Himachal Pradesh High Court
Reserved On : 05.08.2025 vs Manav Sharma on 7 August, 2025
Bench: Tarlok Singh Chauhan, Virender Singh
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMMO No. : 726 of 2025
Reserved on : 05.08.2025
Decided on : 07.08.2025
State of Himachal Pradesh ...Petitioner
Versus
Manav Sharma ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes.
For the petitioner: Mr. Tejasvi Sharma, Additional
Advocate General,with Ms. Ranjna
Patial, Deputy Advocate General,
assisted by Dy.SP Manvinder
Thakur, SI Jagat Ram, SHO and HC
Baljit Kumar, Police Station Majra,
District Sirmaur, H.P.
For the respondent: Mr. Sudhir Thakur and Mr. Anshul
Bansal, Senior Advocates, with Mr.
Adhiraj Thakur, Mr. Ankit Chandel,
Mr. Somesh Sharma and Mr.
Peeyush Dhanotia, Advocates.
1
Whether Reporters of local papers may be allowed to see the judgment? Yes.
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Virender Singh, Judge.
State has filed the present petition, under
Section 528 of the Bharatiya Nagarik Suraksha Sanhita
(hereinafter referred to as 'BNSS'), for setting aside orders,
dated 1st July, 2025 and 4th July, 2025, passed by the
Court of learned Judicial Magistrate First Class, Sirmaur
at Nahan, District Sirmaur, H.P. (hereinafter referred to as
'the trial Court'), in case FIR No. 97/2025, dated 13 th June,
2025 (hereinafter referred to as 'FIR in question'),
registered under Sections 299, 132, 191 (2), 191 (3), 190,
351 (2), 115 (2), 121 (1), 109, 61 (2) of the Bharatiya Nyaya
Sanhita (hereinafter referred to as 'BNS'), with Police
Station Majra, District Sirmaur, H.P.
2. By way of the present petition, the following
relief has been sought for:
"In view of the foregoing facts, it is humbly
prayed that the orders dated 01.07.2025
and 04.07.2025 passed by Ld. JMFC
Nahan, in FIR No. 97/2025 PS Majra be set
aside and to expunge the adverse remarks
made in the said orders against the SHO,
PS Majra, and the Investigating Officer;
with further prayer to grant police custody
(remand) of accused Manav Sharma for a
period as this Hon'ble Court may deem just
and necessary in light of the fresh material;
and pass such further orders as may be
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deemed just and proper in the facts and
circumstances of the case in the interest of
justice."
3. According to the petitioner, during the
investigation of the FIR in question, one of the co-accused
Raman Kumar made a disclosure statement, regarding
recovery of weapons, including gandasi and sword and
revealed that the gandasi was supplied to him by accused-
Manav Sharma (respondent). In this regard, copy of the
disclosure statement has been annexed with the petition,
as Annexure P-1.
4. On the basis of the said information, the police
moved a remand application, dated 1st July, 2025, seeking
three days' custody of respondent-Manav Sharma,
however, the said application has been dismissed by the
learned trial Court, on 1st July, 2025, observing that the
statement of co-accused was insufficient to grant remand,
in the absence of any material and no new circumstance or
change of circumstances has been mentioned, in the
remand application.
5. It is the further case of the petitioner that
during the course of investigation, one independent
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witness came forward, giving a statement, under Section
180 of the BNSS, confirming that respondent-Manav
Sharma had supplied weapons to the rioters. The
statement of the said witness has also been annexed with
the petition, as Annexure P-4.
6. As such, according to the petitioner, fresh
application was moved before the learned trial Court,
which was again heard and dismissed on 4th July, 2025.
Not only this, the learned trial Court has also made certain
adverse remarks against the SHO by branding the
investigation as biased, malafide, reprehensible and
directed the Director General of Police to take action.
7. The orders are stated to be not sustainable in
the eyes of law, as, the statement of independent witness
was recorded only after 1st July, 2025, and the learned trial
Court has not appreciated the evidentiary value of the
material, so collected, during the investigation.
8. On the basis of the above facts, a prayer has
been made to allow the petition, as prayed for.
9. Alongwith the petition, the confessional
statement, dated 30th June, 2025, made by one Raman
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Kumar, under Section 23 (2) of the Bharatiya Sakhshya
Adhiniyam (hereinafter referred to as 'BSA') has also been
placed on record, in which, said Raman Kumar has
allegedly confessed that on 13th June, 2025, at Majra,
during the day time, Manav Sharma handed over him
gandasi, after taking out the same from the place, where
there were a number of trees, and after inflicting the injury
on the police official, he threw the same at Kiratpur and
that he can get the same recovered.
10. The remand application, dated 1st July, 2025;
statement of Kulwinder Singh @ Shenty, recorded under
Section 180 of the BNSS, on 2nd July, 2025, and the
remand application, dated 4th July, 2025 have also been
annexed with the petition.
11. From the material placed on record, the
following facts emerge:
11.1. On 13th June, 2025, HC Pradeep Kumar No.
209, was directed to visit Civil Hospital, Paonta Sahib and
JC Juneja Hospital, to verify the factual position, as
mentioned, in reports No. 38 and 39. In JC Juneja
Hospital, HC Sandeep was found in injured condition.
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Requisite forms were filled for his medico legal examination
and MLC was obtained.
