'For Uniformity & Coherence': P&H HC Issues Guidelines For Magistrates To Consider Cancellation Reports, Application To Lodge FIR Under BNSS

The Punjab & Haryana High Court issued a slew of guidelines to magistrates on consideration of cancellation reports and applications to lodge FIRs under section 156(3) of CrPC. (Section 175(3) of BNSS), observing the variations in the manner, in which Magistrates are dealing it.Justice Harpreet Singh Brar said, "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", the Court issued the following guidelines: Guidelines for considering Cancellation Reports under Section 173 of Cr.P.C. (now Section 193 of BNSS):a) 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). 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 thatobstructs 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.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 the 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...

'For Uniformity & Coherence': P&H HC Issues Guidelines For Magistrates To Consider Cancellation Reports, Application To Lodge FIR Under BNSS

Aiman J. Chishti

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