1 IN THE HIGH COURT AT CALCUTTA [ CIRCUIT BENCH AT PORT BLAIR ] *** CRR/28/2026 G. Rajesh Vs. The State Mr. Shipra Mandal … for the petitioner Mr. Sumit Kumar Karmakar … for the State September 29, 2026 [AKB] Item No.5 1. This criminal revisional application has been filed on behalf of the petitioner, Shri G. Rajesh, praying for quashing of the charge-sheet arising out of FIR No. 27 of 2025 dated 22.04.2025, being Charge-Sheet No. 30 of 2025, whereby the petitioner has been charge-sheeted for the alleged commission of offences punishable under Section 223(b) read with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS). 2. Ms. Shipra Mandal, learned advocate appearing on behalf of the petitioner, submits that the charge-sheet arising out of the aforesaid FIR is not sustainable in law or on facts against the present petitioner. According to learned counsel, there are material discrepancies between the contents of the snorkeling register and the case projected by the investigating agency in the charge-sheet. It is submitted that, from the snorkeling register, it appears that the present petitioner was shown as the guide of one Avani Singh, whereas, in the charge-sheet, the investigating agency has stated that the petitioner was the guide of Smt. Kamala Singh Bhagal. According to learned 2 counsel, such discrepancy goes to the root of the prosecution case and creates serious doubt regarding the alleged involvement of the petitioner. 3. Ms. Mandal further submits that the petitioner has been charge-sheeted under Section 223(b) read with Section 3(5) of the BNS, although the prosecution itself was not instituted in accordance with the mandatory statutory requirement prescribed under Section 215 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). It is contended that, in respect of an offence falling within the category specified under the said provision, cognizance by the Court is subject to a complaint in writing by the concerned public servant or by a person duly authorised in accordance with law. In the present case, according to learned counsel, there is no such complaint in writing by the concerned public servant. 4. It is further submitted that the present proceeding was initiated on the basis of the complaint/information lodged by the Station House Officer himself and not upon a complaint in writing made by the public servant whose order was allegedly disobeyed or violated. It is therefore argued that the very foundation of the prosecution is vitiated for non-compliance with the mandatory statutory requirement. 5. Learned counsel for the petitioner further submits that the other two accused persons, namely N. Kiran and B. Papa Rao, against whom charge-sheet was submitted under Section 223(b) read with Section 3(5) of the BNS in connection with the same occurrence, have already obtained orders of quashing 3 from this Court dated 25.09.2025 and 09.02.2026, respectively. It is contended that the prosecution cannot circumvent the statutory safeguard prescribed by the legislature merely by adding Section 3(5) of the BNS to the substantive allegation under Section 223(b) BNS. 6. According to learned counsel, Section 3(5) BNS, which embodies the principle of liability arising from a criminal act done by several persons in furtherance of their common intention, cannot by itself constitute an independent substantive offence and cannot be invoked so as to dispense with the mandatory statutory requirement governing cognizance of the substantive offence. It is, therefore, submitted that continuation of the criminal proceeding against the present petitioner would amount to permitting the prosecution to proceed in disregard of an express statutory bar. 7. On such grounds, learned counsel for the petitioner submits that FIR No. 27 of 2025 dated 22.04.2025 and the consequential Charge-Sheet No. 30 of 2025 dated 15.05.2025, insofar as the present petitioner is concerned, are liable to be quashed. 8. Per contra, Mr. Sumit Kumar Karmakar, learned advocate appearing for the State, opposes the prayer for quashing. According to learned counsel, there are sufficient materials collected during investigation disclosing the involvement of the present petitioner in the alleged occurrence. It is submitted that, at this stage, the Court ought not to undertake an 4 elaborate appreciation of the evidentiary materials collected by the investigating agency. 9. Learned counsel for the State further submits that the evidence-taking process has not yet commenced and charge has not been framed by the learned Trial Court. It is, therefore, contended that any conclusion regarding the involvement or otherwise of the petitioner at this stage would be premature. According to the learned advocate, the materials collected during investigation prima-facie disclose the involvement of the petitioner in the alleged offence and, therefore, the prayer for quashing ought to be rejected. 10. I have considered the rival submissions advanced on behalf of the parties and have carefully perused the materials available on record. 11. The principal issue which falls for consideration is whether the prosecution against the present petitioner, in respect of the alleged offence under Section 223(b) BNS, could have been initiated and cognizance could be taken in the absence of a complaint in writing by the concerned public servant or a duly authorised public servant, as contemplated under Section 215 BNSS. 12. Section 215 BNSS incorporates a specific statutory restriction upon the Court taking cognizance of offences falling within the categories specified therein, including offences under the relevant provisions of the BNS. The provision contemplates that cognizance of such an offence shall not be taken except upon a complaint in writing made by the public servant 5 concerned or by a public servant duly authorised in accordance with the statutory requirement. The object of such provision is to prevent indiscriminate criminal prosecution for acts alleged to constitute disobedience of a public order and to ensure that the decision to set the criminal law in motion in such cases is taken by the competent public authority in the manner prescribed by the legislature. 