1 IN THE HIGH COURT AT CALCUTTA [ CIRCUIT BENCH AT PORT BLAIR ] *** CRR/57/2026 Shri B. Papa Rao Vs. The State Mrs. Shipra Mandal … for the petitioner Mr. Sumit Kumar Karmakar … for the respondent September 25, 2026 [AKB] Item No. 1 1. This Criminal Revision is filed at the behest of the petitioner Shri B. Papa Rao with a prayer for quashing the charge sheet arises out of an FIR being No. 27 of 2025 dated 22.04.2025 being charge sheet No. 30 of 2025 filed against him under Section 223(b)/3(5) of the Bharatiya Nyaya Sanhita, 2023. 2. The charge sheet has been submitted against this petitioner B. Papa Rao under Sections 223(b)/3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023. 3. Mrs. Shipra Mandal, learned Advocate appearing on behalf of the petitioner, submits that the very initiation and continuation of the criminal proceeding against the petitioner, namely, B. Papa Rao, are seriously open to question both on facts and in law. It is submitted that the charge-sheet has been submitted against the petitioner under Sections 223(b)/3(5) of the Bharatiya Nyaya Sanhita, 2023 2 (hereinafter referred to as the “BNS”). The substance of the allegation, as it appears from the prosecution case, is that the petitioner had allegedly acted in violation of an order duly promulgated by a public servant and thereby attracted the penal consequences contemplated under Section 223(b) of the BNS. 4. At the outset, learned Advocate for the petitioner emphatically disputes the very factual foundation of the prosecution case. It is specifically contended that the petitioner did not take or accompany any tourist for snorkeling on the date of the alleged incident. Therefore, the fundamental factual allegation sought to be attributed to the petitioner is itself seriously disputed. According to the learned Advocate, unless such allegation is established by cogent, credible and legally admissible evidence, the same cannot, by itself, constitute a lawful basis for fastening criminal liability upon the petitioner. 5. Mrs. Mandal further submitted that the FIR was initiated suomoto by the concerned SHO and, after completion of investigation, a charge-sheet came to be submitted against the petitioner for the alleged offences under Sections 223(b)/3(5) of the BNS. According to the learned Advocate, the investigating agency proceeded in the matter without there being any complaint by the concerned public servant in respect of the alleged violation or disobedience of the public order. Such initiation and continuation of the prosecution, it is 3 argued, are contrary to the statutory mandate contained in Section 215 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). 6. Learned Advocate for the petitioner submits that neither the public servant who had promulgated the alleged order, nor any other public servant to whom such public servant is administratively subordinate, nor any other public servant duly authorised by the concerned public servant, has lodged any complaint against the present petitioner in respect of the alleged offence under Section 223(b) of the BNS. It is contended that the statutory requirement contemplated under Section 215 of the BNSS is therefore conspicuously absent. 7. It is also submitted that there is no material in the case diary or in the charge-sheet demonstrating that the petitioner was in any manner responsible for the alleged violation of the public order. There is, according to the learned Advocate, no material to establish either that the petitioner had himself violated the order in question or that he had acted in furtherance of any common intention so as to attract the provisions of Section 3(5) of the BNS. Learned Advocate accordingly submits that the invocation of Section 3(5) of the BNS cannot, in the absence of foundational facts establishing the participation and requisite common intention of the petitioner, independently sustain the prosecution. 8. In support of her submissions, learned Advocate for the petitioner places reliance upon the decision of a Coordinate 4 Bench of this Court in CRR/12/2026, preferred by one of the accused persons, namely N. Kiran, arising out of FIR No. 27 of 2025, wherein the charge-sheet dated 15th May, 2025 filed against the said accused was quashed. According to the learned Advocate, the said decision is of particular relevance to the issue concerning the applicability of the statutory bar contemplated under Section 215 of the BNSS in respect of an offence under Section 223(b) of the BNS. 9. Reliance has also been placed upon the decision of the Hon’ble High Court of Jharkhand at Ranchi in Hemant Soren v. The State of Jharkhand, in connection with Cr.M.P. No. 678 of 2026, as well as upon the decision of the Hon’ble Supreme Court in Umashankar Yadav v. State of Uttar Pradesh, through Chief Secretary, rendered in Criminal Appeal No. 439 of 2018, reported in 2025 SCC OnLine SC 1066. It is submitted that the principles enunciated in the aforesaid decisions support the contention that where the statutory precondition for taking cognizance of an offence of the nature contemplated under Section 223(b) of the BNS has not been complied with, continuation of the criminal proceeding cannot be sustained merely on the basis of a police investigation and charge-sheet. 10. Placing reliance upon the aforesaid decisions, learned Advocate for the petitioner submits that the prosecution launched against the present petitioner suffers from a fundamental statutory infirmity. According to her, the 5 absence of the requisite complaint contemplated under Section 215 of the BNSS goes to the root of the maintainability of the proceeding for the offence under Section 223(b) of the BNS and cannot be treated as a mere procedural irregularity capable of being cured at the stage of trial. 11. It is further argued that the prosecution cannot circumvent the statutory safeguard prescribed by the legislature merely by incorporating Section 3(5) of the BNS in the charge-sheet. The applicability of Section 3(5), according to the learned Advocate, is dependent upon the existence of substantive material establishing the participation of the accused persons pursuant to a common intention, and such provision cannot independently cure the absence of the mandatory statutory requirement governing prosecution for the principal offence. 