Magisterial Inquiry Before Ordering FIR An Additional Safeguard under Section 175(3) BNSS, Prevents Unnecessary Police Use: P&H HC
It is really most interesting to learn that in a fresh development, we see that the Punjab and Haryana High Court at Chandigarh in a most learned, laudable, landmark, logical and latest judgment titled Pawan Kharbanda Vs State of Punjab and another in CRM-M-3193-2025 (O&M) and cited in Neutral Citation No.: 2025:PHHC:013209 that was reserved on 21.01.2025 and then pronounced finally on 29.01.2025 has minced just no words whatsoever to hold unequivocally that Section 175(3) of BNSS has introduced additional safeguards ensuring that before directing the registration of an FIR, the Magistrate is required to conduct such inquiry as deemed necessary and consider the submissions made by the police officer. It is the bounden duty of the Magistrates to abide by what the Punjab and Haryana High Court has held so explicitly, elegantly, eloquently and effectively in this leading case! This will definitely help hugely in preventing unnecessary police use as has been pointed out also so very commendably by the Chandigarh High Court in this leading case. No denying!
At the very outset, we ought to note clearly that this progressive, pragmatic, peculiar, persuasive and pertinent judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Harpreet Singh Brar of Punjab and Haryana High Court sets the ball in motion by first and foremost putting forth in para 1 that, “Present petition has been preferred under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking quashing of cross case/DDR No.22 dated 05.06.2012 registered under Sections 323, 34 of the Indian Penal Code, 1860 (for short ‘IPC’) (Sections 307, 382, 148, 149 of IPC were deleted later on), in FIR No.119 dated 05.06.2012 under Sections 323, 324, 326, 506, 534 of IPC, registered at Police Station Salem Tabri, Ludhiana and all the subsequent proceedings arising therefrom as well as the order dated 21.08.2024 (Annexure P-9) passed by learned Judicial Magistrate 1st Class, Ludhiana, whereby the cancellation report was rejected and the matter was sent back for re-investigation.”
To put things in perspective, the Bench envisages in para 2 while elaborating on the facts of the case stating precisely that, “Brief facts of the case are that on 05.06.2012, when the petitioner was putting posters for promotion of his sister-in-law, who was contesting elections for the post of Councilor, then Satish Kumar, Pradeep Naagar and Shelly stopped him and raised lalkara, stating that no one else can contest elections in their ward. Thereafter, Vinod Kumar Noda and Bittu etc., armed with swords, baseball bats and sticks, came at the spot and they started beating the brother of the petitioner, namely Vinod Kharbanda as well as his cousin, namely Pawan Taneja. On coming to know about the incident, the complainant along with his brother Kishan Kharbanda reached at the spot. Satish Naagar gave a sword blow that hit the head of Kishan Kharbanda and another blow to the elbow and arm of Vinod Kharbanda. When an alarm was raised to rescue them, the assailants fled away from the spot with their respective weapons. Thereafter, Vinod Kharbanda, Kishan Kharbanda and Pawan Taneja were got admitted in DMC Hospital, for treatment. With these allegations, FIR (supra) was registered.”
As we see, the Bench then points out in para 3 that, “On the other hand, Satish Naagar, accused in FIR (supra) got registered a cross-case vide DDR (supra), alleging that when they reached Sarpanch street, the petitioner and 20-25 other persons abused them and hit them with sticks and kirpans. The petitioner gave a pistol butt blow on the head of Satish Naagar and also fired bullet shots towards him.”
As it turned out, the Bench enunciates in para 4 that, “Subsequently, the investigation was conducted and offences under Section 326, 324, 323, 506, 34 of IPC were found to be made out in the FIR case and accordingly, final report under Section 173 of Cr.P.C. [now Section 193 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS)] (Annexure P-2) was presented on 16.09.2016. However, in the DDR case, a cancellation report was filed, stating that no police interference was warranted.”
