In the Court of the Learned Judicial Magistrate (1st
Class), 6th Court,
Alipore,
24-Pgs.(S)
Case No. : A.C. No. 1773 of 2025
In
the matter of :-
Sri Sandip Halder;
_________Complainant
-
Versus –
Sri Arindam Nandy.
__________Accused
Cause Shown on Pre-Cognizance Notice
The humble Petition of the above named alleged accused
person Arindam Nandi, 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 an application u/Section 223 of BNSS has been
filed by the above named complainant alleging commission of offence under
section 336, 356(1), 356(2), 351(2), & 351(3) of BNS by you. In support of
his said allegations be and his witness have been examined by this Ld. Court
and there are materials on records with regard to the allegations made by him
against you.
You are hereby directed to appear before this Learned
Court on the date fixed 01/08/2025 at 10:30 am and to advance your contentions
against the allegations which were put forward by the complainant in this case.
Accordingly; you are also allowed to be heard in respect of taking cognizance
by this Ld. Court upon the materials which appears on record. In case of your
absence on the give date and time the matter shall be heard ex-parte by this
Ld. Court.”
Photostat Copy of the said Pre-Cognizance Notice, is
annexed herewith and marked as Annexure – “A”,
(2)
The said
Pre-Cognizance Notice has been served without a copy of complaint made by the
Complainant herein before the Learned Court. The said Pre-Cognizance Notice
also 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 it is
pertinent to states that the petitioner has lodged a Complaint against Sandip
Halder proprietor of M/s. Maa Shibani Logistics, as since October’ 2024,
against his name there was an outstanding of Rs. 56,0476/- from Taratala Unit
& Rs. 33,8,489/- from Kasba Unit, respectively, which he refused to pay
under his criminal breach of trust and conspiracy with his employees, men and
agents and dishonestly consumed the value of the Petrol & Diesel, etc. With
the Taratalla Police Station, on 11/06/2025, which has duly been treated as an
FIR no. 0052 of 2025, dated 17/06/2025, and the same is under investigation by
the said Taratalla Police Station.
Photostat copy of the Complaint dated 11/06/2025, is
annexed herewith and marked as Annexure – “C”.
(9)
That the
Complainant preferred a Writ Application under Article 226 of the Constitution
of India against the Taratolla Police Station as well as against the
Petitioner, being the alleged accused person herein in the above referred case
matter, vide WPA no. 14755 of 2025 {Sri Sandip Halder – Versus – The State of
West Bengal & Ors.}. The said Writ application has been taken up for hearing
by His Lordship Hon’ble Justice Tirthankar Ghosh, on 23-07-2025. The Hon’ble Justice Tirthankar Ghosh, was pleased
to pass necessary order which is as follows;
“Petitioner
and the private respondent are at loggerhead because of some business disputes.
Petitioner claims that the act and action of the private respondent resulted in
pecuniary loss to the tune of Rs.40,00,000/- for which he approached the
appropriate police station for taking necessary action. However, the police
authorities did not take any step.
Learned
advocate appearing for the private respondent no.4, on the other hand, submits
that already on the basis of information furnished by the private respondent,
case has already been registered against the petitioner and the present writ
petition has been preferred for the purposes of shielding the criminal case
which is pending against the petitioner.
Learned
advocate for the petitioner also submits that the petitioner preferred an
application 2 under Section 175(3) of BNSS before the jurisdictional court.
Be
that as it may, having regard to the fact that the prayer has been made by the
petitioner for not to take any coercive action in connection with Taratala
Police Station Case No. 52 of 2025 dated 17.06.2025 and an application under
Section 528 of BNSS has been preferred, I am of the view that the petitioner
would better be advised to take steps in the revisional application which has
been preferred. No interference is made in the present writ petition as already
an application for quashing of the proceedings of the same criminal case is
pending before a coordinate Bench.
With
the aforesaid observations, the writ petition being WPA 14755 of 2025 is
disposed of.”
Photostat Server copy of the Order dated 23-07-2025,
in WPA
14755 of 2025, and the Writ application are annexed herewith collectively and
marked as Annexure – “D”.
(10)
That one
another application under Section 482 of the Code of Criminal Procedure 1973
(presently under Section 523 of BMSS 2023), being CRR no. 2908 of 2025, has
been preferred by the Complainant herein against the said Taratala
Police Station Case No. 52 of 2025 dated 17.06.2025. The said Criminal
Revisional application is yet to be taken up for hearing before the Hon’ble
Justice Jay Sengupta.
Photostat copy
of the Case Status of the said CRR no. 2908
of 2025, and the Criminal Revisional Application are annexed herewith
collectively and marked as Annexure “E”
(11)
That
the present complaint case is nothing but a counterblast to the earlier complaint lodged by the petitioner against the
complainant. It is a mala
fide and retaliatory attempt to harass the petitioner, who is
the alleged accused in this case, by initiating false and frivolous criminal
proceedings. The complainant, being aggrieved by the petitioner's lawful
actions, has sought to misuse the criminal justice machinery as a tool of
vengeance.
(12)
That
it is pertinent to mention that the earlier complaint lodged by the petitioner
was based on genuine grievances and specific facts. The same was brought to the
notice of the concerned authorities for necessary legal action. The
complainant, having failed to counter the said complaint through proper legal
means, has instead chosen to fabricate
a false and concocted story in the form of the present
complaint.
(13)
That
the police
authorities, after examining the allegations made by the
complainant, have rightly refused
to register any FIR or initiate investigation, thereby
indicating that no prima facie case was made out against the petitioner. The
refusal by the police to act on such baseless allegations further proves the
frivolity and vindictive nature of the complaint.
(14)
That
the present proceedings are clearly
an abuse of the process of law, filed with the sole intention
to pressurize and intimidate the petitioner, and to settle personal scores
arising out of the earlier lawful actions initiated by the petitioner. The
Hon’ble Court must be pleased to take note that criminal law cannot be used as a weapon for
private vendetta or to wreak vengeance on the accused person.
(15)
That
the Hon’ble Supreme Court and various High Courts have time and again held that
the Court must exercise its inherent
powers to prevent abuse of the process of law and to secure the
ends of justice. The present complaint, being devoid of any substance and
founded on ulterior
motives, deserves to be quashed at the very threshold.
(16)
That unless,
the Learned Court set aside the
present complaint case being AC no. 1773 of 2025, as being a
counterblast, frivolous, vexatious, and an abuse of the process of law, the Petitioner is highly prejudice and suffer with
irreparable loss and injury thereof.
(17)
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.
(18)
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 set aside the
present complaint case being AC no. 1773 of 2025, as being a
counterblast, frivolous, vexatious, and an abuse of the process of law, 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 Arindam Nandy,
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 01/08/2025, at the Alipore Criminal Court Premises.
Affidavit
I, Arindam Nandy, Son of Biplab Kumar Nabndy, aged about 41 years, by faith
Hindu, by Occupation Business, Proprietor of M/s. Metropolitan Transport
Company, having its office at Premises being no. 16, Taratala Road, Police
Station – Taratala, Kolkata – 700088, District – South 24 Parganas,
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
: 1st day of August’ 2025;
Place
: Alipore Criminal Court, Kolkata
N O T A R Y