12. In the circumstances, learned Advocate for the petitioner submits that the continuation of the criminal proceeding against this petitioner B. Papa Rao would amount to an abuse of the process of law, particularly when the prosecution itself suffers from the alleged non-compliance with Section 215 of the BNSS and the factual allegation regarding the petitioner's participation in the snorkeling activity is specifically disputed. 13. Accordingly, it is submitted that the present criminal revisional application deserves to be allowed and the criminal 6 proceeding arising out of FIR No. 27 of 2025 dated 15th May, 2025, including the charge-sheet bearing Charge-sheet No. 30 of 2025 submitted against the petitioner, be quashed and set aside, so far as the present petitioner is concerned. 14. Per contra, Mr. Sumit Kumar Karmakar, learned Advocate appearing for the State, raises serious objection to the prayer made in the present revisional application and submits that there are sufficient materials on record prima- facie indicating the involvement and responsibility of the petitioner/accused in connection with the alleged incident. 15. It is submitted by the learned Advocate for the State that the snorkeling register records the age of the deceased, namely, Mahavir Singh Baghel, as 79 years. Despite such recorded age, the deceased was permitted to participate in the snorkeling activity. According to the learned Advocate, such permission was in clear contravention of the Circular dated 14th November, 2019, issued by the Deputy Director (TSM), Port Blair, prescribing safeguards and conditions governing participation in snorkeling activities. 16. Drawing the attention of the Court to the aforesaid Circular, it is submitted that persons within the age group of 50 to 60 years are required to furnish a certificate issued by a duly registered Medical Practitioner certifying that they do not suffer from any health issue or medical condition which would render them unfit to undertake snorkeling activities. It is therefore contended that when the age of the deceased had 7 admittedly been recorded in the snorkeling register as 79 years, the petitioner, who was allegedly responsible for permitting participation in the activity, could not have allowed him to undertake snorkeling without ensuring compliance with the prescribed safeguards. 17. The learned Advocate for the State further submits that the petitioner cannot, at this stage, completely disassociate himself from the responsibility arising out of the alleged act of permitting the deceased to participate in the snorkeling activity. According to the State, the relevant regulatory instructions prescribed an upper age limit and contemplated medical certification as a safeguard, and the alleged failure to adhere to such requirements constitutes a matter requiring examination on the basis of evidence. 18. It is, however, fairly conceded by the learned Advocate for the State, during the course of hearing, that the charge- sheet has been submitted against the present accused, namely, B. Papa Rao, under Sections 223(b)/3(5) of the Bharatiya Nyaya Sanhita, 2023, notwithstanding the absence of any complaint by the concerned public servant in respect of the alleged violation or disobedience of the public order. It is submitted that, in view of the statutory requirement contained in Section 215 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the question regarding the maintainability of the prosecution under Section 223(b) of the BNS may arise. 8 19. Nevertheless, the learned Advocate for the State submits that the aforesaid procedural aspect would not, by itself, warrant an examination of the entire prosecution case at this stage, particularly when the petitioner has also been arraigned with the aid of Section 3(5) of the Bharatiya Nyaya Sanhita, 2023. It is contended that the precise nature and extent of the petitioner’s involvement, including whether he shared the requisite common intention with the other accused persons, are matters which would necessarily depend upon the evidence to be adduced before the learned Trial Court. 20. Mr. Karmakar, learned Advocate submitted that the materials collected during investigation disclose circumstances which require proper appreciation in the course of trial. The defence of the petitioner, the applicability and effect of the Circular dated 14th November, 2019, the entries made in the snorkeling register, the role allegedly played by the petitioner in permitting the deceased to participate in the activity, and the question as to whether such conduct attracts criminal liability are all matters which, according to the learned Advocate for the State, cannot appropriately be conclusively determined at this nascent stage of the proceeding. 21. Accordingly, it is submitted that the allegations against the petitioner cannot be brushed aside merely on the basis of the submissions advanced on his behalf. The State contends that the evidentiary aspects of the case ought to be tested 9 before the learned Trial Court after the parties are afforded an opportunity to lead evidence and the materials collected during investigation are properly appreciated in accordance with law. 22. On such premise, the learned Advocate for the State submits that the present revisional application, preferred by the petitioner/accused, B. Papa Rao, seeking quashing of the FIR and the charge-sheet submitted against him, does not warrant interference at this stage and, accordingly, prays for dismissal of the revisional application. 23. I have considered the rival submissions advanced on behalf of the parties. 24. A substantial statutory objection arises in view of Section 215 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). Section 215(1)(a)(i) BNSS expressly provides that no Court shall take cognizance of an offence punishable under Sections 206 to 223 of the BNS, except upon a complaint in writing made by the public servant concerned, or by some other public servant to whom he is administratively subordinate, or by another public servant who has been duly authorised by the concerned public servant to make such complaint. Section 223 BNS is expressly included within the said statutory range. 