Be it noted, the Bench notes in para 8 that, “It is trite law that the concepts of ‘further investigation’ and ‘reinvestigation’ are disparate and must not be interpreted as synchronous. The findings of an earlier investigation cannot be set aside under the guise of further investigation. Section 173(8) of Cr.P.C. (now Section 193(9) of BNSS) only relates to continuation of investigation, when new material comes to the fore. A two Judge Bench of the Hon’ble Supreme Court in Ramchandran’s case (supra), speaking through Dr. Justice Arijit Pasayat, made the following observations:
“6. At this juncture it would be necessary to take note of Section 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has the right to further investigate under sub-section (8), but not fresh investigation or re-investigation. This was highlighted by this Court in K. Chandrasekhar v. State of Kerala and Ors., 1998(2) RCR (Criminal) 719 : (1998(5) SCC 223). It was, inter alia, observed as follows :
“24. The dictionary meaning of “further” (when used as an adjective) is “additional; more; supplemental”. “Further” investigation therefore is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. In drawing this conclusion we have also drawn inspiration from the fact that sub-section (8) clearly envisages that on completion of further investigation the investigating agency has to forward to the Magistrate a “further” report or reports – and not fresh report or reports – regarding the “further” evidence obtained during such investigation.””
It definitely cannot be ever lost on us that the Bench points out in para 10 that, “A perusal of the impugned order dated 21.08.2024 (Annexure P-9) would indicate that learned Court below has ordered ‘re-investigation’ qua the DDR case, without assigning any reasons, that would indicate application of judicial mind. Further, once the cancellation report is presented, there is nothing in the Cr.P.C. that enables the Magistrate to set aside the findings of the original investigation simply because the complainant, an interested party, was dissatisfied with the same. Certainly, Section 173(8) of Cr.P.C. (now Section 193(9) of BNSS) allows further investigation, when some fresh material is brought to the fore that was not previously considered. However, a de novo investigation cannot be ventured into lightly and must be backed by compelling circumstances.”
Most remarkably, the Bench then very rightly underscores in para 11 propounding briefly that, “The Hon’ble Supreme Court has reiterated that the right to speedy trial forms a part of the right to life as enshrined under Article 21 of the Constitution of India. In this regard, the trial would refer to investigation, trial, appeal and covers all stages i.e. from accusation to the final verdict of the last Court. No citizen can be deprived of his liberty by a procedure, which is not reasonable, fair or just, as such deprivation would be in direct violation of Article 21 of the Constitution of India. A Constitution Bench of the Hon’ble Supreme Court in Maneka Gandhi Vs. Union of India and another, 1978(1) SCC 248 has held that the protection enshrined under Article 21 of the Constitution of India confers a fundamental right on every citizen not to be deprived of his liberty except according to the procedure established by law, which must be reasonable, fair and just. The right to speedy trial, undoubtedly, flows from this concept of fairness. It was observed that any procedure, which does not ensure a reasonably quick trial, would fall foul of Article 21 of the Constitution of India. Reference in this regard can also be made to the judgments rendered by the Hon’ble Supreme Court in P. Ramachandra Rao Vs. State of Karnataka, 2002(4) SCC 578, Hussainara Khatoon Vs. Home Secretary, State of Bihar, 1980 (1) SCC 81, Abdul Rehman Antulay Vs. R.S. Nayak, 1992 (2) RCR (Criminal) 634, Common Cause A Registered Society Vs. Union of India, 1996 (6) SCC 775. A Larger Bench of the Hon’ble Supreme Court in Abdul Rehman Antulay’s case (supra) has observed that the determination of the guilt or innocence of the accused must be arrived at with reasonable dispatch. Speaking through Justice B.P. Jeevan Reddy, the following was opined:
“49.… In other words, such law should provide a procedure which is fair, reasonable and just. Then alone would it be in consonance with the command of Article 21. Indeed, wherever necessary, such fairness must be read into such law. Now, can it be said that a law which does not provide for a reasonably prompt investigation, trial and conclusion of a criminal case is fair, just and reasonable? It is both in the interest of the accused as well as the society that a criminal case is concluded soon. If the accused is guilty, he ought to be declared so. Societal interest lies in punishing the guilty and exoneration of the innocent but this determination (of guilt or innocence) must be arrived at with reasonable despatch – reasonable in all the circumstances of the case. Since it is the accused who is charged with the offence and is also the person whose life and/or liberty is at peril, it is but fair to say that he has a right to be tried speedily. Correspondingly, it is the obligation of the State to respect and ensure this right. It needs no emphasis to say, the very fact of being accused of a crime is cause for concern. It affects the reputation and the standing of the person among his colleagues and in the society. It is a cause for worry and expense. It is more so, if he is arrested. If it is a serious offence, the man may stand to lose his life, liberty, career and all that he cherishes.””