11.2. Thereafter, HC Pradeep Kumar No. 209, visited
Civil Hospital Paonta Sahib, where ASI Ashish Kumar, was
found admitted for treatment. MLC of SI Ashish Kumar
was obtained. The Medical Officers of JC Juneja Hospital,
and Civil Hospital, Paonta Sahib, declared the injuries on
the person of HC Sandeep Kumar and ASI Ashish Kumar,
as simple in nature.
11.3. Thereafter, ASI Ashish Kumar, Police Station
Majra, District Sirmaur, got recorded his statement, under
Section 173 of the BNSS to HC Pradeep Kumar No. 209,
disclosing therein, that he is posted as I.O. in Police
Station Majra.
11.4. On 10th June, 2025, a case FIR No. 95 of 2025,
was registered, under Section 137(2) of the BNS, on the
ground that one Muslim boy had enticed away a Hindu
girl. In this context, on 13th June, 2025, in the morning,
volunteers of Jagran Manch had gathered at Majra Chowk
for demonstration.
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11.5. The said mob was pacified by SDPO and
Incharge, Police Station, Majra, however, the persons, who
were demonstrating there, were again and again stressing
that they will finish the person, who has enticed away the
girl. Due to their activities, the police apprehended about
the violence. As such, police force was requested to be
deputed from Police Lines, Nahan and Paonta Sahib.
Those policemen were deputed at the house of the main
accused Mohseen Khan, in Village Kiratpur, in order to
maintain law and order situation.
11.6. ASI Ashish Kumar further got recorded that he,
along with other police officials, including HC Sandeep No.
512, LC Gurpreet Kaur No. 274, was also present there. At
about 5.30 p.m., from Matak Majari side, the volunteers of
Hindu Jagran Manch, including MLA Sukh Ram
Chaudhary, MLA Rajeev Bindal, Manav Sharma, Sunit
Gupta, Raj Kumar, Ashish Attri, Nand Lal, Indra, Alka, and
other ladies and other persons on motorcycle, who were
having dandas in their hands, were proceeding towards
the house of Mohseen.
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11.7. The Dy.SP, Paonta Sahib, had tried his level
best to pacify them, but, they had not paid any heed to
him. When, Dy.SP Paonta Sahib and SHO Majra were
trying to pacify them, then, Manav Sharma and Sumit
Gupta, who were also present in the said mob, were
instigating the other persons, by saying that the police is
not searching for the girl and that, they themselves have to
finish the person, who has enticed away the said girl.
Meanwhile, the mob became aggressive.
11.8. Thereafter, someone from the persons belonging
to Muslim community had pelted a stone, due to which,
tension arose between the two communities and they
started pelting stones on each other and also beating each
other with dandas. Meanwhile, some of the persons from
the mob had also started pelting stones on the police.
11.9. Due to pelting of stones, complainant sustained
injuries over his head and forehead. A person, out of the
mob, had also hit HC Sandeep with a danda on his head.
Consequently, he sustained injuries. Similarly, LC
Gurpreet Kaur, No. 274 had also sustained injuries, which
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were caused by the members of the mob. As such, a
prayer has been made to take action.
11.10. After registration of the FIR, further
investigation was entrusted to HC Pradeep Kumar No. 209.
During investigation, on 14th June, 2025, HC Pradeep
Kumar, No. 209, I.O. Police Station Majra, at the instance
of complainant ASI Ashish Kumar, visited the spot and
spot map was prepared. Statements of witnesses, under
Section 180 of the BNSS, were recorded.
11.11. It has been found during the investigation that
the agitated mob had prevented the police officials from
performing their duties and beaten them. As such, Section
121 of the BNS was added, in this case. Thereafter, the
investigation of the case was entrusted to SI/SHO Police
Station, Majra.
11.12. On 14th June, 2025, accused-Sunit Gupta,
Manav Sharma, Jai Prakash, and Raj Kumar, were
associated in the investigation and on finding their
involvement, they were arrested at about 7.30 p.m.
Thereafter, they were produced before the Doctor for
medico-legal examination and their MLCs were obtained.
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11.13. It is further case of the police that out of the
agitated mob, one person had inflicted gandasi blow on the
head of HC Sandeep Kumar. Due to the said blow, the cap
worn by HC Sandeep Kumar got cut and he also sustained
deep injury over his head, which, as per MLC, is 7 x 2 cm
long (elliptical shape).
11.14. It is the further case of the Police that had HC
Sandeep Kumar not worn the cap, the said injury could
have been dangerous to his life. As such, Section 109 of
the BNS was added, in this case.
11.15. During the course of investigation, spot was
also videographed. The accused persons, who were
arrested, were produced before the Court of learned
Judicial Magistrate First Class, Nahan, from where, they
were remanded to police custody.
11.16. It is the further case of the police that on 16th
June, 2025, C. Rijwan, Security Branch, Paonta Sahib, has
produced the CD of videography and photographs. Those
were analyzed minutely. One Sameer Khan, had also made
available the footage of the CCTV camera installed in his
house at Kiratpur, which was examined. The time of the
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same was found to be 10 minutes ahead of the actual time
and the date was found to be 16.6.2025.
