IN THE COURT
OF THE LEARNED ADDITIONAL CHIEF JUDICIAL MAGISTRATE, BARUIPUR,
SOUTH 24 PARGANAS
G.R. Case No.
4609 of 2023
Arising out of Narendrapur Police
Station Case/FIR No. 733 dated 10.08.2023
Charge-Sheet No. 869/2023 dated
30.09.2023
Under Sections
447/323/379/504/34 of the Indian Penal Code, 1860
In the matter of;
The State of West Bengal
...
De jure Complainant
Sri Dulal Chandra Naskar,
Son of Late Lalit Mohan Naskar,
residing at Tegharia, Narendrapur Station Road,
P.S. – Narendrapur, Kolkata – 700103,
District – South 24 Parganas.
...
De facto Complainant/Petitioner
-Versus-
NARAZI
Petition
1.
Ananto Kumar Mondal, Son of Late Gonesh Mondal;
2.
Dibyendu Paul @ Dipendra Paul, Son of Late
Debarata/Devendra Paul;
3.
Subrata Guha, Son of Late Sushil Chandra Guha;
4.
Subhendu Sinha, Son of Dibyendu Sinha;
All residing at
Sonargaon Housing Cooperative Society, P.O. – R.K. Pally, P.S. – Narendrapur, Kolkata
– 700150.
...
Accused Persons
NARAZI / PROTEST PETITION
Against the Charge-Sheet/Police Report No. 869/2023 dated 30.09.2023 and
the improper exclusion of accused Subrata Guha and Section 379 IPC
The humble petition of the Petitioner above-named, most respectfully;
SHEWETH AS UNDER;
1. That the present
Narazi/Protest Petition is being preferred by the Petitioner, who is the de
facto complainant and victim of the occurrence, against the police
report/Charge-Sheet No. 869/2023 dated
30.09.2023 submitted in connection with Narendrapur Police Station FIR No. 733 dated 10.08.2023, whereby
the Investigating Agency has mechanically submitted charge-sheet only under
Sections 447/323/504/34 IPC
against accused Nos. 1, 2 and 4, while inexplicably omitting accused No. 3,
namely Subrata Guha, and has
further failed to submit charge-sheet under Section 379 IPC, despite the specific and categorical allegation
that a sum of ₹5,000/- was forcibly taken from the pocket of the Petitioner during the
occurrence.
2. That the Petitioner
had lodged the complaint setting out the complete facts and circumstances of
the occurrence and specifically named all the four accused persons, namely a.
Ananto Kumar Mondal; b. Dibyendu Paul @ Dipendra Paul; c. Subrata Guha; and d.
Subhendu Sinha. The names, parentage and addresses of all the accused persons
were specifically disclosed in the complaint and were thereafter incorporated
in the FIR.
3. That the allegations
made by the Petitioner disclose that the accused persons, acting in furtherance
of their common intention, unlawfully entered into the plot/property of the
Petitioner situated at Mouza –
Teghoria, P.S. – Narendrapur, District – South 24 Parganas, despite
having no right, title or interest over the said property, and attempted to
interfere with and disturb the peaceful possession of the Petitioner.
4. That the Petitioner
had specifically alleged that the accused persons were acting in concert and
had entered into the property on 22.07.2023
at about 11:00 A.M., armed with dangerous weapons, with the intention of
forcibly grabbing and taking control over the property of the Petitioner.
5. That when the
Petitioner reached the spot and protested against such illegal entry and
interference, the accused persons became furious and adopted an aggressive and
hostile attitude towards the Petitioner.
6. That thereafter the
accused persons abused the Petitioner in filthy and insulting language and,
acting jointly and in furtherance of their common intention, assaulted the
Petitioner by means of fists and blows and kicks and forcibly caused him to
fall to the ground.
7. That the occurrence
did not stop with the assault. During the said occurrence, the accused persons
forcibly snatched/took away cash
amounting to ₹5,000/- from the pocket of the Petitioner.
8. The said allegation
was specifically stated in the original complaint and was also incorporated in
the police case. The allegation is therefore not a subsequent improvement or
afterthought.
9. That the Petitioner
further specifically alleged that the accused persons attempted to throttle the
Petitioner and thereby created a serious apprehension in the mind of the
Petitioner that the accused persons intended to cause his death.
