Cause Shown on Pre-Cognizance Notice

 

In the Court of the Learned 17^th 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 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 – “B”.

 

(7)  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 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 17^th 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 : 17^th day of March’ 2025;

Place : Bankshall Court, Kolkata

 

N O T A R Y

 

 

 

For the purpose of invoking Order 7 Rule 11 (d) of the Code, no amount of evidence can be looked into. What would be relevant for arriving at the conclusion that the suit is barred by, are the averments made by the plaint

 

Citation	:(2008) 12 SCC 661
Cause Title	: Civil Appeal 3038 of 2008 Kamala  and Others v. K.T. EshwaraSA and Others
Bench	:S.B.Sinha and V.S. Sirpukar, JJ
DoJ	: April 29, 2008

 

Subject : Order 7 Rule11(d) of Code of Civil Procedure :

Whether it is permissible for Court to look into evidence or consider disputed question of fact or law, for arriving at the conclusion that the suit is barred by any law?

-“No”. For the purpose of invoking Order 7 Rule 11 (d) of the Code, no amount of evidence can be looked into. What would be relevant for arriving at the conclusion that the suit is barred by, are the averments made by the plaint.                                                     (Paras 19, 21,22,23,25)

 

19. Order 7 Rule 11 of the Code provides for rejection of plaint, clause (d) whereof specifies “where the suit appears from the statement in the plaint to be barred by any law”.

21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.

22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision.

23. ... The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.

25….. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained.

 

Written Objection on an application under Order VII Rule 11 CPC for rejection of the Plaint, by the Plaintiff

 

In the Court of the Learned District Judge,

Alipore,

South 24 Parganas

 

                     Title Suit No. 09   Of 2024

                  

                                                          In the matter of ;

Sri Subhro Ghosal,

__________Plaintiff

 

-          Versus –

 

Subhadeep Mazumder,

          _______Defendant

 

Written Objection on an application under Order VII Rule 11 CPC for rejection of the Plaint, by the Plaintiff;

 

The humble petition of the above named Plaintiff, most respectfully;

Sheweth as under;

 

1.   That the Plaintiff instituted the above referred Suit for Permanent Injunction restraining Infringement of Copyrights, Damages, Rendition of Accounts of Profits, Delivery Up, etc. under Section 55 of the Copyright Act 1957, against the Defendant, before the Learned Court. The Suit is valued at Rs. 1,00,600/- (Rupees One Lakh and Six Hundred) only.

 

2.   That the defendant was appearing in the above referred suit on 20/01/2025, by placing an application under Order VII Rule 11 of the Code of Civil Procedure’ 1908, for rejection of Plaint on service copy to the Plaintiff. The plaintiff on bare perusal of the contents and purports of the said application found that the said application is not maintainable and sustainable in the Law. The plaintiff would states necessary facts in the followings;

 

(a)  The Suit is valued at Rs. 1,00,600/- (Rupees One Lakh and Six Hundred) only;

 

(b) Even, if a cease and desist notice demanded ₹50,00,000, the fact that the suit is valued at ₹1,00,000 cannot be a ground for rejecting the plaint under Order VII Rule 11 of the CPC;

 

(c)  Under Order VII Rule 11, a plaint can be rejected only if (1) It does not disclose a cause of action, (2) The relief claimed is undervalued, and the plaintiff fails to correct it, (3) The suit is barred by law, & (4) It is not properly stamped, and the deficiency is not corrected;

 

(d) Since valuation of the suit is the plaintiff's prerogative, merely having a higher amount in the cease and desist notice does not automatically mean the suit should be rejected;

 

(e)  The valuation of a suit at ₹1,00,000, despite a prior cease and desist notice demanding ₹50,00,000, is not, by itself, a ground for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908;

 

(f)   The Supreme Court clarified that a plaint cannot be rejected merely on the ground that the plaintiff is not entitled to any relief in the suit. The determination under Order VII Rule 11 should focus on whether the plaint discloses a cause of action or is barred by law, not on the potential success of the plaintiff's claims, decided in Petition for Special Leave to Appeal (C) No. 19018/2022 (Arising out of impugned final judgment and order dated 10-10-2022 in CRN No. 3324/2022 passed by the High Court Of Punjab & Haryana at Chandigarh) Gurdev Singh v. Harvinder Singh on 09-11-2022;

 

Server Copy of the Order dated 09-11-2022, passed in Gurdev Singh v. Harvinder Singh Petition for Special Leave to Appeal (C) No. 19018/2022 (Arising out of impugned final judgment and order dated 10-10-2022 in CRN No. 3324/2022 passed by the High Court Of Punjab & Haryana at Chandigarh), by the Hon’ble Supreme Court of India, is annexed herewith and marked as Annexure – “A”.

 

3.   Without waiving any of the aforesaid Objections and Facts and fully relying thereupon and without prejudice to the same. Now, the Plaintiff deals with the specific paragraphs of the said application under Order VII Rule 11 of CPC, in seriatim as hereunder.

 

4.   The application under Order VII Rule 11 of CPC is not maintainable either in facts or in its present form and the said application under Order VII Rule 11 of CPC is speculative, harassing, motivated, concocted and baseless as is barred by the Principles of Law and hence same is liable to be rejected at once, with cost.

