18.9.2026 01 Crt.no. 29 PA CRR 611/2026 Zaib Ahmed & Anr. Vs. The State of West Bengal & Anr. With CRR/1267 /2026 Zaib Ahmed & anr. Vs. The State of West Bengal & Anr. Mr. Saswata Gopal Mukherjee, Sr. Adv Mr. Md. Adil Badr Mr. Sobhan Gani Mr. Md. Aqib Badr Ms. Shabnam Farooqui Mr. Shakti Sivam …for the Petitioners (In CRR 611 of 2026) Mr. Md. Adil Badr Mr. Sobhan Gani Mr. Md. Aqib Badr Ms. Shabnam Farooqui Mr. Shakti Sivam Mr. Shehzada Parwez …for the Petitioners (In CRR 1267 of 2026) Mr. Arindam Jana Ms. Jhuma Sen Mr. Sumanta Ganguly Mr. Youvraj Chatterjee Mr. Saikat Guin Mr. Rahul Surtani …for the Opposite Party Mr. Kallol Mondal, Ld. P.P. Mr. Anamitra Banerjee Mr. Sreyash Kumar Singh …for the State CRR 1267 of 2026 In this application the petitioner is aggrieved by the order dated 14.01.2026 passed by learned Additional District & 2 Sessions Judge Alipore in Sessions Case No. 3 (12) 2025 by which the court below rejected the petitioners prayer for discharge Being aggrieved by aforesaid order learned counsel appearing on behalf of the petitioner submits that the impugned order was passed by the court below without proper application of judicial mind to the facts and circumstances of the case and without considering the relevant materials placed before it, which are vital for the proper adjudication of the matter., instead he took into consideration irrelevant materials and extraneous circumstances which resulted miscarriage of justice. The petitioner was not given a fair and reasonable opportunity of hearing before the order was passed. He strenuously argued that the investigating officer submitted the charge sheet without placing before the learned court the CCTV footage and video recording collected during investigation, which are reliable materials. The mandate of law requires that the police report be accompanied by all documents and materials relied upon by the prosecution. The Magistrate took cognizance upon the alleged offence without considering the complete set of documents required to accompany the charge sheet and instead relied upon the case diary which is impermissible in law. The Trial court framed charges against the petitioner without considering the electronic evidence collected during investigation, which includes CCTV footage and video 3 recording that are crucial for determining the veracity of the allegations. The failure to consider such materials has caused serious prejudice to the defence. Here the investigating officer admittedly did not submit the CCTV footage and video recordings which constitute crucial electronic evidence, collected during investigation, before the concerned court in compliance with the requirement of section 173 (5) of the Cr.P.C and despite such glaring non- compliance, the learned Additional Chief Judicial Magistrate committed the case to the learned Sessions Court, who proceeded to frame charges against the accused persons without examining the electronic evidence, collected during investigation and without ensuring that the materials relied upon by the prosecution were duly produced before the court. Therefore, learned court acted mechanically and in complete disregard with the settled principle of law laid down by the Hon’ble Apex Court and therefore the impugned order framing charge and the subsequent proceedings suffer from serious legal infirmities and amounts to an overreach of the jurisdiction and causing grave prejudice to the accused persons. Learned Public prosecutor appearing on behalf of the State Mr. Mondal submits that the order impugned is well reasoned and upon considering the prosecution documents, he has passed the order impugned which is absolutely a justified order and does not call for interference by this court 4 and as such the instant application is liable to be dismissed. I have gone through the order impugned and I find that the trial court while passed the impugned order has perused the materials in the case diary, the charge sheet, the FIR, the statement recorded under section 180 and 183 of the BNSS, the CCTV footage reports, forensic report relating to electronic evidence, the medico legal reports and the written reply filed on behalf of the prosecution. Thereafter, he made a finding that the materials collected during investigation at their face value disclose sufficient grounds for presuming that accused Zaib Ahmed and accused Pramit Mukherje @ Mukhopadhyay have committed the offence alleged against them or have aided and facilitated the commission thereof in furtherance of common intention and he further held that prima facie it is found that both of them were not mere passive or chance witnesses but were present at the place of occurrence, throughout the relevant period and therefore there are sufficient grounds to frame charge against both the accused persons/petitioners herein. Apparently I find no perversity or impropriety in the order impugned. Learned Counsel for the petitioner has attempted to made an alternative argument that section 250 of the BNSS 2023 speaks about “consideration of the record of the case and the documents submitted therewith” and therefore, it does not authorize the court to consider the materials available in the case diary. But in the instant case the court below passed the impugned order going beyond the 5 materials that are part of the “case record” and therefore, order impugned is not sustainable. I find no merit in such submission. The expression, “the record of the case” used in section 250 of the BNSS is to be understood as the documents and the articles if any, produced by the prosecution. Section 250 of BNSS does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of passing the order in terms of section 227 of Cr.P.C. read with section 250 of BNSS, the court has merely to pursue the evidence in order to find out whether or not there is sufficient ground to proceed against the accused persons. In the impugned order court below clearly came to a conclusion that prima facie case has been made out against both the accused persons on perusal of the materials supplied by the prosecution and also on hearing of the parties. A three judges Bench of the Apex Court in this context has also laid down the ratio in this context in State of Orissa Vs. Debendra nath Padhi, reported in (2005) 1 SCC 568 and para 8 of the said judgment reads as follows:- 8. What is the meaning of the expression “the record of the case” as used in Section 227 of the Code. Though the word “case” is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to the Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit “the case” to the Court of Session and send to that court “the record of the case” and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. 