Punjab-Haryana High Court

Pawan Kharbanda vs State Of Punjab And Another on 29 January, 2025

                                   Neutral Citation No:=2025:PHHC:013209




CRM-M-3193-2025                                                               -1-




           IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                          CHANDIGARH

                                                  CRM-M-3193-2025 (O&M)
                                                  Reserved on: 21.01.2025
                                                  Pronounced on: 29.01.2025


Pawan Kharbanda
                                                                    ... Petitioner


                                            Vs.


State of Punjab and another
                                                                  ... Respondents
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR

Present:     Mr. Manuj Nagrath, Advocate
             for the petitioner.

             Mr. Subhash Godara, Addl. A.G., Punjab.

                   *******

HARPREET SINGH BRAR, J.

1. 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

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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.

2. 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.

3. On the other hand, Satish Naagar, accused in FIR (supra) got

registered a cross-case vide DDR (supra), alleging that when they reached

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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.

4. 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.

5. Learned counsel for the petitioner, inter alia, contends that

respondent No.2 did not institute any complaint after the cancellation report

was filed in the year 2020. After a delay of three years, respondent No.2 had

approached this Court by filing CRM-M-51659-2023 seeking directions to the

official respondents for presentation of final report in the DDR case and vide

order dated 25.07.2024 (Annexure P-6), a notice was issued therein, however,

respondent No.2 failed to disclose that Section 323 of IPC (now Section 115(2)

of Bharatiya Nyaya Sanhita, 2023) is non-cognizable in nature. Further, status

report by way of affidavit dated 29.04.2024 was filed by Assistant

Commissioner of Police (North), Ludhiana (Annexure P-7) stating that the

petitioner was found innocent in the DDR case. Learned Court below has erred

in ordering re-investigation at the fag end of the trial, especially in view of the

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fact that 12 years have passed since the alleged incident, which occurred on

05.06.2012. A perusal of the impugned order dated 21.08.2024 (Annexure P-9)

would indicate that no cogent reason has been mentioned, that would

necessitate re-investigation. Reliance in this regard is placed on the judgments

rendered by the Hon'ble Supreme Court in Ramachandran Vs. R.

Udhayakuamr and others, (2008) 5 SCC 41, Kishan Lal Vs. Dharmendra

Bafna and another, (2009) 7 SCC 685 and Bhagwant Singh Vs.

Commissioner of Police, in Contempt Petition No.4998 of 1983 decided on

25.04.1985 and this Court in Ravinder Kumar Vs. State of Punjab in CRM-

M-5036-2019 decided on 01.09.2020.

6. Learned State counsel could not controvert the fact that the

investigating agency had declared the petitioner to be innocent in the DDR

case.

7. Having heard learned counsel for the parties and after perusing the

record of the case with their able assistance, it transpires that Satish Kumar

Naagar, complainant in the DDR case, appeared before learned trial Court on

09.04.2024 and recorded a statement expressing his dissatisfaction with the

cancellation report put forth by the investigating agency. Therefore, vide order

dated 21.08.2024 (Annexure P-9), learned trial Court ordered re-investigation.

A proper adjudication of the case at hand requires a study of Section 173(8) of

Cr.P.C. (now Section 193(9) of BNSS), which reads as follows:

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"Section 173 Cr.P.C.- Report of police officer on completion of investigation.

xxx xxx xxx (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-

section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-

sectgions (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).

Section 193, BNSS- Report of police officer on completion of investigation.

xxx xxx xxx (9) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (3) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form as the State Government may, by rules, provide; and the provisions of sub-sections (3) to (8) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (3): Provided that further investigation during the trial may be conducted with the permission of the Court trying the case and the same shall be

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completed within a period of ninety days which may be extended with the permission of the Court.

8. 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. 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 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

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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."

9. Further, 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). However, neither the

complainant nor learned Court below has disclosed as to what was missing in

the original investigation, that requires to be remedied. A two Judge Bench of

the Hon'ble Supreme Court in Kishan Lal's case (supra), speaking through

Justice S.B. Sinha, the following was opined:

"An order of further investigation can be made at various stages including the stage of the trial, that is, after taking cognizance of the offence.

Although some decisions have been referred to us, we need not dilate thereupon as the matter has recently been considered by a Division Bench of this Court in Mithabhai Pashabhai Patel & Ors. v. State of Gujarat [2009(7) SCALE 559] in the following terms :

"16. This Court while passing the order in exercise of its jurisdiction under Article 32 of Constitution of India did not

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direct re-investigation. This court exercised its jurisdiction which was within the realm of the Code. Indisputably the investigating agency in terms of sub-section (8) of Section 173 of the Code can pray before the Court and may be granted permission to investigate into the matter further. There are, however, certain situations, where such a formal request may not be insisted upon."

"17. It is, however, beyond any cavil that 'further investigation' and 're-investigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely under Articles 226 and 32 of the Constitution of India could direct a 'State' to get an offence investigated and/or further investigated by a different agency. Direction of a re-investigation, however, being forbidden in law, no superior court would ordinarily issue such a direction."

Pasayat, J. In Ramachandran v. R. Udhayakumar, 2008(3) RCR (Criminal) 47 : 2008(3) RAJ 547 : [(2008)5 SCC 413], opined as under :-

"7. 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 right to further investigate under sub- seection (8), but not fresh investigation or reinvestigation..."

(emphasis added)

10. A perusal of the impugned order dated 21.08.2024 (Annexure P-9)

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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.

11. 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,

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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

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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."

12. 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.

13. 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.

14. All the pending miscellaneous application(s), if any, shall stand

disposed of.

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15. 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 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 Cr.P.C. (now BNSS). In

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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.

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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

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exhaustive explanation is not required, the reasoning must be clear and dictated

by objectivity.

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

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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 Ambadkar Vs. The State of Maharashtra and Others, Criminal

Appeal No.352 of 2020 decided on 16.01.2025).

16. 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

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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.

17. 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.

18. 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.



                                                 [ HARPREET SINGH BRAR ]
29.01.2025                                               JUDGE
vishnu

Whether speaking/reasoned : Yes/No
Whether reportable        : Yes/No




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