10.
The
Petitioner was compelled to raise an alarm and persons from the locality
arrived at the place of occurrence, as a result whereof the Petitioner could be
rescued from the accused persons.
11.
That
thereafter the accused persons left the place of occurrence after taking away
the said amount of ₹5,000/-.
Thus, the allegations made in the complaint disclose, amongst other offences,
the ingredients of theft, as the
property/cash belonging to the Petitioner was dishonestly taken out of his
possession without his consent.
12.
That
the Petitioner approached the local police station and also caused a written
complaint to be sent by Registered Post on 28.07.2023 and further lodged a written complaint before the
Superintendent of Police, Baruipur, through Registered Post on the same date,
requesting appropriate legal action.
13.
That
despite the Petitioner having approached the police authorities and having
specifically disclosed the entire occurrence, the Petitioner was advised to
approach the Learned Court for appropriate relief.
14.
That
thereafter, upon the Court complaint and the allegations made therein, Narendrapur Police Station FIR No. 733 dated
10.08.2023 came to be registered for offences punishable under Sections 447, 323, 379, 504 and 34 IPC against
all the four named accused persons.
15.
That
the registration of the FIR itself demonstrates that the allegations concerning
unlawful entry, assault, theft, abusive language and common intention were
considered sufficiently serious to warrant investigation.
16.
That
during investigation, the Investigating Officer claims to have visited the
place of occurrence, examined witnesses and recorded statements under Section
161 Cr.P.C., served notice upon the Petitioner and also served notice under
Section 41A Cr.P.C. upon the FIR-named accused persons.
17.
That
the accused persons allegedly complied with the notices and surrendered before
the Learned Court and were released on bail.
18.
That,
however, after investigation, the Investigating Officer submitted Charge-Sheet No. 869/2023 dated 30.09.2023,
alleging that a prima facie case under Sections 447/323/504/34 IPC had been established only against three number
of accused namely (1) Ananta Kumar Mondal; (2) Dibyendu @ Dipendra Paul; and
(3) Subhendu Sinha.
19.
That
most surprisingly and inexplicably, the Investigating Officer has excluded the
name of Subrata Guha, although i.
his name was specifically mentioned in the original complaint; ii. his name was
specifically mentioned in the FIR; iii. he was one of the four persons against
whom the investigation was conducted; and iv. the prosecution case throughout
the investigation was that the four accused persons had jointly participated in
the occurrence.
20.
That
the Investigating Officer has stated in the charge-sheet as “No sufficient
evidence could be established against Subrata Guha...”, and has consequently
prayed for his discharge. The said conclusion is wholly unsustainable and
premature, particularly when the materials collected during investigation have
not been properly evaluated from the standpoint of the Petitioner and the
complete occurrence alleged in the FIR.
21.
That
the Investigating Officer has failed to disclose any cogent, convincing or
legally sustainable reason as to why the specific role attributed to Subrata Guha in the FIR and complaint
has been discarded. A mere statement that “no sufficient evidence could be
established” cannot, by itself, justify exclusion of a person who was
specifically named as an offender from the very inception of the criminal case.
22.
That
the omission of Subrata Guha from the charge-sheet is particularly serious
because the prosecution case is founded upon Section 34 IPC, namely, the participation of the accused persons
pursuant to their common intention. When the allegation itself is of a joint
and concerted occurrence, the role and participation of each named accused
required proper and independent investigation.
23.
That
the Investigating Officer has also failed to appreciate that direct participation of every accused in each
individual act is not necessarily required for attracting Section 34 IPC,
if the materials disclose participation in furtherance of a common intention. Therefore,
the Investigating Officer ought to have examined the entire occurrence
collectively and not isolated the role of one accused without disclosing the
evidentiary basis for such exclusion.
24.
That
the most glaring illegality in the impugned police report is the omission of Section 379 IPC. The original
complaint specifically alleged that during the assault the accused persons
forcibly took away cash of ₹5,000/- from
the pocket of the Petitioner.
25.
The
charge-sheet itself reproduces the substance of the allegation that the accused
persons “took away Cash Rs. 5,000/- from the pocket of complainant.”
26.
