Indiscriminate Use Of Sections 175 & 193 Of BNSS Can Lead To Unnecessary Hardships: P&H High Court Issues Guidelines
The Punjab and Haryana High Court allowed a Petition seeking quashing of a cross-case registered under Sections 323 and 34 of the Indian Penal Code (IPC).
The Punjab and Haryana High Court has issued certain guidelines with respect to Cancellation Reports under Section 193 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and Applications under Section 175(3) of BNSS.
The Court was dealing with a Petition seeking quashing of a cross-case registered under Sections 323 and 34 of the Indian Penal Code (IPC).
A Single Bench of Justice Harpreet Singh Brar emphasised, “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.”
Advocate Manuj Nagrath appeared for the Petitioner while Addl. A.G. Subhash Godara appeared for the Respondents.
Factual Background
In 2012, when the Petitioner was putting posters for promotion of his sister-in-law, who was contesting elections for the post of Councilor, three persons stopped him and raised lalkara, stating that no one else can contest elections in their ward. Thereafter, some persons armed with swords, baseball bats, and sticks, came at the spot and started beating the Petitioner’s brother as well as his cousin. On coming to know about the incident, the Complainant along with his brother reached at the spot and one gave a sword blow, that hit his brother’s head and another blow to the elbow and arm of another. When an alarm was raised to rescue them, the assailants fled away from the spot with their respective weapons.
Thereafter, the victims were admitted to the Hospital, for treatment. With these allegations, an FIR was registered and on the other hand, one of the accused registered a cross-case, alleging that when they reached the street, the Petitioner and 20-25 other persons abused them and hit them with sticks and kirpans. It was also alleged that the Petitioner gave a pistol butt blow on the accused’s head and fired bullet shots towards him. Subsequently, the investigation was conducted and offences under Sections 326, 324, 323, 506, and 34 of IPC were found to be made out in the FIR case and accordingly, final report under Section 173 of the Criminal Procedure Code (CrPC) i.e., now Section 193 BNSS was presented. However, in the cross-case, a cancellation report was filed, stating that no police interference was warranted.
Reasoning
The High Court in view of the facts and circumstances of the case, observed, “… 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.”
The Court, therefore, issued the following directives to ensure uniformity and judicial coherence –
1. Guidelines for considering Cancellation Reports under Section 173 of CrPC (now Section 193 of BNSS):
(a) There is no legislative mandate that empowers the Magistrates to order re-investigation. Further, the concept of re investigation 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 CrPC (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.
(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.
2. Guidelines with respect to Applications under Section 156(3) of CrPC (now Section 175(3) of BNSS):
(a) When exercising authority under Section 156(3) of CrPC. (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 CrPC (now Section 175(3) of BNSS) must demonstrate application of judicial mind.
(c) As per the directions issued by the Supreme Court in Priyanka Srivastava v. State of U.P. (2015), and the subsequent incorporation of the same in Section 175(3) of BNSS, all applications under Section 156(3) of CrPC or Section 175(3) BNSS must be supported by a sworn affidavit.
(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.
Furthermore, the Court noted that the power to conduct an inquiry under Section 175(3) BNSS must be exercised liberally and the Magistrate shall mandatorily seek the submissions of the Investigating Agency.
“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”, it directed.
Accordingly, the High Court allowed the Petition and quashed the cross-case.
Cause Title- Pawan Kharbanda v. State of Punjab and Another (Neutral Citation: 2025:PHHC:013209)
