In the Court of the Learned 17th Judicial
Magistrate,
Calcutta
Case No. : CNS/33/2025
In
the matter of :-
Vijay Ply % Boards, a proprietorship firm having its
office at DD-1, Narayanatala East, Baguihati, Kolkata – 700159, represented
through its proprietor Manoj Kumar Vijayvergia;
_________Complainant
-
Versus –
Kamal Choudhary, Proprietor Design Koncept, of 2A,
Banerjee Para Road, Karunamoyee, Tollygunge, Kolkata – 700041, and also at
Diamond City South, Tower -3, Flat no. 10E, 58, Mahatma Gandhi Road,
Karunamoyee, Tollygunge, Kolkata – 700041. .
__________Accused
Cause Shown on Pre-Cognizance Notice
The humble Petition of the above named alleged accused
person Kamal Choudhary, most respectfully;
Sheweth as under;
(1)
That the
Petitioner is in receipt of the Pre-Cognizance Notice, issued by the Learned
Court, which states as follows;
“WHEREAS the Complainant has filed the instant case
(Ref.: CNS/33/2025) and for which you are hereby directed to appear before this
Learned Court in person on 03/03/2025 at 10:30 A.M. along with relevant
documents supporting your contention as to why the cognizance should not be
taken against you, by this Learned Court.”
Photostat Copy of the said Pre-Cognizance Notice, with
the copy of the complaint made by the complainant is annexed herewith and
marked as Annexure – “A”, Collectively.
(2)
The said
Pre-Cognizance Notice has been served only with a copy of complaint made by the
Complainant herein before the Learned Court. But the said Pre-Cognizance Notice
doesn’t give any copy of the statements made by the Complainant and other
witnesses, ever deposed by them before the Learned Court, and the Documents
relied on by the Complainant. Therefore the substantial deposition of the
witnesses and the documents has not ever been served on the petitioner who is
the alleged accused person cited by the Complainant, herein.
(3)
The settled law with respect to
Section 200 CrPC 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.
(4)
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, Cognisance, 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 cognisance. 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 cognisance 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.
(5) But the manner, mode
and timing of this 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?
(6)
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 27th 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 27th 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 – “B”.
(7)
That in views
derived from the said CAV Order dated 27th 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 Petitioner is entitled
to get copy of 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
Petitioner 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 petitioner is not able to place his case before the Learned Court. The
Petitioner reserve his rights to answer or reply on the Complaint case lodged
by the Complainant, while the Petitioner will receive the copy of 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.
(8)
That unless,
the Learned Court direct the Bench Clerk to give the copy of 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, the Petitioner is highly
prejudice and suffer with irreparable loss and injury thereof.
(9)
That the
preponderance of the balance of convenience and inconveniences are favouring
the Petitioner, who is an alleged accused person cited by the Complainant, in
the present Complaint proceeding under Section
223 of BNSS, 2023.
(10)
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 direct the Bench Clerk to give the copy of 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 Petitioner herein, 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 Kamal
Choudhary, being the alleged accused person in the present Complaint case
lodged by the Complainant, made this application on receipt of the
Pre-Cognizance Notice. I am well conversant and acquainted with the material
facts. I Verify and sign this petition on 17th day of March’ 2025,
at the Bankshall Court Premises.
Affidavit
I, Kamal Choudhary, Proprietor Design Koncept, aged about
_____years, by faith Hindu, by Occupation Business, having office at Premises
being no. 2A, Banerjee Para Road, Karunamoyee, Tollygunge, Kolkata – 700041,
and also at Diamond City South, Tower -3, Flat no. 10E, 58, Mahatma Gandhi
Road, Karunamoyee, Tollygunge, Kolkata – 700041, do hereby
solemnly affirm and says as follows ;
1.
That I being the Petitioner named
above in the present application on receipt of the Pre-Cognizance Notice. I am
conversant and acquainted with the material facts. I am Competent to swear this
affidavit.
2.
That the content of paragraph no. 1,
& 2, are true to my knowledge and belief and the rests are my humble
submissions before the Learned Court.
That the above
statements are true to my knowledge and belief.
DEPONENT
Identified by me,
Advocate
Prepared
in my Chamber,
Advocate
Date
: 17th day of March’ 2025;
Place
: Bankshall Court, Kolkata
N O T A R Y
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