11.17. As per the CCTV footage, on 13th June, 2025, at
about 5.43.35 p.m., a suspicious person was noticed, who
had worn black coloured T-shirt and black shorts. He was
having gandasa/farsa in his right hand. He had muffled
his face with white coloured cloth. The said person was
found to be joining the mob. He was followed by another
person, who was having danda in his right hand. The said
person had also worn the same type of clothes. These
persons were found to be moving from Fatehpur towards
the house of Mohseen at Kiratpur. Few persons were
noticed in the CCTV footage, who were having dandas in
their hands. Manav Sharma, was also found to be in the
mob at about 5.45.15 p.m. He had worn long white Kurta
Pajama, and his tuft of hair was also visible. The said
CCTV footage was preserved and submitted to the SI/SHO.
11.18. As per the statement of HC Sandeep Kumar, the
said persons were found to be Manav Sharma, Sunit
Gupta, Raj Kumar and Nand Lal. Those persons were seen
with the aggressive mob.
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11.19. It is the further case of the police that the
attack on the police appears to be at the instance of these
persons. It has also been mentioned that both the
suspicious persons, shown in the photographs, were
having the danda, farsa/gandasa and stones, in their
hands.
11.20. The information of those two persons is stated
to be in the knowledge of the above four accused persons,
who were arrested. The incident is stated to be communal
riots. According to the further stand of the police, had the
police been not intervened, then, they may have instigated
the mob and burnt the house of Mohseen.
11.21. Highlighting the role of accused-Manav Sharma,
Jai Prakash @ Nand Lal, Raj Kumar and Sunit Gupta, it is
the case of the police that the said persons had hatched
conspiracy and instigated the mob to proceed towards the
house of Mohseen and due to this instigation, mob reached
at Fatehpur, where stones were pelted on the police. As
per the stand taken by the police, since the above four
persons were instigating the mob, to commit violence,
Section 61(2) of the BNS was added, in this case.
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11.22. As per the status report, the factum of tense
situation in the area was apprised to District Magistrate,
Sirmaur, so that the communal clashes may not occur. As
such, District Magistrate, in order to maintain law and
order situation, has imposed Section 163 BNSS, in some of
the villages of Majra, till 26th June, 2025.
11.23. As per the stand of the police, on the basis of
the CCTV footage, on 18th June, 2025, accused Solanki
was identified. Search was made for him at Kala Amb area
and he was enquired. As per the police, said accused
Solanki, during the investigation, by the Police, disclosed
that the person, who had muffled his face, is Raman
Kumar, son of Veer Singh. The said Solanki was arrested
on 18th June, 2025 and he was produced before the Court
of learned Chief Judicial Magistrate, Nahan, from where,
he was remanded to police custody for four days and
thereafter, on 21st June, 2025, he was remanded to judicial
custody.
11.24. As per the status report, the man with muffled
face, who has attacked the police, has been identified as
Raman Kumar and efforts were made to nab him. On 27 th
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June, 2025, on the basis of the status report, filed before
this Court, the application filed by accused-Raman Kumar,
for anticipatory bail, was rejected and he was taken into
custody. According to the police, accused-Raman Kumar
is still not disclosing the truth and recovery of
gandasa/farsa and motorcycle is yet to be made from him.
11.25. During the course of investigation, it has been
found that accused-Raj Kumar, alongwith his friends,
accused-Manav Sharma, Sunit Gupta, Jai Prakash @ Nand
Lal has instigated the mob leading to communal riots.
11.26. According to the police, accused-Raj Kumar,
Sunit Gupta and Jai Prakash Pandey, alongwith their
friend, accused-Manav Sharma, at the first instance, had
instigated and encouraged the mob for communal riots.
12. The police has registered the case, under the
provisions, as mentioned hereinabove. Since, the injury,
has allegedly inflicted upon the police official, as such,
provisions of Section 109 of the BNS, especially Part-II of
the same, prima facie are found to be applicable, in the
present case.
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13. Respondent-Manav Sharma, as per the remand
order, annexed with the petition, was arrested on 14 th
June, 2025. He was produced before the Court of learned
Chief Judicial Magistrate, Nahan and was remanded to
judicial custody till 27th June, 2025.
14. In this factual background, the first and
foremost question, which arises for determination, before
this Court is as to whether the requests for police remand,
as moved on 1st July, 2025 and 4th July, 2025, which were
rejected by the learned trial Court, are still available to the
State or with the passage of time, the prayer for police
remand now becomes infructuous.
15. In this regard, the provisions of Section 109 of
the BNS, are reproduced, as under:
"109. Attempt to murder. - (1) Whoever
does any act with such intention or
knowledge, and under such circumstances
that, if he by that act caused death, he would
be guilty of murder, shall be punished with
imprisonment of either description for a term
which may extend to ten years, and shall also
be liable to fine; and if hurt is caused to any
person by such act, the offender shall be liable
either to imprisonment for life, or to such
punishment as is hereinbefore mentioned.
(2) When any person offending under sub-
section (1) is under sentence of imprisonment
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for life, he may, if hurt is caused, be punished
with death or with imprisonment for life, which
shall mean the remainder of that person's
natural life."
16. Since, in this case, hurt has been caused, as
such, the offenders can be liable either to imprisonment for
life or to such punishment, as has been mentioned
hereinbefore.
17. Similarly, the provisions of Section 187 of the
BNSS, are reproduced, as under:
" 187. Procedure when investigation
cannot be completed in twenty-four hours.
- (1) Whenever any person is arrested and
detained in custody, and it appears that the
investigation cannot be completed within the
period of twenty-four hours fixed by section
58, and there are grounds for believing that
the accusation or information is well-founded,
the officer in charge of the police station or the
police officer making the investigation, if he is
not below the rank of sub-inspector, shall
forthwith transmit to the nearest Judicial
Magistrate a copy of the entries in the diary
hereinafter specified relating to the case, and
shall at the same time forward the accused to
such Magistrate.