That
having reproduced the allegation of removal of cash from the pocket of the
Petitioner, the Investigating Officer has failed to explain why no offence
under Section 379 IPC has been made out. The said omission is not a minor
technical defect. It relates to a distinct substantive allegation constituting
an independent offence.
27.
That
the investigation appears to have concentrated only upon the alleged unlawful
entry, assault and abuse, while completely failing to investigate the
allegation of forcible removal of the Petitioner's cash.
28.
The
Investigating Officer ought to have investigated, inter alia:
a. the exact manner
in which the ₹5,000/- was removed;
b. the presence of the accused persons at the spot;
c. the witnesses who arrived at the place of occurrence;
d. the circumstances immediately preceding and following the removal of cash;
e. the statements of the persons who rescued the Petitioner; and
f. all other surrounding circumstances connecting the accused persons with the
removal of the said amount.
29.
That
the failure to investigate the allegation of theft cannot operate to the prejudice
of the victim/de facto complainant. The police cannot defeat a substantive
allegation merely by omitting the corresponding penal provision from the
charge-sheet without conducting a proper investigation into the factual
allegation.
30.
That
the Petitioner respectfully submits that the Court is not bound to mechanically
accept the opinion of the Investigating Officer as to the persons against whom
a charge should be brought. The police report is an opinion/result of
investigation and the ultimate judicial determination as to whether the
materials disclose commission of an offence and by whom rests with the Learned
Magistrate.
31.
That
the Hon'ble Supreme Court has repeatedly recognised the right of an
informant/de facto complainant to object to an adverse or incomplete police
report and has recognised the jurisdiction of the Magistrate to consider the
materials independently and to take appropriate action in accordance with law. The
Supreme Court has specifically recognised that a protest petition can be filed
by an informant/injured person challenging the police investigation and the
exclusion of accused persons.
32.
That
the Hon'ble Supreme Court has further held that the Magistrate is not bound to
accept the police report and may, depending upon the circumstances, direct
further investigation or proceed in accordance with law upon the
complaint/protest petition.
33.
That
under the present statutory scheme, Section 193 BNSS, 2023 deals with the
report of the police officer on completion of investigation and expressly
preserves the power of further
investigation even after a police report has been forwarded to the
Magistrate.
34.
That
Section 210 BNSS, 2023 recognises the power of the Magistrate to take
cognizance upon a complaint of facts constituting an offence as well as upon a
police report.
35.
That,
however, since the present FIR, investigation and charge-sheet were initiated
and completed in the year 2023,
prior to the commencement of the BNSS, the Petitioner respectfully submits that
the applicable procedural regime is to be determined in accordance with the saving provision contained in Section 531
BNSS, 2023, whereby pending investigation, inquiry, trial or application
immediately before commencement of the BNSS are to continue in accordance with
the Code of Criminal Procedure, 1973.
36.
That
accordingly, the present petition may appropriately be treated as a Narazi/Protest Petition against the police
report/charge-sheet under the applicable provisions of the Code of Criminal
Procedure, 1973, read with the corresponding principles under the BNSS, 2023
and its saving provision, so that the substantive rights of the
Petitioner are fully protected.
37.
That
the Petitioner submits that the present case is not a case where the police
have submitted a complete and proper charge-sheet after fairly investigating
all allegations. Rather, it is a case of partial charge-sheet, wherein one of the FIR-named accused has
been excluded and one of the specifically alleged offences has been omitted
without satisfactory investigation or explanation.
38.
That
the Petitioner apprehends that if the police report is accepted in its present
form, the Petitioner would suffer serious prejudice and the accused persons
would obtain an undue advantage from the incomplete investigation.
39.
That
the Petitioner is the victim of the occurrence and has personal knowledge of
the incident. His specific allegation regarding the presence and participation
of all the accused persons cannot be brushed aside without judicial
consideration.
40.
That
the alleged occurrence was committed by the accused persons acting together and
the surrounding circumstances, the manner of entry, the assault, the abuse, the
removal of cash and the subsequent threats are required to be considered as a
complete chain of events rather than as isolated incidents.
41.
That
the investigation has also failed to properly consider the allegation that the
accused persons thereafter threatened the Petitioner with dire consequences and
warned him not to initiate legal proceedings against them. Such subsequent
conduct is relevant surrounding material for appreciating the circumstances of
the occurrence and the conduct of the accused persons.
42.
