In a significant ruling, the Punjab & Haryana High Court has underscored the importance of Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, stating that a Magistrate must conduct a preliminary inquiry before ordering the registration of an FIR. The Court further held that re-investigation cannot be directed arbitrarily, emphasizing that judicial reasoning and the presence of fresh material evidence are necessary for further investigation.
The judgment was pronounced by Justice Harpreet Singh Brar in CRM-M-3193-2025, wherein petitioner Pawan Kharbanda sought quashing of DDR No.22 dated 05.06.2012, which was registered under Sections 323, 34 of the IPC (with Sections 307, 382, 148, 149 of IPC deleted later) in connection with FIR No.119 dated 05.06.2012 at Police Station Salem Tabri, Ludhiana.
Background of the Case
The dispute arose during the municipal elections in 2012, when the petitioner, Pawan Kharbanda, was allegedly putting up posters to promote his sister-in-law’s candidacy for the post of councilor. The FIR was registered following a violent altercation between the petitioner’s family members and the opposing party, including Satish Kumar, Pradeep Naagar, and others. The complainant claimed that armed individuals attacked them, causing severe injuries.
However, a cross-case (DDR) was registered by the opposing party, alleging that the petitioner and his associates assaulted them and that Kharbanda even fired a pistol shot at Satish Naagar. The police, upon investigation, found no evidence supporting the allegations against the petitioner and filed a cancellation report.
Despite this, after 12 years, the Judicial Magistrate, Ludhiana, ordered re-investigation in 2024, leading to the petitioner’s challenge before the High Court.
Key Legal Issues
1. Can a Magistrate order re-investigation without fresh evidence?
2. Does Section 175(3) of BNSS mandate a preliminary inquiry before directing FIR registration?
3. What is the distinction between further investigation and re-investigation?
Court’s Observations and Ruling
Justice Harpreet Singh Brar made strong observations on the limitations of a Magistrate’s power in directing re-investigation. The Court highlighted that re-investigation is not a statutory provision under either the Code of Criminal Procedure (CrPC) or the new BNSS framework.
1. Re-Investigation Cannot Be Ordered Arbitrarily
The Court relied on Supreme Court precedents, stating that re-investigation cannot be allowed when a cancellation report has already been filed unless there is fresh material evidence. The judgment cited Ramachandran v. R. Udhayakumar (2008) 5 SCC 41, where the Supreme Court clarified:
“Even after completion of investigation under Section 173(2) of CrPC, the police has a right to further investigate under Section 173(8), but not fresh investigation or re-investigation.”
The High Court noted that in the present case, no fresh material was presented to justify re-investigation, making the Magistrate’s order legally untenable.
2. Mandatory Preliminary Inquiry Under Section 175(3) of BNSS
A crucial aspect of the ruling was the High Court’s emphasis on Section 175(3) of BNSS, which introduces a safeguard requiring Magistrates to conduct a preliminary inquiry before directing FIR registration. The Court observed:
“Section 175(3) of BNSS ensures that before an FIR is registered, the Magistrate must conduct an inquiry and consider the submissions of the police. This procedural safeguard is designed to prevent the misuse of the legal process and to ensure that only bona fide cases proceed to investigation.”
The judgment further explained that the preliminary inquiry must involve judicial application of mind and cannot be reduced to a mere formality. The Magistrate must record specific reasons demonstrating why police intervention is necessary.
3. Right to Speedy Trial and Prevention of Abuse of Law
The Court strongly criticized the 12-year delay in reviving the case against the petitioner. Referring to the constitutional right to a speedy trial, the High Court reiterated that undue prolongation of criminal proceedings amounts to a violation of Article 21 of the Constitution. It cited Maneka Gandhi v. Union of India (1978) 1 SCC 248, wherein the Supreme Court held:
“No citizen can be deprived of his liberty by a procedure that is not reasonable, fair, or just. Any delay that causes unnecessary hardship to an accused must be avoided.”
Guidelines Issued by the High Court
To prevent similar misuse of the legal process, the Court issued guidelines for Magistrates in Punjab, Haryana, and Chandigarh regarding:
Evaluation of cancellation reports: A Magistrate cannot order re-investigation solely based on the complainant’s dissatisfaction.
Orders under Section 175(3) of BNSS: Before directing FIR registration, Magistrates must conduct a preliminary inquiry and state clear reasons.
Criteria for further investigation: Any further probe must be supported by new evidence, and re-investigation should not be ordered under the guise of further investigation.
Final Verdict
Based on these findings, the High Court quashed DDR No.22 dated 05.06.2012 and the order dated 21.08.2024 passed by the Judicial Magistrate, Ludhiana, which had directed re-investigation. It held that the petitioner had already been declared innocent, and reopening the case after 12 years was unjustified.
Legal Representation
For the Petitioner: Advocate Manuj Nagrath
For the State of Punjab: Additional Advocate General Subhash Godara