(2) The Magistrate to whom an accused person
is forwarded under this section may,
irrespective of whether he has or has no
jurisdiction to try the case, after taking into
consideration the status of the accused person
as to whether he is not released on bail or his
bail has not been cancelled, authorise, from
time to time, the detention of the accused in
such custody as such Magistrate thinks fit, for
a term not exceeding fifteen days in the whole,
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or in parts, at any time during the initial forty
days or sixty days out of detention period of
sixty days or ninety days, as the case may be,
as provided in sub-section (3), and if he has no
jurisdiction to try the case or commit it for trial,
and considers further detention unnecessary,
he may order the accused to be forwarded to a
Judicial Magistrate having such jurisdiction.
(3) The Magistrate may authorise the detention
of the accused person, beyond the period of
fifteen days, if he is satisfied that adequate
grounds exist for doing so, but no Magistrate
shall authorise the detention of the accused
person in custody under this sub-section for a
total period exceeding--
(i) ninety days, where the investigation
relates to an offence punishable with
death, imprisonment for life or
imprisonment for a term of not less than
ten years;
(ii) sixty days, where the investigation
relates to any other offence, and, on the
expiry of the said period of ninety days,
or sixty days, as the case may be, the
accused person shall be released on bail
if he is prepared to and does furnish bail,
and every person released on bail under
this sub-section shall be deemed to be so
released under the provisions of Chapter
XXXIV for the purposes of that Chapter.
(4) No Magistrate shall authorise detention of
the accused in custody of the police under this
section unless the accused is produced before
him in person for the first time and
subsequently every time till the accused
remains in the custody of the police, but the
Magistrate may extend further detention in
judicial custody on production of the accused
either in person or through the medium of
electronic video linkage.
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(5) No Magistrate of the second class, not
specially empowered in this behalf by the High
Court, shall authorise detention in the custody
of the police.
Explanation I.--For the avoidance of doubts, it
is hereby declared that, notwithstanding the
expiry of the period specified in sub-section (3),
the accused shall be detained in custody so
long as he does not furnish bail.
Explanation II.--If any question arises whether
an accused person was produced before the
Magistrate as required under sub-section (4),
the production of the accused person may be
proved by his signature on the order
authorising detention or by the order certified
by the Magistrate as to production of the
accused person through the medium of
electronic video linkage, as the case may be:
Provided that in case of a woman under
eighteen years of age, the detention shall be
authorised to be in the custody of a remand
home or recognised social institution:
Provided further that no person shall be
detained otherwise than in police station
under policy custody or in prison under
Judicial custody or place declared as prison by
the Central Government or the State
Government.
(6) Notwithstanding anything contained in sub-
section (1) to sub-section (5), the officer in
charge of the police station or the police officer
making the investigation, if he is not below the
rank of a sub-inspector, may, where a Judicial
Magistrate is not available, transmit to the
nearest Executive Magistrate, on whom the
powers of a Judicial Magistrate have been
conferred, a copy of the entry in the diary
hereinafter specified relating to the case, and
shall, at the same time, forward the accused to
such Executive Magistrate, and thereupon
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such Executive Magistrate, may, for reasons to
be recorded in writing, authorise the detention
of the accused person in such custody as he
may think fit for a term not exceeding seven
days in the aggregate; and, on the expiry of
the period of detention so authorised, the
accused person shall be released on bail
except where an order for further detention of
the accused person has been made by a
Magistrate competent to make such order; and,
where an order for such further detention is
made, the period during which the accused
person was detained in custody under the
orders made by an Executive Magistrate under
this sub-section, shall be taken into account in
computing the period specified in sub-section
(3):
Provided that before the expiry of the period
aforesaid, the Executive Magistrate shall
transmit to the nearest Judicial Magistrate the
records of the case together with a copy of the
entries in the diary relating to the case which
was transmitted to him by the officer in charge
of the police station or the police officer making
the investigation, as the case may be.
(7) A Magistrate authorising under this section
detention in the custody of the police shall
record his reasons for so doing.
(8) Any Magistrate other than the Chief
Judicial Magistrate making such order shall
forward a copy of his order, with his reasons
for making it, to the Chief Judicial Magistrate.
(9) If in any case triable by a Magistrate as a
summons-case, the investigation is not
concluded within a period of six months from
the date on which the accused was arrested,
the Magistrate shall make an order stopping
further investigation into the offence unless the
officer making the investigation satisfies the
Magistrate that for special reasons and in the
interests of justice the continuation of the
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investigation beyond the period of six months
is necessary.
(10) Where any order stopping further
investigation into an offence has been made
under sub-section (9), the Sessions Judge may,
if he is satisfied, on an application made to
him or otherwise, that further investigation into
the offence ought to be made, vacate the order
made under sub-section (9) and direct further
investigation to be made into the offence
subject to such directions with regard to bail
and other matters as he may specify."
(self emphasis supplied)
18. In view of sub-Section (2) of Section 187 of the
BNSS, as reproduced hereinabove, to the considered
opinion of this Court, the prayer of the police to seek the
police remand still subsists.
