Is pre-cognizance hearing mandatory for SFIO complaints filed under Companies Act? Supreme Court to decide

The Supreme Court on Monday sought the Serious Fraud Investigation Office (SFIO)'s response on a plea challenging a Punjab and Haryana High Court judgment which held that persons accused in complaints filed by the SFIO under the Companies Act are not entitled to a pre-cognizance hearing [Vivo Mobile India v. SFIO].

A Bench of Justices PV Sanjay Kumar and Sanjeev Sachdeva issued notice on Vivo India's appeal and stayed the proceedings before a Gurugram special court where SFIO's complaint against Vivo is currently pending.

Vivo's appeal before the top court challenges a July 7 judgment of the Punjab and Haryana High Court which held that prosecution complaints filed by the SFIO under the Companies Act stand on a different footing from private complaints filed by individuals and are therefore, not governed by the proviso to Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

The case arose after Vivo India moved the High Court against an order of a Gurugram special court refusing its request for a pre-cognizance hearing in a prosecution complaint filed by the SFIO following an investigation under Section 212 of the Companies Act.

The High Court held that the complaint was before a special court constituted under the Companies Act and not a Magistrate taking cognisance on a private complaint under the BNSS. Therefore, it concluded that the proviso to Section 223 of the BNSS did not apply.

The High Court held that a person accused in an SFIO complaint has no vested right to seek a hearing before a special court takes cognisance of the complaint.

“Consequently, it is held that prosecution complaints instituted by the SFIO pursuant to investigation under Section 212 of the Act, 2013 are not governed by the proviso to Section 223 of the BNSS, and the proposed accused have no vested right to claim a pre-cognizance hearing before the Special Court,” the High Court ruled.

It reasoned that the Companies Act lays down a separate statutory procedure for prosecution following an SFIO investigation and that Sections 4 and 5 of the BNSS preserve procedures prescribed under special laws.

The High Court also observed that Section 436 of the Companies Act does not require a special court to grant a pre-cognizance hearing before taking cognisance of an SFIO complaint.

“A bare reading of Section 436(1)(d) reflects that there is no statutory requirement of affording a pre-cognizance hearing to the accused before taking cognizance upon a complaint,” the High Court said.

Hence, it rejected Vivo's plea.

Aggrieved by this, Vivo filed the present plea before the Supreme Court.

Vivo was represented by Senior Advocates Abhishek Manu Singhvi and Siddharth Agarwal, along with advocates VP Singh, Priyank Ladoia, Kshitiz Rao, Arjun Narang, Puneet Dhanoa, Ananya Singh, Priyansha Sharma and Mayank Pandey.

SFIO was represented by Additional Solicitor General Vikramjit Banerjee.