25. The statutory requirement is, therefore, directly attracted to the offence alleged against the present petitioner under Section 223(b) BNS. The provision creates a specific 10 condition precedent to the Court taking cognizance of the offence. The requirement of a complaint in writing by the concerned public servant, or by an authorised public servant in the manner contemplated by Section 215 BNSS, cannot be treated as an empty formality. It constitutes a legislative safeguard against the institution of proceedings for offences falling within the specified category except in the manner prescribed by Parliament. 26. In the present case, however, there is no complaint in writing made by the public servant concerned in respect of the alleged incident. On the contrary, the prosecution was set in motion on the basis of the complaint/information lodged by the SHO himself. There is nothing on record, as presently disclosed, to demonstrate that the concerned public servant had lodged a written complaint or that the SHO had been specifically authorised by the concerned public servant to make such complaint in terms of Section 215 BNSS. 27. The mere fact that the SHO is himself a public servant cannot, by itself, satisfy the requirement of Section 215 BNSS. The statute makes a distinction between the public servant concerned and another public servant who may make the complaint only in the circumstances specifically contemplated by the provision. Therefore, it is incumbent upon the prosecution to establish the source and extent of the authority under which the SHO purported to institute the 11 proceeding, particularly when the alleged offence is one falling squarely within Section 215(1)(a)(i) BNSS. 28. The invocation of Section 3(5) BNS also cannot cure the aforesaid statutory defect. Section 3(5) embodies the principle of common intention and does not constitute an independent substantive offence. The prosecution must first establish the commission of the substantive offence and thereafter establish that the criminal act was done by several persons in furtherance of their common intention. A reference to Section 3(5) cannot dispense with the mandatory requirement prescribed under Section 215 BNSS in relation to the substantive offence under Section 223 BNS. 29. The distinction between the registration of a case/investigation by the police and the taking of cognizance by the Court is material. Even assuming that the police could investigate the allegations, where the offence is one covered by Section 215(1)(a) BNSS, the Court is statutorily prohibited from taking cognizance except upon a complaint in writing by the person or authority specified in that provision. The question, therefore, is not merely whether an FIR could be registered, but whether the statutory precondition for the Court to take cognizance of the offence has been fulfilled. Section 215 expressly employs the words “No Court shall take cognizance” and thereafter prescribes the manner in which such cognizance may validly be taken. 12 30. Accordingly, where the record demonstrates that the concerned public servant did not lodge the requisite complaint in writing, and there is no material showing that the SHO was duly authorised by such public servant to lodge the complaint contemplated under Section 215 BNSS, the cognizance of the offence under Section 223(b) BNS becomes vulnerable to challenge on the ground of non-compliance with a statutory condition precedent. 31. In Umashankar Yadav (supra), the Hon’ble Apex Court, while considering the statutory bar contained in Section 195 of the Code of Criminal Procedure, observed in paragraph 32, inter alia, as follows:– “Secondly, cognizance of offence under Section 186 IPC was taken on a police report in breach of Section 195 Cr. P.C. Section 195, inter alia, provides no court shall take cognizance of offence under Section 186 save and except on a complaint in writing by the aggrieved public servant or his superior. In view of the aforesaid legal bar, cognizance taken of the offence under section 186 on a police report/chargesheet is impermissible in law.” 32. The aforesaid principle assumes significance in the context of the present case. Under the corresponding statutory scheme contained in the Bharatiya Nagarik Suraksha Sanhita, 2023, the legislature has prescribed a specific procedural safeguard governing cognizance of offences falling within the ambit of the relevant provision. Where the statute expressly mandates that cognizance can be 13 taken only upon a complaint satisfying the prescribed requirements, such requirement is not a mere procedural formality but constitutes a condition precedent to the lawful assumption of jurisdiction by the criminal court. 33. In the absence of a complaint satisfying the requirements of Section 215 BNSS, the continuation of the prosecution for an offence under Section 223(b) BNS is legally questionable. This statutory defect assumes particular importance when considered alongside the petitioner's specific defence that he did not take any tourist for snorkeling on the date of the alleged incident and that the foundational allegation against him is itself not established by the materials collected during investigation. 34. In view of above facts and circumstances and discussions made above I am of the opinion that the instant case being FIR No. 27 of 2025 dated 22.04.2025 and the charge sheet dated 15.05.2025 is liable to be quashed against this petitioner/accused B. Papa Rao. 35. Accordingly, the instant CRR being No. 57 of 2026 is hereby allowed. 36. The FIR being No. 27 of 2025 dated 22.04.2025 and the charge sheet dated 15.05.2025 filed against the present petitioner B. Papa Rao are hereby quashed. 37. Let a copy of this order be sent to the learned Trial Court immediately. 14 38. Urgent Photostat certified copy of the order, if applied for, be given to the parties on payment of requisite fees. ( Prasenjit Biswas, J. )