19. Now, this Court would proceed further to
ascertain as to whether the prayer for police remand has
rightly been rejected by the learned trial Court, vide orders,
dated 1st July, 2025 and 4th July, 2025 (orders impugned
herein) and the same is sustainable in the eyes of law or
not.
20. The police is investigating this case and after
the arrest of respondent-Manav Sharma, when, he was
produced before the Court, the police remand was also
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sought, but, the same was given and he was remanded to
judicial custody on 15th June, 2025. Thereafter, the police
continued with the investigation of the case and
subsequently, moved the application for police remand on
1st July, 2025, by specifically mentioning the fact that the
place, where accused-Manav Sharma (respondent), as per
the disclosure statement made by accused-Raman
Sharma, had kept the weapons, is to be got identified from
him and the matter is also required to be investigated, as
to from where he has purchased the weapons, i.e. gandasi
and swords.
21. Similarly, in the remand application, dated 4 th
July, 2025, the prayer for the police remand has been
made on the basis of the fact that witness-Kulwinder Singh
@ Shenty, in his statement, recorded under Section 180 of
the BNSS, has named respondent-Manav Sharma as the
person, who had allegedly told Kulwinder Singh @ Shenty,
Solanky, Lokesh and Raman not to go to Kiratpur empty-
handed, as, the persons at Kiratpur might be having
weapons with them and also disclosed to him that he has
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brought weapons for them, which, he allegedly had kept in
a sack under the trees.
22. The purpose, for which, the police remand has
been sought, has specifically been mentioned and to
investigate the matter, is the sole prerogative of the police.
The Court cannot issue direction to the police not to
investigate the matter, in a particular manner.
23. The scope of investigation has elaborately been
discussed by the Hon'ble Supreme Court in H.N. Rishbud
and another versus State of Delhi, reported in AIR 1955
Supreme Court 196. Relevant para-5, of the judgment, is
reproduced, as under:
"5. To determine the first question it is
necessary to consider carefully both the
language and scope of the section and the
policy underlying it. As has been pointed out
by Lord Campbell in - 'Liverpool Borough Bank
v. Turner', (1861) 30 LJ Ch 379 (A), "there is no
universal rule to aid in determining whether
mandatory enactments shall be considered
directory only or obligatory with an implied
nullification for disobedience. It is the duty of
the Court to try to get at the real intention of
the Legislature by carefully attending to the
whole scope of the statute to be construed".
(See Craies on Statute Law, page 242, Fifth
Edition).
The Criminal Procedure Code provides not
merely for judicial enquiry into or trial of
alleged offences but also for prior investigation
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thereof. Section 5 of the Code shows that all
offences "shall be investigated, inquired into,
tried and otherwise dealt with in accordance
with the Code" (except in so far as any special
enactment may provide otherwise). For the
purposes of investigation offences are divided
into two categories 'cognizable' and 'non-
cognizable'. When information of the
commission of a cognizable offence is received
or such commission is suspected, the
appropriate police officer has the authority to
enter on the investigation of the same (unless
it appears to him that there is no sufficient
ground). But where the information relates to a
non- cognizable offence, he shall not
investigate it without the order of a competent
Magistrate.
Thus it may be seen that according to the
scheme of the Code, investigation is a normal
preliminary to an accused being put up for trial
for a cognizable offence (except when the
Magistrate takes cognizance otherwise that on
a police report in which case he has the power
under Section 202 of the Code to order
investigation if he thinks fit). Therefore, it is
clear that when the Legislature made the
offences in the Act cognizable, prior
investigation by the appropriate police officer
was contemplated as the normal preliminary
to the trial in respect of such offences under
the Act. In order to ascertain the scope of and
the reason for requiring such investigation to
be conducted by an officer of high rank (except
when otherwise permitted by a Magistrate), it
is useful to consider what "investigation" under
the Code comprises.
Investigation usually starts on information
relating to the commission of an offence given
to an officer in charge of a police station and
recorded under section 154 of the Code. If from
information so received or otherwise, the
officer in charge of the police station has
reason to suspect the commission of an
offence, he or some other subordinate officer
2025:HHC:26557
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deputed by him, has to proceed to the spot to
investigate the facts and circumstances of the
case and if necessary to take measures for the
discovery and arrest of the offender.
Thus investigation primarily consists in the
ascertainment of the facts and circumstances
of the case. By definition, it includes "all the
proceedings under the Code for the collection
of evidence conducted by a police officer". For
the above purposes, the investigating officer is
given the power to require before himself the
attendance of any person appearing to be
acquainted with the circumstances of the case.
He has also the authority to examine such
person orally either by himself or by a duly
authorised deputy. The officer examining any
person in the course of investigation may
reduce his statement into writing and such
writing is available, in the trial that may
follow, for use in the manner provided in this
behalf in section 162.
Under section 155 the officer in charge of a
police station has the power of making a
search in any place for the seizure of anything
believed to be -necessary for the purpose of the
investigation. The search has to be conducted
by such officer in person. A subordinate officer
may be deputed by him for the purpose only
for reasons to be recorded in writing if he is
unable to conduct the search in person and
there is no other competent officer available.
The investigating officer has also the power to
arrest the person or persons suspected of the
commission of the offence under section 54 of
the Code. A police officer making an
investigation is enjoined to enter his
proceedings in a diary from day-to-day. Where
such investigation cannot be completed within
the period of 24 hours and the accused is in
custody he is enjoined also to send a copy of
the entries in the diary to the Magistrate
concerned.