That
the Petitioner respectfully submits that the fact that the accused persons were
served with notices and subsequently surrendered before the Learned Court does
not amount to proof of their innocence, nor does compliance with a notice under
Section 41A Cr.P.C. constitute a finding that an accused was uninvolved in the
occurrence.
43.
That
the Petitioner further submits that the prayer of the Investigating Officer
seeking the discharge of accused Subrata
Guha is not binding upon this Learned Court. The Investigating Officer's
conclusion is only an investigative opinion and the Learned Court is required
to independently consider the materials available on record.
44.
That
the Petitioner therefore prays that this Learned Court may kindly call for and
peruse the entire Case Diary,
the statements of witnesses recorded during investigation, the documents
collected by the Investigating Officer and all other materials forming part of
the investigation, before accepting the police report insofar as it excludes
Subrata Guha and Section 379 IPC.
45.
That
in the interest of justice and for a fair determination of the criminal case,
the Learned Court may be pleased to direct further investigation into the role of accused Subrata Guha and
into the allegation concerning removal of ₹5,000/- from the
possession of the Petitioner.
46.
That
the Petitioner further submits that the investigating agency ought to be
directed to investigate the following specific aspects;
i. the participation
of Subrata Guha in the
occurrence;
ii. the presence and
participation of all four accused persons at the place of occurrence;
iii. the allegation
concerning removal of ₹5,000/- from the pocket of the
Petitioner;
iv. the witnesses who
arrived at the spot and rescued the Petitioner;
v. the statements of
independent/local witnesses;
vi. the circumstances
surrounding the alleged assault and throttling;
vii. the threats
allegedly extended to the Petitioner after the occurrence; and
viii. any other
material circumstance necessary for arriving at a just conclusion.
47.
That
the Petitioner further submits that if, upon consideration of the materials
already collected and/or after further investigation, sufficient materials are
found against Subrata Guha and/or with respect to the offence of theft,
appropriate further/fresh police report may be directed to be placed before
this Learned Court in accordance with law.
48.
That
the Petitioner craves leave to submit that the omission of an offence from the
charge-sheet does not prevent the Learned Court from considering the materials
on record and proceeding in accordance with law where the ingredients of the
offence are disclosed.
49.
That
the Petitioner further craves leave to rely upon the original complaint, FIR,
statements of witnesses, documents and all other materials forming part of the
case record and reserves his right to place such further materials before this
Learned Court as may be permissible in law.
50.
That
the present Protest Petition is being filed bona fide and in the interest of
justice, solely for the purpose of ensuring that the investigation and
prosecution of the actual offenders are not frustrated by an incomplete or
defective police report.
51.
That
unless appropriate orders are passed by this Learned Court, the Petitioner
shall suffer grave and irreparable prejudice, whereas no prejudice would be
caused to the accused persons if the investigation is directed to be completed
fairly and in accordance with law.
52.
The
Petitioner prefers the present Narazi/Protest Petition, inter alia, on the
following grounds;
GROUNDS
I.
For that the charge-sheet is incomplete and
defective,
inasmuch as one of the FIR-named accused, namely Subrata Guha, has been omitted
without adequate or cogent reasons;
II.
For that the allegation against Subrata Guha was
present from the very inception, and therefore his exclusion cannot be
treated as a mere subsequent dispute regarding implication;
III.
For that the charge-sheet itself records the
allegation that all four accused persons entered the property, assaulted the
Petitioner, abused him and took away ₹5,000/-;
IV.
For that Section 379 IPC has been inexplicably
omitted,
despite a specific allegation of removal of ₹5,000/- from the
pocket of the Petitioner;
V.
For that the allegation of theft required
independent investigation,
which has not been demonstrated from the charge-sheet;
VI.
For that the principle of common intention under
Section 34 IPC has not been properly appreciated while considering the role of Subrata
Guha;
VII.
For that the Investigating Officer cannot
conclusively determine the guilt or innocence of an accused, and his opinion
regarding insufficient evidence is subject to judicial scrutiny;
VIII.
For that the Learned Magistrate is not bound to
mechanically accept the police report, and is competent to consider the
materials available on record and the objections raised by the informant/de
facto complainant;
IX.
For that further investigation is permissible even
after submission of the police report, and is particularly warranted where
the investigation appears incomplete on material aspects. Section 193(9) BNSS
expressly recognises further investigation after submission of the police report;
X.
