Application on Pre-Cognizance Notice

 

In the Court of the Learned Judicial Magistrate, Baruipur,

South 24 Parganas

 

Complaint Case No. : 349 of 2024

 

                                                In the matter of :-

 

Sri Subhro Ghosal, Son of Uday Sankar Ghosal, aged about 41 years, residing at Premises being No. 331, Jyotish Roy Road, Kolkata - 700053, Police Station – Jadavpur, District – South 24 Parganas, and also at “Appayan Apartment” Ground Floor, Flat-GC, Premises no. 108/11/(50), Purbachal Road (North), Haltu, Police Station – Kasba, Kolkata - 700078, Mobile No.: 9874077772, Email : subhro.ghosal@gmail.com;

                   _________Complainant

 

-      Versus –

 

Subhadeep Mazumder, Son of Sri Manik Ranjan Majumder, residing at Premises being No. 2949, Kalyani Apartment, Flat 3B, Garia Garden, Post Office Building Garia Garden, Police Station – Narendrapur, Kolkata – 700084, District South 24 Parganas. Mobile No. 9830786126, Email : thebreathingcelluloid@gmail.com;

 

                   __________Accused

 

Application on Pre-Cognizance Notice;

 

The humble Petition of the above named Complainant, most respectfully;

 

Sheweth as under;

 

(1)  That the Complainant lodged an application under Section 223 of the Bharatiya Nagarik Suraksha Sanhita’ 2023 (formerly Section 200 Cr.P.C.), for an Offences committed to be punishable under Section 63 & 65 of the Copyright Act, 1957, read with Section 66 of the Information Technology Act’ 2000 amended in 2008, as well as in terms of Section 316, 336, 338, 303, & 318(4), of The Bharatiya Nyaya Sanhita, 2023, by the Accused Person, before the Learned Court.

 

(2)  The settled law with respect to Section 200 Cr.P.C. was as in a complaint case (private prosecution) an accused person does not come into the picture till process(summons or warrants) is issued. And process, we all understand, is issued after the judge examines the complainant, records what is known as pre-summoning evidence (PSE) & finds a prima facie case in favour of the Complainant and sufficient grounds for believing that an offence has taken place and accused has committed that offence. This is essentially a matter between the court and the Complainant. The accused has no locus standi to appear and argue before he or she is summoned in the case. Though being summoned in a criminal case – by itself – is a serious matter, this does not prejudice the accused who gets the chance to put forth his/her case after cognizance and earn an exoneration. There are several avenues for this. The accused may, for instance, challenge the summoning order in a revision petition. The accused may also apply for quashing of the case to the High Court under Section 482 Cr.P.C. Further, the accused may take his chances and argue for discharge before the same court, if the matter is not worthy of being taken to trial. This was the law; well, until now.

 

(3)  Section 223 of the BNSS (which replaces the earlier S.200 CrPC), now in force in all its glory, has added an interesting (and potentially problematic!) proviso. It reads: 

 

 

 

 

Focus on the proviso;

 

It’s clear that – now – cognizance of an offence on a “complaint” cannot be taken by the Magistrate without giving the accused an opportunity of being heard.

 

Now, for those who arrived late, Cognizance, we all understand, connotes the process of : application of judicial mind by the court to the facts stated in a complaint or police report or information received – with a view to taking further steps.

 

It is clear that – now – the provision envisages issuance of a notice before taking of cognizance. This effectively means that for complaints under BNSS, the Judicial Magistrate must give the accused – or more appropriately the proposed accused – an opportunity of being heard prior to cognizance i.e. prior to application of judicial mind.

 

Giving the accused an opportunity to be heard even before cognizance is taken was unheard-of in a criminal proceeding until now.

 

The ostensible intent appears to be to give the accused an additional opportunity to be heard & possibly to reduce chances of false implication & to allow accused persons to avoid being summoned in false criminal cases.

 

(4)  But the manner, mode and timing of the notice is not clear. There are serious doubts as to whether this notice to the proposed accused is to be issued after PSE or before. Is it to be issued the moment the complaint is received and registered, or after some basic inquiry into its merit?

 

(5)  That Hon’ble High Court of Karnatka at Bengaluru, decided in Criminal Petition No. 7526 of 2024 {Sri Basanagouda R. Patil (Yatnal), - Versus – Sri Shivananda S. Patil} vide CAV Order dated 27^th day of September, 2024, by Hon’ble Mr. Justice M. Nagaprasanna, which provide clarity on the Pre Cognizance Notice to the Accused as follows;

 

(a)  Proviso to sub-section (1) of Section 223 of the BNSS mandates  that a Magistrate while taking cognizance of an offence, on a  complaint, shall examine upon oath, the complainant and the  witnesses present if any and reduce it into writing. The proviso further mandates that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. Section 227 of the BNSS deals with issuance of process which is akin to Section 204 of the Cr.P.C. This stage is yet to arrive in the case at hand.

 

(b)  The obfuscation generated in the case at hand is with regard to interpretation of Section 223 of the BNSS, as to whether on presentation of the complaint, notice should be issued to the accused, without recording sworn statement of the complainant, or notice should be issued to the accused after recording the sworn statement, as the mandate of the statute is, while taking cognizance of an offence the complainant shall be examined on oath. The proviso mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.  

 

(c)  To steer clear the obfuscation, it is necessary to notice the language deployed therein. The Magistrate while taking cognizance of an offence should have with him the statement on oath of the complainant and if any witnesses are present their statements.  The taking of cognizance under Section 223 of the BNSS would come after the recording of the sworn statement, at that juncture a notice is required to be sent to the accused, as the proviso mandates grant of an opportunity of being heard.  