It is important to notice that where the
investigation is conducted not by the officer in
2025:HHC:26557
25
charge of the police station but by a
subordinate officer (by virtue of one or other of
the provisions enabling him to depute such
subordinate officer for any of the steps in the
investigation) such subordinate officer is to
report the result of the investigation to the
officer in charge of the police station. If, upon
the completion of the investigation it appears
to the officer in charge of the police station that
there is no sufficient evidence or reasonable
ground, he may decide to release the
suspected accused, if in custody, on his
executing a bond. If, however, it appears to
him that there is sufficient evidence or
reasonable ground, to place the accused on
trial, he is to take the necessary steps
therefore under section 170 of the Code. In
either case, on the completion of the
investigation he has to submit a report to the
Magistrate under section 173 of the Code in
the prescribed form furnishing various details.
Thus, under the Code investigation consists
generally of the following steps: (1) Proceeding
to the spot, (2) Ascertainment of the facts and
circumstances of the case, (3) Discovery and
arrest of the suspected offender, (4) Collection
of evidence relating to the commission of the
offence which may consist of (a) the
examination of various persons (including the
accused) and the reduction of their statements
into writing, if the officer thinks fit, (b) the
search of places of seizure of things
considered necessary for the investigation and
to be produced at the trial, and (5) Formation
of the opinion as to whether on the material
collected there is a case to place the accused
before a Magistrate for trial and if so taking
the necessary steps for the same by the filing
of a charge-sheet under section 173.
The scheme of the Code also shows that while
it is permissible for an officer in charge of a
police station to depute some subordinate
officer to conduct some of these steps in the
investigation, the responsibility for every one
2025:HHC:26557
26
of these steps is that of the person in the
situation of the officer in charge of the police
station, it having been clearly provided in
section 168 that when a subordinate officer
makes an investigation he should report the
result to the officer in charge of the police
station. It is also clear that the final step in the
investigation, viz. the formation of the opinion
as to whether or not there is a case to place
the accused on trial is to be that of the officer
in charge of the police station. There is no
provision permitting delegation thereof but only
a provision entitling superior officers to
supervise or participate under section 551."
(self emphasis supplied)
24. The Hon'ble Supreme Court, in Adri Dharan
Das versus State of W.B., reported in (2005) 4 Supreme
Court Cases 303, has elaborately discussed the purpose of
investigation by way of arrest of a person and has held that
the Court ordinarily will not interfere with the investigation
of a crime or with the arrest of the accused in a cognizable
offence. Relevant para-19, of the judgment, is reproduced,
as under:
"19. Ordinarily, arrest is a part of the process
of investigation intended to secure several
purposes. The accused may have to be
questioned in detail regarding various facets of
motive, preparation, commission and
aftermath of the crime and the connection of
other persons, if any, in the crime. There may
be circumstances in which the accused may
provide information leading to discovery of
material facts. It may be necessary to curtail
2025:HHC:26557
27
his freedom in order to enable the investigation
to proceed without hindrance and to protect
witnesses and persons connected with the
victim of the crime, to prevent his dis-
appearance to maintain law and order in the
locality. For these or other reasons, arrest may
become inevitable part of the process of
investigation. The legality of the proposed
arrest cannot be gone into in an application
under Section 438 of the Code. The role of the
investigator is well-defined and the
jurisdictional scope of interference by the Court
in the process of investigation is limited. The
Court ordinarily will not interfere with the
investigation of a crime or with the arrest of
accused in a cognizable offence. An interim
order restraining arrest, if passed while
dealing with an application under Section
438 of the Code will amount to interference in
the investigation, which cannot, at any rate, be
done under Section 438 of the Code."
25. In this case, although, the police, on 15 th June,
2025, moved the application for police custody, however,
the Court of learned Chief Judicial Magistrate, Sirmaur at
Nahan, refused the same, as, the investigation was at the
initial stage, whereas, the applications for police remand,
moved on 1st July, 2025 and 4th July, 2025, contain
specific information, which is required to be obtained from
accused-Manav Sharma (respondent), on the basis of the
evidence, so collected, including the disclosure statement,
made by his co-accused Raman Sharma, as well as, on the
2025:HHC:26557
28
basis of the statement of Kulwinder Singh @ Shenty, under
Section 180 of the BNSS.
26. The reasons, which have been mentioned, in the
orders impugned herein, to the considered opinion of this
Court, amounts to interfering with the investigation of the
case, by the police.
27. The learned Senior Counsel appearing for
respondent-Manav Sharma has argued that the respondent
cannot be compelled to be a witness against himself, as, it
violates the protection, provided by Article 20 (3) of the
Constitution of India.
28. The said argument is devoid of merit. Except
the confession, other modes of investigation are there,
which have been highlighted by the Hon'ble Supreme Court
in H.N. Rishbud's case (supra). By refusing the police
remand, the police has been divested from its prerogative
to investigate the matter.
29. The effect of refusal to grant police remand has
been summarized by the High Court of Gujarat in Kandhal
Sarman Jadeja versus State of Gujarat, reported in 2012
2025:HHC:26557
29
Cr.L.J. 4165. Relevant para-17 of the judgment, reads as
under:
"17. In the light of the aforesaid discussions,
our final conclusion may be summarized thus:-
I. An order refusing to grant remand has
direct bearing on the proceedings of the
trial itself and in a given case will
definitely have effect on the ultimate
decision of the case.