Do note, the Bench notes in para 12 that, “Adverting to the matter at hand, it transpires that DDR (supra) was lodged on 05.06.2012 under Section 323 of IPC (now Section 115(2) of BNS), which is non-cognizable in nature. The petitioner was also declared innocent during the investigation, however, after 12 years, the matter has been sent for re-investigation, subjecting the petitioner to unduly prolonged trial. There is no justification for subjecting a citizen to an indefinite period of investigation and trial.”
As a corollary, the Bench then holds in para 13 that, “In view of the facts and circumstances of the case, present petition is allowed and DDR No.22 dated 05.06.2012 registered under Sections 323, 34 of IPC, in FIR No.119 dated 05.06.2012 under Section 323, 324, 326, 506, 534 of IPC, registered at Police Station Salem Tabri, Ludhiana and all the subsequent proceedings arising therefrom as well as the order dated 21.08.2024 (Annexure P-9) passed by learned Judicial Magistrate 1st Class, Ludhiana, are hereby quashed qua the petitioner.”
Most significantly, the Bench holds in para 15 that, “Before parting, it is necessary to mention that this Court has noted variations in the manner, in which learned Magistrates deal with applications under Section 156(3) of Cr.P.C. (now Section 175(3) of BNSS) as well as the criteria for evaluation of cancellation reports submitted under Section 173 of Cr.P.C. (now Section 193 of BNSS), following the conclusion of investigation. As a watchful guardian of the rights of the citizens, the Courts bears the responsibility of ensuring that these provisions are not misused to harass individuals or to subvert the due process of law. The provisions under Sections 156 and 173 of Cr.P.C. (now Sections 175 & 193 of BNSS) are powerful legal instruments, meant to uphold justice, however, their indiscriminate use can lead to unnecessary hardships. Judicial oversight is, therefore, imperative in order to prevent abuse while ensuring that legitimate grievances receive the attention they deserve. To ensure uniformity and judicial coherence, this Court deems it appropriate to issue the following directives:
1. Guidelines for considering Cancellation Reports under Section 173 of Cr.P.C. ( now Section 193 of BNSS):
a) As already clarified, there is no legislative mandate that empowers the Magistrates to order re-investigation. Further, the concept of reinvestigation has not been prescribed in criminal matters by the legislature. The role of the Magistrates in evaluating the Cancellation Report is, therefore, strictly confined to the legal options available under the Cr.P.C. (now BNSS). In fact, when a cancellation report is presented by the Investigating Officer, concluding that no offence appears to have been committed, the Magistrate has the following three options:
(i) Accept the report and drop the proceedings.
(ii) Disagree with the report, take cognizance of the offence and issue process.
(iii) Direct further investigation by the police under Section 156(3) of Cr.P.C (now Section 175(3) of BNSS)
(b) The Magistrate must not direct further investigation solely based on the dissatisfaction of the complainant with the Cancellation Report. Ordering further investigation at the ipse dixit of the complainant could prove to be detrimental to the cause of justice, since he/she is an interested party and may have ulterior motives. It is not the satisfaction of the complainant, which would ultimately matter, but the satisfaction of the Court alone for the purposes of the acceptance or rejection of the Cancellation Report. If such a defunct approach is allowed, it will not only make it well-nigh impossible for the criminal Courts to conclude proceedings but also jeopardize the concept of free, fair and speedy trial. The complainant is obligated to specifically indicate the shortcomings in the investigation and demonstrate what crucial piece of evidence has been ignored or overlooked by the Investigating Officer, that would necessitate further investigation.
(c) When the Magistrate does deem it necessary to direct further investigation, the order so passed must reflect satisfaction supported by judicial reasoning, demonstrating that:
(i) Some crucial evidence was overlooked by the investigating agency.
(ii) A key piece of material evidence or document, which would aid in the effective adjudication of the case, required to be collected.
(iii) The Investigating Officer has acted with bias or in a manner that obstructs the course of justice.