 

(d)  Therefore, the procedural drill would be this way:  

 

A complaint is presented before the Magistrate under Section 223 of the BNSS; on presentation of the complaint, it would be the duty of the Magistrate / concerned Court to examine the complainant on oath, which would be his sworn statement and examine the witnesses present if any, and the substance of such  examination should be reduced into writing. The question of taking of cognizance would not arise at this juncture. The magistrate has to, in terms of the proviso, issue a notice to the accused who is given an opportunity of being heard. Therefore, notice shall be issued to the accused at that stage and after hearing the accused, take cognizance and regulate its procedure thereafter.

 

(e)  The proviso indicates that an accused should have an opportunity of being heard. Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to the  accused in terms of proviso to sub-section (1) of Section 223 of the  BNSS shall append to it the complaint; the sworn statement;  statement of witnesses if any, for the accused to appear and  submit his case before taking of cognizance. In the considered view of this Court, it is the clear purport of Section 223 of BNSS, 2023.  

 

(f)   The moment complaint is filed notice is issued to the accused. This procedure is erroneous.

 

Photostat Copy of CAV Order dated 27^th day of September, 2024, by Hon’ble Mr. Justice M. Nagaprasanna, Hon’ble High Court of Karnatka at Bengaluru, decided in Criminal Petition No. 7526 of 2024 {Sri Basanagouda R. Patil (Yatnal), - Versus – Sri Shivananda S. Patil}, is annexed herewith and marked as Annexure – “A”.

 

(6)  That in views derived from the said CAV Order dated 27^th day of September, 2024, by Hon’ble Mr. Justice M. Nagaprasanna, Hon’ble High Court of Karnatka at Bengaluru, decided in Criminal Petition No. 7526 of 2024 {Sri Basanagouda R. Patil (Yatnal), - Versus – Sri Shivananda S. Patil}, the Complainant is entitled for the sworn statement;  statement of witnesses if any, in the present complaint case, with documents relied on by the complainant or annexed ever with the petition of complaint, to the accused person to appear and  submit his case before taking of cognizance, in terms of the prescribed provisions enshrined under the clear purport of Section 223 of BNSS, 2023. Therefore in absence of any copy of the sworn statement; statement of witnesses if any, in the present complaint case, the accused person may  not able to place his case before the Learned Court to argue at the pre-cognizance stage of the present case.

 

(7)  That unless, the Learned Court arrange to gate the sworn statement;  statement of witnesses if any, in the present complaint case, with documents relied on by the complainant or annexed ever with the petition of complaint, at the pre-cognizance stage of the present complaint case, the Complainant will be highly prejudice and suffer with irreparable loss and injury thereof.

 

 

 

 

 

(8)  That the preponderance of the balance of convenience and inconveniences are favouring the Complainant, in the present Complaint proceeding under Section 223 of BNSS, 2023.

 

(9)  That this application is made bonafide and in the interest of administration of Justice.

 

It is therefore prayed that your Honour would graciously be pleased to allow this application and to gate the sworn statement; statement of witnesses if any, in the present complaint case, with documents relied on by the complainant or annexed ever with the petition of complaint, at the pre-cognizance stage of the present complaint case, in the interest of administration of Justice, and or to pass such other necessary order or orders as your Honour may deem, fit, and proper for the end of Justice.

 

And for this act of kindness, the Petitioner as in duty bound shall ever pray.

 

Verification

 

I, Subhro Ghosal, being the Complainant in the present Complaint case. I am acquainted and conversant with the material facts as stated in the Complaint. I verify and sign this application on 12^th the day of March’ 2025, at Baruipur Criminal Court.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Affidavit

 

I, Subhro Ghosal, Son of Uday Sankar Ghosal, aged about 41 years, residing at Premises being No. 331, Jyotish Roy Road, Kolkata - 700053, Police Station – Jadavpur, District – South 24 Parganas, and also at “Appayan Apartment” Ground Floor, Flat-GC, Premises no. 108/11/(50), Purbachal Road (North), Haltu, Police Station – Kasba, Kolkata - 700078, do hereby solemnly affirm and says as follows;

 

1.   I am the Complainant in the present Complaint instituted by me against the Accused. I am acquainted and conversant with the material facts. I am competent to swear this affidavit.

 

2.   The statements made in the paragraph no. 1, is true to the best of my knowledge and belief and the rests are my humble submissions before the Learned Court.

 

The statements are true to the best of my knowledge and belief.

 

 

 

DEPONENT

Identified by me,

 

Advocate

 

Prepared in my chamber,

 

 

Advocate

Date : 12^th day of March’ 2025;

Place : Baruipur Court;

 

 

 

 

 

 

In the Court of the Learned Judicial Magistrate, South 24 Parganas

 

 

Complaint Case No. 349 of 2025

                  

 

                                                          In the matter of ;

Sri Subhro Ghosal,

__________Complainant

 

-          Versus –

 

Subhadeep Mazumder,

                             _______Accused

 

 

 

 

 

Application on Pre-Cognizance Notice;

 

                                          

 

 

 

 

Advocate – on – Record for the Complainant;

 

Sanjib Saha, Advocate

High Court Calcutta

Chamber : P-16, Purbasha Pally, Dr. A.K. Paul Road, Kolkata – 700034, Mobile No. 9051570268, 7003781930, Email : sanjibsaha.smc@gmail.com