Court Holds That When Special Judge Finds No Prima Facie Offence Under POCSO Act, Application Under Section 175(3) BNSS Should Be Transmitted to Magistrate Instead of Automatic FIR Registration
In a significant ruling on September 14, 2026, the Delhi High Court, presided over by Justice Girish Kathpalia, granted interim relief to police officers challenging an order directing the registration of a First Information Report (FIR) against them under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The officers, including Sub Inspector Jitender and Inspector Sunil Kumar, had been ordered by the Special Judge (POCSO Act) to face FIR registration following allegations made by a respondent who resisted the arrest of her son.
The background of the case involves police officials from Delhi and Faridabad, who attempted to arrest the son of the respondent, a person implicated in several criminal cases. During the operation, the respondent allegedly resisted the arrest and threatened the police with complaints under the Protection of Children from Sexual Offences (POCSO) Act, 2012, based on purported accusations by her granddaughters. The entire incident was video recorded by the police team, which included three lady constables.
After the respondent filed an application under Section 175(3) BNSS before the Special Judge (POCSO Act), the Judge directed the Deputy Commissioner of Police (DCP) to register an FIR against the petitioners under relevant BNSS provisions. However, the Special Judge also recorded a prima facie finding that no offence under the POCSO Act was made out after reviewing the CCTV and video footage related to the incident.
The petitioners challenged the order before the Delhi High Court, contending that once the Special Judge finds no prima facie offence under the POCSO Act, the application under Section 175(3) BNSS should not lead to automatic FIR registration but must be transmitted to the concerned Magistrate for further evaluation. Senior Counsel for the petitioners argued that the impugned order bypassed this procedural safeguard, thereby prejudicing the police officers.
The State's Additional Public Prosecutor supported the petitioners' stance. In contrast, counsel for the respondent argued that the prima facie finding by the Special Judge did not bar the police from registering an FIR under BNSS provisions if sufficient material existed. They emphasized that Sections 175(3), 173, and 199 of BNSS mandate mandatory FIR registration by local police without preliminary inquiry.
Justice Kathpalia acknowledged the complexity of the issue and noted that detailed arguments were required to address whether the Special Judge's finding of no offence under the POCSO Act should necessitate forwarding the application to a Magistrate instead of ordering FIR registration. The Court stayed the operation of the impugned order, restraining FIR registration until the next hearing scheduled for December 18, 2026.
Additionally, the Court directed the requisition of digitized records from the POCSO Court and ordered the Station House Officers of Jaitpur Police Station and Mahila Thana, Sector-16, Faridabad, to file complete records related to the incident for comprehensive scrutiny.
This judgment highlights the critical procedural question regarding the interplay between the POCSO Act and the BNSS, particularly concerning the mandatory registration of FIRs under Section 175(3) BNSS when a Special Judge under POCSO law finds no prima facie offence. The Court's interim stay underscores the necessity for careful judicial evaluation before compelling FIR registration, ensuring that procedural safeguards are not circumvented in sensitive cases involving allegations of sexual offences against children.
Bottom Line:
Application under Section 175(3) BNSS must be carefully evaluated, especially when the Special Judge under POCSO Act records a prima facie finding that no offence under the POCSO Act is made out. Such applications ought to be transmitted to the concerned Magistrate rather than resulting in an automatic direction for FIR registration under other statutes.
Statutory provision(s):
Bharatiya Nagarik Suraksha Sanhita, 2023 Section 175, Section 173, Section 199; Protection of Children from Sexual Offences (POCSO) Act, 2012 (referenced)
Sub Inspector Jitender v. State (NCT of Delhi), (Delhi) : Law Finder Doc Id # 2981927