6 That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. Therefore, discharge under section 250 of the BNSS can only apply in a case where, even if the available materials are accepted fully, it does not show that the accused persons have committed the offence. In the instant case the impugned order clearly states that the materials collected during investigation constitutes prima facie case against the petitioners and as such I do not find any substance to interfere with the order impugned. Therefore, the application being CRR 1267 of 2026 stands dismissed. CRR 611 2026 In this application the petitioner is aggrieved by the order dated 27.01.2026 passed in the same above-mentioned proceeding. Learned counsel for the petitioner Mr. Mukherjee submits that the petitioner herein had made an application under section 140 of the BSA 2023 with a prayer to direct the prosecution to examine the complainants /victim at the very inception of the prosecution evidence, in order to preserve the fairness, transparency and constitutional integrity of the trial. However, the said prayer has been rejected by the trial court by the impugned order observing that it is the prosecution who shall proceed with the examination of its witnesses in accordance with law, subject to the continued supervision of the court to ensure that the 7 trial is conducted fairly expeditiously and without prejudice to the other party. Being aggrieved by that order Mr. Mukherjee learned counsel for the petitioner argued referring the judgment passed in Uday Mallick’s Case reported in (2013) 2 Cr LR (Cal) 395 that early examination of the victim is desirable to avoid potential prejudice to the defence in cross examining subsequent witnesses or in confronting contradiction that may arise due to delayed testimony. However learned court did not address or distinguish said binding precedent. In fact examination of expert evidence without prior testimony of the victim deprives the accused of an effective opportunity to test the veracity of the prosecution case and renders the cross examination illusory and thereby violating the guarantee of fair procedure under article 21 of the Constitution of India. Therefore, he prayed for setting aside the said impugned order dated 27.01.2026. Learned Public Prosecutor appearing on behalf of the State has drawn my attention from the supplementary affidavit dated 28th July, 2026 filed by the petitioner, wherefrom it appears that by a subsequent order dated 19.06.2026, the court below has practically to some extent modified his earlier order which runs as follows:- “Hence, it is ORDERED that the prayer for deferment of cross-examination in respect of CSW- 24 Sankar Biswas, CSW-11 Dr. Nayna Chatterjee, CSW-15 Sujay Shankar Mukherjee, CSW-20 Aman Kumar and CSW-51 SI. Biplabendu Dhar, being seizure witnesses, stands rejected. Their 8 cross-examination shall proceed in the ordinary course immediately after examination-in-chief unless otherwise directed for any special reason arising subsequently. However, the prayer is allowed in respect of the remaining technical witnesses, namely CSW-1 Brojendranath Kayal, CSW-2 Biren Roychowdhury, CSW-55 Anil Kumar, CSW-68 (PW1),CSW-69 Locktongbam Nato Singh of CFSL, CSW-70 Sandip Patra, Csw-73 Nodal Officer of Reliance Jio, CSW-74 Nodal Officer of Bharati Airtel. Their cross-examination shall remain deferred and shall be undertaken after completion of the evidence of the principal victim and the materials circumstantial or spot witnesses proposed by the prosecution. The prosecution shall be at liberty to proceed with the examination-in- chief of the aforesaid technical witnesses in accordance with law. The said witnesses shall remain subject to recall for cross- examination at the stage indicated hereinabove. Let the matter proceed accordingly to the next date fixed for takin evidence on 29.06.2026.” In view of above it appears that the impugned order dated 27.01.2026 has been subsumed by the aforesaid later order but still the petitioner has cause to prejudice by the First Paragraph of the aforesaid operative portion of the order. CSW 24, CSW11, CSW15, CSW20, CSW51, have been stated to be seizure witnesses and if that be so, cross-examination of seizure witnesses cannot be done before factual foundation, as petitioner herein has disputed before this court about the alleged seizure. The trial court in his order dated 19.6.2026 made a clear observation:- “the court cannot ignore that electronic evidence derives must of it’s relevance and probative value from the factual foundation established through the testimony of the victim and other circumstantial or spot witnesses. The appreciation of expert evidence ordinarily takes place in conjunction with the primary factual narrative sought to be proved by the prosecution where the prosecution itself has chosen to postpone the evidence of the principal victim and material fact witnesses while first leading a chain of technical witnesses, the defence may legitimately contend that effective cross-examination of such technical witnesses may require a clear understanding of the factual case sought o be established through the principal witness.” The court below has deferred the examination of technical witnesses till completion of the evidence of the principal victim and the material circumstantial or spot 9 witness proposed by the prosecution. In the same analogy when the petitioners have disputed the alleged seizure, the aforesaid witnesses described as seizure witnesses, cannot be cross-examined before completion of the evidence of victim and the material circumstantial or spot witnesses and therefore court below was not justified in observing that if examination of aforesaid witness is completed before examination of material witnesses, the accused persons will have no cause to prejudice. The trial court is therefore will be at liberty to proceed with the trial in accordance with schedule laid down by him, in the order no. 17 dated 19.06.2026 passed in Sessions Trial no. 01(01)/2026 but the cross- examination of CSW-24,11,45,20,51 shall also be done, if not already done, after completion of evidence of the victim and the material circumstantial or spot witnesses proposed by the prosecution. The first paragraph in the operative portion of the order no.17 dated 19.06.2026 is hereby quashed. There will be no bar for re-examination, in respect of witnesses already cross-examined, if any. CRR 611 of 2026 thus stands disposed of. Urgent Xerox certified photocopies of this order, if applied for, be given to the parties upon compliance of the requisite formalities. (Dr. Ajoy Kumar Mukherjee, J.)