II. An order refusing to grant remand may
effect progress of the trial or its decision in
any manner if investigating agency is
deprived of having custodial interrogation
of the accused so as to effectively
investigate the offence and gather
necessary evidence and material to put
the accused to trial.
III. An order refusing to grant police
remand would be a final order and
revision under Sections 397 read with
Section 401 of the Code would be
maintainable."
30. The custodial interrogation is also held to be
effective mode of investigation, by the Hon'ble Supreme
Court, in Special Leave Petition (Crl.) No. 9949 of 2023,
titled as Ashok Kumar versus State of Union Territory
Chandigarh. Relevant para-12, of the said judgment, is
reproduced, as under:
"17. There is no gainsaying that custodial
interrogation is one of the effective modes of
investigating into the alleged crime. It is
equally true that just because custodial
2025:HHC:26557
30
interrogation is not required that by itself may
also not be a ground to release an accused on
anticipatory bail if the offences are of a serious
nature. However, a mere assertion on the part
of the State while opposing the plea for
anticipating bail that custodial interrogation is
required would not be sufficient. The State
would have to show or indicate more than
prima facie why the custodial interrogation of
the accused is required for the purpose of
investigation."
31. If the facts and circumstances of the present
case are judged in the light of the legal proposition, as
reproduced hereinabove, in the considered opinion of this
Court, the petitioner is able to make out a case for
interference in the orders, passed by the learned trial
Court, rejecting the applications for police remand, on 1 st
July, 2025 and 4th July, 2025.
32. So far as the adverse remarks, recorded by the
learned trial Court, in impugned order, dated 4 th July,
2025, are concerned, the learned trial Court has simply
branded the investigation as myopic and with the sole
intention to secure police custody of accused Manav Sharma
by any means possible. Not only this, the application for
police remand has also been held to be malafide and filed
with ulterior motives. Thereafter, recommendation has
2025:HHC:26557
31
been made to Director General of Police, Himachal Pradesh
and Superintendent of Police, Sirmaur, to take action
against him, by branding his conduct as reprehensible and
against the basic tenets of criminal jurisprudence. However,
in the order, no reason has been assigned for drawing the
above conclusion, as, the IO is seeking only the police
remand of respondent-Manav Sharma.
33. In such situation, question, which arises for
determination, before this Court, is as to whether the said
remarks are sustainable in the eyes of law or not?
34. In this regard, reliance can be placed on the
decision of the Hon'ble Supreme Court in State of Punjab
and anr. versus M/s. Shikha Trading Co., reported in
2023 (11) SCALE 661, wherein, the Hon'ble Supreme
Court, has re-iterated the earlier decisions and held, as
under:
17. By way of this appeal, we have been
asked to exercise powers, inherent in this
Court, to expunge remarks reproduced supra
against the said officer, from record. It would
be appropriate to consider the various
principles in respect of passing adverse
remarks against an officer- be it judicial, civil
(as in the present case) or police or army
personnel, and expunction thereof.
2025:HHC:26557
32
18. The three principles laid down in Naim
(supra) deal with what is required of the court,
prior to, finding it fit to pass adverse remarks.
18.1 It has been reasserted time and again
that remarks adverse in nature, should not be
passed in ordinary circumstances, or unless
absolutely necessary which is further qualified
by, being necessary for proper adjudication of
the case at hand. (Niranjan Patnaik v.
Sashibhusan Kar (1986) 2 SCC 569, two-
Judge Bench; Abani Kanta Ray v. State of
Orissa (1995) Supp (4) SCC 169, two-Judge
Bench; A.M. Mathur v. Pramod Kumar Gupta
(1990) 2 SCC 533; two-Judge Bench)
18.2 Remarks by a court should at all times be
governed by the principles of justice, fair play
and restraint. (Shivajirao Nilangekar Patil v.
Mahesh Madhav Gosavi, (1987) 1 SCC 227;
three-Judge Bench) Words employed should
reflect sobriety, moderation and reserve. {K.G
Shanti (supra)}
18.3 It should not be lost sight of and per
contra, always be remembered that such
remarks, "due to the great power vested in our
robes, have the ability to jeopardize and
compromise independence of judges"; and
may "deter officers and various personnel in
carrying out their duty". It further flows
therefrom that "adverse remarks, of serious
nature, upon the character and/or professional
competence of a person should not be passed
lightly". {E.Koyakunju (supra)}
19. Keeping the above principles in mind, the
power to expunge remarks may be exercised
by the High Court and this Court: -
19.1 With great caution and circumspection,
since it is an undefined power; (Dr. Raghubir
Saran v. State of Bihar, AIR 1964 SC 1; two-
Judge Bench)
2025:HHC:26557
33
19.2 Only to remedy a flagrant abuse of power
which has been made by passing comments
that are likely to cause harm or prejudice; {Dr.
Raghubir Saran (supra)}
19.3 In respect of High Courts exercising such
power, it has been observed:
19.3.1 The High Court, as the Supreme Court
of revision, must be deemed to have power to
see that courts below do not unjustly and
without any lawful excuse take away the
character of a party or of a witness or of a
counsel before it. {Panchanan Banerji v.
