. Vivo Mobile Communication Company Ltd. & 70 others, alleging offences under Sections 447, 7(5), 7(6) and 449 of the Companies Act, 2013, with Vivo India arrayed as accused no. 3. When arguments on cognizance were underway on 11 February 2026, Vivo India appeared and filed an application under the first proviso to Section 223 BNSS, claiming a right to be heard before cognizance. The Special Court (Additional Sessions Judge) dismissed that application, and Vivo India challenged the dismissal before the High Court under Section 528 BNSS.
The Rival Arguments
For Vivo India (petitioner)
Since Section 439(2) and the second proviso to Section 212(6) bar cognizance except on a “complaint in writing,” the SFIO case is a complaint case under Chapter XVI BNSS. Section 438 imports the CrPC/BNSS into Special Court proceedings, so the Section 223 safeguard applies. The Section 212(15) deeming fiction is limited to “framing of charges” — a post-cognizance stage — and cannot convert the case into a police-report case at the cognizance stage. Reliance was placed on the PMLA line of cases — Yash Tuteja, Tarsem Lal and Kushal Kumar Aggarwal — Section 46 PMLA being pari materia with Section 438.
For the SFIO (respondent)
The Companies Act is a self-contained code; by Sections 4(2) and 5 BNSS, special-law procedure prevails. Section 212(15) deems the SFIO report a police report under Section 173 CrPC / 193 BNSS, so the entire proceeding is a police-report case and the proviso to Section 223 (meant for private complaints with no prior investigation) has no application. The Special Court, being of Sessions-Judge level, is governed by Section 213 BNSS, not Section 223. The rationale of Sanjabij Tari (on the NI Act) extends to all special statutes.
The Court's Reasoning
1. The Companies Act is a self-contained code up to charge
Surveying Sections 212, 435, 436, 438 and 439, the Court held that the Act deals specifically with every stage — investigation, filing of the complaint, taking of cognizance and framing of charge — and therefore constitutes an exclusive, self-contained procedural code on those aspects. An SFIO investigation is fundamentally unlike an ordinary police investigation: it is ordered by the Central Government or Director, the accused and company officers are associated and examined on oath, the officer wields civil-court powers, and the report carries statutory evidentiary value and is subjected to a two-tier scrutiny (by the investigating officer and then the MCA/Central Government) before prosecution is launched.
2. The Section 212(15) deeming fiction is not confined to charge-framing
The Court rejected the “framing-of-charges only” reading of Section 212(15). Read with Section 436(1)(d) — under which the Special Court takes cognizance on perusal of the police report or the complaint — the deeming fiction places the SFIO report on the footing of a final report under Section 173 CrPC / 193 BNSS for the purpose of cognizance too. Once the legislature equates the report with a police report, the Court is bound to carry that fiction to its logical conclusion.
3. Special law prevails over general law
Applying generalia specialibus non derogant, the Court held that where a special statute lays down a distinct procedure, the general criminal law yields to the extent of inconsistency. Sections 4 and 5 of the BNSS themselves save special-law procedure, and Section 438 makes the BNSS applicable to Special Court proceedings only “save as otherwise provided” in the Act. As the Companies Act provides its own cognizance mechanism without any pre-cognizance notice, Section 223 stands excluded.
4. A Sessions-level Special Court is outside Section 223
By its express language, Section 223 governs only a Magistrate taking cognizance on complaint. A Special Court presided over by a Sessions Judge (Section 435(2)(a)) for serious offences like Section 447 cannot be read into that provision; it is governed by Section 213 BNSS read with Section 436(1)(d) of the Act, and takes cognizance directly without committal and without a pre-cognizance hearing.
5. Statutory complaints are not private complaints
Finally, the Court drew a sharp line between a private complaint (mere allegations, no prior investigation — the very situation the Section 223 safeguard was designed for) and a statutory prosecution complaint by the SFIO founded on a detailed investigation and MCA sanction. Importing a pre-cognizance notice into the latter would be a “repetitive exercise,” frustrate the object of speedy trial of complex corporate frauds, and defeat the very rationale of creating Special Courts.
The Holding
The High Court dismissed the petition and held:
✔ Prosecution complaints instituted by the SFIO under Section 212 of the Companies Act, 2013 are not governed by the proviso to Section 223 BNSS.
✔ The proposed accused has no vested right to a pre-cognizance hearing before the Special Court.
✔ The impugned order dated 11.02.2026 suffers from no illegality, perversity or jurisdictional error warranting interference under Section 528 BNSS.
Why This Judgment Matters
This is one of the first authoritative rulings mapping the new BNSS pre-cognizance safeguard onto special economic-offence statutes. For corporates and their officers facing SFIO prosecution, it closes a much-used delay tactic — the demand to be heard before cognizance — and confirms that the Companies Act's fraud prosecutions will move straight to cognizance on the report. Just as importantly, the Court carefully distinguished the PMLA line of Supreme Court authority (Yash Tuteja, Tarsem Lal, Kushal Kumar Aggarwal) on the ground that the PMLA has no equivalent of the Section 212(15) deeming fiction. The takeaway for practitioners: whether Chapter XVI's complaint-case safeguards apply under any special Act now turns on a close reading of that statute's scheme — not on the mere label “complaint.”
📄 Read / Download the Full Judgment
The complete judgment in Vivo India Pvt. Ltd. v. SFIO (CRM-M-10158-2026) is embedded below for reading and download.
Frequently Asked Questions (FAQ)
Q1. Is a pre-cognizance hearing mandatory for SFIO complaints under the Companies Act?
No. The proviso to Section 223 BNSS does not apply to SFIO prosecution complaints under the Companies Act, 2013, and the proposed accused has no right to be heard before the Special Court takes cognizance.
Q2. Why is an SFIO complaint treated as a police report?
Section 212(15) of the Companies Act deems the SFIO investigation report to be a police report under Section 173 CrPC (Section 193 BNSS), and Section 2(1)(h) BNSS excludes a police report from the meaning of “complaint.”
Q3. Does the Companies Act override the BNSS?
To the extent of inconsistency, yes — as a special, self-contained code. Cognizance is taken under Section 436(1)(d) read with Section 438 of the Act; Sections 4 and 5 BNSS preserve the special-law procedure.
Q4. Does the accused get any hearing at all?
Yes. The hearing is built into the SFIO investigation (statements on oath, association of the accused), and a full opportunity is available at the charge-framing stage. Only the extra pre-cognizance hearing is excluded.
Cases Referred
- Yash Tuteja & Anr. v. Union of India, (2024) 8 SCC 465
- Tarsem Lal v. Directorate of Enforcement, Jalandhar, (2024) 7 SCC 61
- Kushal Kumar Aggarwal v. Directorate of Enforcement, 2025 INSC 760
- Sanjabij Tari v. Kishore S. Borcar & Anr., 2025 INSC 1158
- N. Sampath Ganesh v. Union of India, 2020 SCC OnLine Bom 782
- Deloitte Haskins & Sells LLP v. Union of India, 2025 SCC OnLine NCLAT 463
About the Author
Akinchan Aggarwal
Advocate, Punjab & Haryana High Court | B.A. Hons. (Social Sciences), LL.B, LL.M (Gold Medalist) | UGC NET | Co-founder, Lawizard.
Tags: SFIO pre-cognizance hearing, Section 223 BNSS, Companies Act 2013, Section 212(15) deeming fiction, Vivo India v SFIO, Punjab and Haryana High Court, Section 447 fraud, Special Court, police report, corporate crime, Lawizard.