For that the right of the informant/injured person
to file a protest petition is recognised in law, particularly where the police report
excludes persons named in the FIR or fails to properly investigate material
allegations;
XI.
For that the ends of justice require a complete,
fair and effective investigation into the role of all persons named in
the FIR and into every offence disclosed by the factual allegations;
53.
That
this application is made bonafide and in the interest of administration of
Justice.
In the premises
aforesaid, it is therefore most respectfully prayed that Your Honour may
graciously be pleased to;
a)
receive and take on record the present Narazi/Protest
Petition filed by the Petitioner/de facto complainant against Charge-Sheet
No. 869/2023 dated 30.09.2023
arising out of Narendrapur P.S. FIR No.
733 dated 10.08.2023;
b)
call for and peruse the entire Case
Diary, FIR, complaint, statements of witnesses, documents and other
materials collected during investigation;
c)
be pleased to not accept the police
report/charge-sheet in its present form, insofar as the same excludes
accused Subrata Guha and omits
the offence under Section 379 IPC;
d)
be pleased to take cognizance of all offences disclosed from the materials on
record, including Sections 447, 323,
379, 504 and 34 IPC, against all persons against whom sufficient
materials are found;
e)
in the alternative, and/or in addition thereto, be pleased to direct further investigation into the role of
accused Subrata Guha and into
the allegation concerning the forcible removal/snatching of ₹5,000/- from the pocket of
the Petitioner;
f)
be pleased to direct the Investigating Agency to submit an appropriate further report/supplementary charge-sheet
upon completion of such further investigation, in accordance with law;
g)
be pleased to consider the present Protest Petition as a complaint/proceeding
in accordance with law, if this Learned Court is of the opinion that the
materials warrant such course;
h)
be pleased to issue appropriate process against accused Subrata Guha if sufficient materials are found against him;
i)
be pleased to take such further and/or other action against the accused persons
and in respect of such other offences as may be disclosed from the materials on
record and as may be permissible in law;
j)
pass such other or further order/orders as Your Honour may deem fit and proper
in the interest of justice.
And
for this act of kindness, the Petitioner as in duty bound shall ever pray.
VERIFICATION
I,
Dulal Chandra Naskar, son of
Late Lalit Mohan Naskar, residing at Tegharia, Narendrapur Station Road, P.S. –
Narendrapur, Kolkata – 700103, District – South 24 Parganas, the Petitioner/de
facto complainant above-named, do hereby verify that the statements made in
paragraphs 1 to 47 hereinabove are true and correct to my knowledge and belief,
based on the records of the case and information received, and that I have not
suppressed any material fact.
Verified
at Baruipur on this ____ day of __________, 2026.
__________________________
Dulal Chandra Naskar
Petitioner/De facto Complainant
AFFIDAVIT
I, Dulal Chandra Naskar,
son of Late Lalit Mohan Naskar, aged about 59 years, by faith Hindu, by
Occupation Business, residing at Tegharia, Narendrapur Station Road, P.S. –
Narendrapur, Kolkata – 700103, District – South 24 Parganas, do hereby solemnly
affirm and state as follows;
1. That I am the De facto Complainant/Petitioner
in the above-mentioned case and am fully acquainted with the facts and
circumstances of the case and, as such, competent to swear this Affidavit.
2. That I have filed the
accompanying Narazi/Protest
Petition against Charge-Sheet No. 869/2023 dated 30.09.2023,
submitted by the Investigating Officer in connection with Narendrapur Police Station FIR
No. 733 dated 10.08.2023.
3. That the police report, insofar
as it excludes accused Subrata Guha and omits the offence under Section 379
IPC, is therefore incomplete and does not correctly reflect the facts of the
occurrence.
4. That I have therefore filed the
Narazi/Protest
Petition before this Learned Court seeking appropriate judicial
consideration of the police report and the materials collected during
investigation.
5. That the statements made in the
Narazi/Protest Petition may be treated as part and parcel of this Affidavit and
are not repeated herein for the sake of avoiding unnecessary repetition.
6. That I say that the present
Affidavit is made bona fide and in the interest of justice.
DEPONENT
Identified
by me,
Advocate
No comments:
Post a Comment