Upendra Nath Bhattacharji [AIR 1927 All 193,
as referred to in Sashibhusan Kar (supra)}
19.3.2 Though in the context of Judicial
officers, this Court has observed that "The role
of High Court is also of a friend, philosopher
and guide of judiciary subordinate to it. The
strength of power is not displayed solely in
cracking a whip on errors, mistakes or
failures; the power should be so wielded as to
have propensity to prevent and to ensure
exclusion of repetition if committed once
innocently or unwittingly. "Pardon the error but
not its repetition". This principle would apply
equally for all services. The power to control is
not to be exercised solely by wielding a
teacher's cane."
35. It would also be profitable to reproduce paras
10 to 15 of the judgment, rendered by the Hon'ble Supreme
Court in Neeraj Garg versus Sarita Rani and others,
reported in (2021) 9 Supreme Court Cases 92, as under:
"10. In Alok Kumar Roy vs. Dr. S.N. Sarma,
AIR 1968 SC 453, in the opinion written by
C.K. Wanchoo, J. for a five-Judge Bench, this
Court had emphasized that even in cases of
2025:HHC:26557
34
justified criticism, the language employed must
be of utmost restraint. The use of carping
language to disapprove of the conduct of the
Counsel would not be an act of sobriety,
moderation or restraint.
11.The judgment of this Court in A.M. Mathur
vs. Pramod Kumar Gupta, (1990) 2 SCC 533,
delivered by K. Jagannatha Shetty, J.,
elaborates on the need to avoid even the
appearance of bitterness. The Court observed
that: (SCC pp. 538-39, para 13)
13. ... The duty of restraint, this humility
of function should be constant theme of
our judges. This quality in decision
making is as much necessary for judges
to command respect as to protect the
independence of the judiciary. Judicial
restraint in this regard might be better
called judicial respect, that is respect by
the judiciary."
12. The importance of avoiding unsavory
remarks in judicial orders as per established
norms of judicial propriety has also been
succinctly noted in Abani Kanta Ray vs. State
of Orissa, 1996 SCC (L&S) 175, by J.S. Verma,
J. in the following words: (SCC p. 178, para
15)
"15. ... Use of intemperate language or
making disparaging remarks against
anyone, unless that be the requirement
for deciding the case, is inconsistent
with judicial behaviors. Written words in
judicial orders are for permanent record
which make it even more necessary to
practice self restraint in exercise of
judicial power while making written
orders."
13. The principles laid down as above, have
been quoted with approval and applied by this
Court in several subsequent judgments,
2025:HHC:26557
35
including for a three-Judge Bench in Samya
Sett vs. Shambhu Sarkar, (2005) 6 SCC 767.
In this case C.K. Thakker, J. writing for the
Court opined that the adverse remarks
recorded were neither necessary for deciding
the controversy raised before the Court nor an
integral part of the judgment, and accordingly
directed deletion of those remarks.
14. The proposition of law laid down by S.K.
Das, J. on behalf of the four-Judge Bench in
Mohd. Naim, AIR 1964 SC 703, on recording of
adverse remarks has been approved in a
catena of decisions since 1964. It was also
cited by the Supreme Court of Sri Lanka in
A.N. Perera Vs. D.L.H. Perera, 1982 SCC
OnLine SL SC 20, where Abdul Kadir, J.
speaking for the Bench approved of the tests
laid down by this Court and concluded that
the judge’s comments against the petitioner in
that case were thoroughly unwarranted under
each of those tests.
15. While it is of fundamental importance in
the realm of administration of justice to allow
the judges to discharge their functions freely
and fearlessly and without interference by
anyone, it is equally important for the judges
to be exercising restraint and avoid
unnecessary remarks on the conduct of the
counsel which may have no bearing on the
adjudication of the dispute before the court.”
36. If the impugned order, dated 4th July, 2025, is
seen, in the light of the decisions of the Hon’ble Supreme
Court, as reproduced hereinabove, this Court is of the view
that the remarks against the SHO, Police Station Majra,
and branding the investigation with the terminology, as
2025:HHC:26557
36
mentioned in the said order, do not pass the judicial
scrutiny by this Court, as, there is nothing on the record to
give an occasion, for the learned trial Court, to pass such
remarks. Thus, the same are liable to the expunged.
37. Judging the entirety of the facts and
circumstances of the present case, in view of the law
discussed hereinabove, as well as, the discussion made
above, the orders, dated 1st July, 2025 and 4th July, 2025,
passed by the learned trial Court, which are impugned
herein, do not sustain in the judicial scrutiny by this Court
and the same are liable to be set aside.
38. In view of the above, the petition is allowed and
the impugned orders, dated 1st July, 2025 and 4th July,
2025, passed by the learned trial Court, are set aside.
39. The Investigating Agency to move fresh
application for remand, before the learned trial Court,
today itself, i.e. 7th August, 2025. The matter is ordered to
be put up before the learned trial Court, at 03.00 p.m.,
with a direction to decide the application for remand, today
itself, in view of the discussions made hereinabove, in the
2025:HHC:26557
37
presence of the accused, i.e. respondent-Manav Sharma,
by issuing production warrant.
40. Any of the observations, made hereinabove,
shall not be taken as an expression of opinion, on the
merits of the case, as these observations, are confined,
only, to the disposal of the present petition.
41. Pending miscellaneous applications, if any, are
also disposed of accordingly.
42. Registry to forward a soft copy of this order to
the learned trial Court, forthwith, for compliance.
( Virender Singh )
Judge
August 07, 2025
( rajni )
Digitally signed
RAJNI by RAJNI
Date: 2025.08.07
10:12:39 +0530
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