Magisterial Inquiry Before Ordering FIR An Additional Safeguard U/Section 175(3) BNSS, Prevents Unnecessary Police Use: Punjab & Haryana HC

The Punjab & Haryana has observed 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.Justice Harpreet Singh Brar said, "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 (Section 175(3) of BNSS) 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."These observations were made while setting aside the order of a magistrate for re-investigation, passed in 2024, of a Daily Diary Report (DDR) lodged in 2012 in an attempt to murder case, after rejecting the cancellation report. The Court also quashed the Daily Diary Report.In the present case, the complainant appeared the before the trial court and expressed dissatisfaction with the cancellation report, therefore the trial Court in August 2024 ordered re-investigation.After examining the submissions the Court opined that, "It is trite law that the concepts of 'further investigation' and 're- investigation' 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."Justice Brar highlighted that 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.The judge further said that when the police report states that no offence appears to have been committed, the Magistrate can take recourse to one of three options- (1) accept the report and put an end to the proceedings, (2) disagree with the report and issue process; and (3) direct further investigation to be made under Section 156(3) of Cr.P.C. (now Section 175(3) of BNSS).In the present case, the Court noted that neither the complainant nor the Court below has disclosed as to what was missing in the original investigation, that requires to be remedied.Consequently, the Court found that the trial Court 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," the Court added.It said that 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.The Court also pointed that DDR 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.Observing that, "there is no justification for subjecting a citizen to an indefinite period of investigation and trial," the Court quashed the "re-investigation" order and the DDR.Other Report From Order: 'For Uniformity & Coherence': P&H HC Issues Guidelines For Magistrates To Consider Cancellation Reports, Application To Lodge FIR Under BNSSMr. Manuj Nagrath, Advocate for the petitioner.Mr. Subhash Godara, Addl. A.G., Punjab.Title: Pawan Kharbanda v. State of Punjab and anotherClick here to read/download the order

Magisterial Inquiry Before Ordering FIR An Additional Safeguard U/Section 175(3) BNSS, Prevents Unnecessary Police Use: Punjab & Haryana HC

Aiman J. Chishti

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