13. In the present case, it is not disputed that there is no complaint in writing made by the concerned public servant in respect of the alleged violation or disobedience of the order in question. On the contrary, the materials placed before this Court discloses that the criminal proceeding was set in motion on the basis of the complaint/information lodged by the concerned Station House Officer. 14. There is, however, nothing on record to demonstrate that the concerned public servant had himself lodged the requisite complaint in writing. Equally, no material has been brought to the notice of this Court to establish that the concerned public servant had specifically authorised the SHO to make such complaint in the manner contemplated by Section 215 BNSS. 15. The requirement contained in Section 215 BNSS cannot be regarded as a mere technical or directory formality. Where the legislature has expressly prescribed a particular mode and condition for the Court to assume jurisdiction to take cognizance of an offence, compliance with such condition is mandatory. The statutory safeguard is intended to operate as a condition precedent to the taking of cognizance and cannot be 6 bypassed merely because the investigating agency has collected materials which, according to it, disclose commission of the alleged offence. 16. The fact that the charge-sheet has also invoked Section 3(5) BNS does not alter the legal position. Section 3(5) embodies the principle of constructive criminal liability based upon common intention. It does not create a separate and independent substantive offence. For its application, there must first be a substantive criminal act and thereafter material indicating that such criminal act was committed by several persons in furtherance of their common intention. The mere addition of Section 3(5) BNS, therefore, cannot remove or dilute a statutory condition governing cognizance of the substantive offence. 17. In other words, Section 3(5) BNS cannot be employed as a means of circumventing the statutory safeguard prescribed under Section 215 BNSS. If the Court is legally precluded from taking cognizance of the substantive offence except upon a complaint satisfying the requirements of Section 215 BNSS, the mere incorporation of Section 3(5) BNS cannot confer jurisdiction where the statutory condition precedent has not been fulfilled. 18. The contention of the State that the evidence-taking process has not commenced or that charge has not yet been framed also does not answer the statutory objection raised by the petitioner. The question involved here is not merely one concerning appreciation of evidence or the sufficiency of 7 materials collected during investigation. The objection goes to the very competence of the Court to take cognizance of the alleged offence in the manner in which the proceeding has been instituted. Where the statutory condition precedent for taking cognizance has not been satisfied, the existence of other materials collected during investigation cannot cure such fundamental defect. 19. It is also relevant that, in respect of the same occurrence and the same set of allegations, the proceedings against the other accused persons, namely N. Kiran and B. Papa Rao, have already been quashed by this Court by orders dated 25.09.2025 and 09.02.2026, respectively. Although the said orders are not, by themselves, determinative of the present petition, they constitute a relevant circumstance in examining the continuation of the prosecution arising out of the same occurrence, particularly when the present challenge raises the same foundational issue concerning compliance with the statutory requirement governing cognizance. 20. In the facts and circumstances of the present case, I find that the prosecution has failed to demonstrate compliance with the mandatory requirement contemplated under Section 215 BNSS. There is no complaint in writing by the concerned public servant, nor is there any material showing that the concerned SHO was duly authorised by such public servant to lodge the complaint in accordance with the statutory provision. 21. The defect, therefore, is not one which can appropriately be left to be considered at the stage of trial. The initiation and 8 continuation of the proceeding, in the absence of fulfillment of the statutory condition precedent, would amount to permitting the prosecution to proceed contrary to the express legislative mandate. 22. In view of the aforesaid discussion, this Court is of the considered opinion that the criminal proceeding arising out of FIR No. 27 of 2025 dated 22.04.2025, including the consequential Charge-Sheet No. 30 of 2025 dated 15.05.2025, insofar as the present petitioner Shri G. Rajesh is concerned, cannot be sustained in law. 23. Accordingly, the instant criminal revisional application, being CRR No. 28 of 2026, is allowed. 24. The FIR No. 27 of 2025 dated 22.04.2025 and the consequential Charge-Sheet No. 30 of 2025 dated 15.05.2025, insofar as the present petitioner Shri G. Rajesh is concerned, together with all consequential proceedings arising there from, are hereby quashed. 25. Let a copy of this order be sent to the learned Trial Court immediately. 26. Urgent Photostat certified copy of the order, if applied for, be given to the parties on payment of requisite fees. ( Prasenjit Biswas, J. )