(These illustrations are enumerative and not exhaustive)
The Magistrate must record his findings guided by objective standards of reason and justice.
2. Guidelines with respect to applications under Section 156(3) of Cr.P.C. (now Section 175(3) of BNSS):
(a) When exercising authority under Section 156(3) of Cr.P.C. (now Section 175(3) of BNSS), the Magistrate must not order registration of an FIR merely by reiterating the allegations levelled by the complainant in the application.
(b) The order directing registration of an FIR under Section 156(3) of Cr.P.C. (now Section 175(3) of BNSS) must demonstrate application of judicial mind. The rationale behind directing an investigation under Section 156(3) of Cr.P.C. (now Section 175(3) of BNSS) must be explicitly reflected in the order and simply stating that the Magistrate has reviewed the complaint, documents and heard the complainant, would be considered inadequate. While an exhaustive explanation is not required, the reasoning must be clear and dictated by objectivity.
(c) As per the directions issued by the Hon’ble Supreme Court in Priyanka Srivastava Vs. State of U.P., (2015) 6 SCC 287 and the subsequent incorporation of the same in Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), all applications under Section 156(3) of Cr.P.C. or Section 175(3) BNSS must be supported by a sworn affidavit. Such affidavits should confirm that the applicant has exhausted the remedies under Sections 154(1) and 154(3) Cr.P.C. (now Sections 173(1) and 173(4) of BNSS) before seeking intervention from the Magistrate. In order to support the affidavit, relevant supporting documents must also be attached therewith.
The filing of such an affidavit has been made a pre-requisite to filing an application under Section 156(3) of Cr.P.C. (now Section 175(3) of BNSS), with an intention to prevent undue harassment of the accused individuals. The objective is to ensure that only bona fide applicants with legitimate grievances take advantage of this provision and citizens remain safeguarded from frivolous complaints.
(d) The Courts are not expected to act as passive transmitters of information, but must carefully examine whether an investigation by the State is genuinely warranted. In that vein, the Magistrate must not act as a mere conduit for forwarding complaints to the police. The Courts must shun the antiquated practice of simply passing the buck to the investigating agency in a routine manner. A more dynamic and vibrant approach to advance the cause of reasonableness is called for, thereby enthroning justice as the paramount guiding principle in judicial decision-making. If the complaint presents straightforward allegations that can be directly adjudicated by recording evidence and proceeding to trial, the Magistrate should adopt this course instead of unnecessarily involving the police under Section 156(3) of Cr.P.C. (now Section 175(3) of BNSS). However, in cases involving intricate facts or requiring specialized investigative skills and resources beyond the capacity of the Court, referring the matter for police investigation may be justified. The Magistrate must, therefore, exercise a judicial approach in assessing whether police intervention is necessary or if the matter can proceed without it. (See: Om Prakash Ambedkar Vs. The State of Maharashtra and Others, Criminal Appeal No.352 of 2020 decided on 16.01.2025).”
Equally significant is what is then further pointed out in para 16 postulating that, “Furthermore, Section 175(3) of BNSS has introduced additional safeguards ensuring that before directing the registration of an FIR, the Magistrate is required to conduct such inquiry as deemed necessary and consider the submissions made by the police officer. The power to conduct an inquiry under this provision must be exercised liberally and the Magistrate shall mandatorily seek the submissions of the Investigating Agency. This procedural safeguard ensures that the Magistrate arrives at a reasoned and well-considered decision, preventing unnecessary invocation of investigative machinery as well as expenditure of public resources and ensuring that the resort to police intervention is warranted in the given circumstances.”
In addition, the Bench further directs in para 17 stating that, “The Magistrates in the States of Punjab and Haryana as well as Union Territory of Chandigarh are directed to strictly adhere to the aforementioned guidelines to ensure consistency, judicial propriety and uphold the majesty of law.”
Finally, the Bench then concludes by aptly holding in para 18 that, “Registry is directed to circulate a copy of these directions amongst learned District & Sessions Judge in the States of Haryana and Punjab as well as Union Territory, Chandigarh, who, in turn, shall circulate it amongst learned Magistrates. Further, a copy of these directions shall also be sent to the Director, Chandigarh Judicial Academy, Chandigarh in order to impart necessary training to all the Magistrates.”
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