 

5.    Save and except the statements made in the said application under Order VII Rule 11 of CPC, which are matter of record, the Plaintiff denies each and every allegations contained in the said application under Order VII Rule 11 of CPC and calls upon the defendant to strict proof of the said allegations, in terms of the facts as well as in terms of the Law.

 

6.   That with references to the statements made in paragraph nos. 1, 2, 3, 4, and 5, of the application under Order VII Rule 11 of CPC, this Plaintiff specifically and categorically denies and disputes the contents and purport of those paragraphs, and put to the defendant to the strict proof thereof. The Plaintiff repeat and reiterate the statements made in paragraph no.2, herein above. The Plaintiff says that since valuation of the suit is the plaintiff's prerogative, merely having a higher amount in the cease and desist notice does not automatically mean the suit should be rejected. The valuation of a suit at ₹1,00,000, despite a prior cease and desist notice demanding ₹50,00,000, is not, by itself, a ground for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908.

 

7.   That with references to the statements made in paragraph nos. 6, 7, 8, and 9, of the application under Order VII Rule 11 of CPC, this Plaintiff specifically and categorically denies and disputes the contents and purport of those paragraphs, and put to the defendant to the strict proof thereof. The Plaintiff repeat and reiterate the statements made in paragraph no.2, herein above. The Plaintiff says that the present Suit is not barred by any Law under Order VII Rule 11(d) of the Civil Procedure Code’ 1908. The Commercial Courts Act 2015, is not applicable in the given facts and circumstances of the Plaint. Even the defendant removed the infringed video from the Youtube Channel, but at the same time after few days later it has been observed that the defendant through some other person trying to play the said purported infringed video through the different means of Social media i.e. Facebook, etc.

 

8.   That the cause of action in the present suit first arose on 14^th day of November’ 2024, while the Plaintiff came across a Short Film on a Youtube Channel www.youtube.com/@thebreathingcelluloid9070 Short Film : THE VOICE ARTIST, by Subhadeep Mazumder, Published on 9^th November’ 2024, vide URL of alleged infringing video : https://www.youtube.com/watch?v=SC9KlgrwyAw which contained the contents and purports truly consisted in the plaintiff’s literature/ drama work which has been cited as “TELEPHONE” having Registration No. L-136483/2023, dated 21^st day of November’ 2023. The Cause of action arose again while the Plaintiff informed such facts of infringing the copyright to Youtube authority concern and thereby the Youtube withheld the said Short film for the time being. The cause of action further arose while the Plaintiff arranged to sent Cease and Desist Notice dated 25^th November’ 2024 to the defendant and the defendant replied on the said notice by Letter dated 28^th day of November’ 2024. The Cause of action is a continuing one and shall continue until the defendant is restrained by an order of injunction of this Learned Court.

 

9.   That this Learned Court has jurisdiction by virtue of Section 62(2) of the Copyright Act, 1957, since the cause of action has arisen within the jurisdiction of this Learned Court, and also confers the jurisdiction on this Learned Court as the Plaintiff is residing and carrying his business within the territorial jurisdiction of this Learned Court. Further the Learned Court has jurisdiction by virtue of Section 20 of the Code of Civil Procedure, 1908, since the defendant is carrying on his business within the territorial jurisdiction of this Learned Court by way of URL of alleged infringing video : https://www.youtube.com/watch?v=SC9KlgrwyAw which contained the contents and purports truly consisted in the plaintiff’s literature/ drama work which has been cited as “TELEPHONE” having Registration No. L-136483/2023, dated 21^st day of November’ 2023.

 

10.               That the relief sought for in the said application under Order VII Rule 11 of CPC, are wholly without jurisdiction and the same should be negated by this Learned Court.

 

11.               That there is no merit in the said application under Order VII Rule 11 of CPC.

 

12.               That this Written Objection is made bonafide and in the interest of administration of Justice.

 

 

It is therefore prayed that your Honour would graciously be pleased to accept the written objection of the plaintiff and to reject or dismissed the application under Order VII Rule 11 of the Code of Civil Procedure’ 1908, 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 Plaintiff herein, made this written objection on an application under Order VII Rule 11 of the Civil Procedure Code’ 1908, filed by the defendant. I am acquainted and conversant with the Material facts as stated in the foregoing paragraphs of the Written Objection. I verify and sign this Written Objection on 5^th day of March’ 2025, at Alipore Judges’ Court premises.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 Plaintiff in the present suit instituted by me against the defendant. I am acquainted and conversant with the material facts. I am competent to swear this affidavit.

This is true to the best of my knowledge & belief.

 

2.   The statements made in the paragraph nos. 1, 2, & 8, 9, are true to the best of my knowledge and belief, and the rests are my humble submissions before the Learned Court.

This is true to the best of my knowledge & belief.

 

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

 

 

 

 

 

DEPONENT

Identified by me,

 

Advocate

 

Prepared in my chamber,

 

 

Advocate

Date : 5^th day of March’ 2025;

Place : Alipore Judges’ Court

 

NOTARY

 

 

In the Court of the Learned District Judge, Alipore, South 24 Parganas

 

                                         Title Suit No. 09 Of 2024

                  

                                                          In the matter of ;

Sri Subhro Ghosal,

__________Plaintiff

 

-          Versus –

 

Subhadeep Mazumder,

                             _______Defendant

 

 

 

 

Written Objection on an application under Order VII Rule 11 CPC for rejection of the Plaint, by the Plaintiff;

 

 

                                          

 

Advocate – on – Record for the Plaintiff;

 

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