Court Emphasizes Magistrate’s Duty to Independently Assess Cognizable Offence Allegations Under Bharatiya Nagarik Suraksha Sanhita, 2023 and Remands Case for Fresh Consideration
In a significant ruling delivered on September 7, 2026, the Kerala High Court, presided over by Justice Jobin Sebastian, partially allowed a Criminal Miscellaneous Case filed by Ansiba Hassan, a prominent film actress, against the State of Kerala. The Court set aside the order passed by the Judicial First Class Magistrate Court-IX, Ernakulam, which had refused to direct the police to register an FIR and investigate the cognizable offences alleged by the petitioner relating to the circulation of a defamatory video.
The petitioner had approached the Magistrate seeking a direction under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for police investigation into offences allegedly committed by a fellow actress, who had released a video containing sexually coloured remarks and insinuations aimed at outraging the petitioner’s modesty and tarnishing her reputation. Despite initial complaints to the police, no effective action was taken, compelling the petitioner to seek judicial intervention.
The Magistrate, relying on a preliminary enquiry report by the Station House Officer (SHO), concluded that the complaint did not disclose any cognizable offence and that the allegations amounted only to defamation under Section 356 of the Bharatiya Nyaya Sanhita, 2023 (BNS). Consequently, the Magistrate declined to order police investigation and instead directed the petitioner to appear before the court for recording her sworn statement.
Challenging this order, the Kerala High Court examined the scope and application of Sections 173 and 175 of the BNSS, especially in light of the Supreme Court’s landmark judgment in Lalita Kumari v. Government of Uttar Pradesh (2014) 2 SCC 1, which mandates mandatory FIR registration when information discloses a cognizable offence. The Court noted that Section 173(3) of the BNSS permits a preliminary enquiry by the police only in cases where the offence is punishable with imprisonment between three and seven years, subject to prior permission from a superior officer. The preliminary enquiry conducted in this case was thus held to be lawful and not contrary to Lalita Kumari.
However, the High Court underscored that the Magistrate must independently apply judicial mind to the allegations in a complaint under Section 175(3) of the BNSS and provide detailed reasons when rejecting a request for police investigation. The Court found that the Magistrate had failed to adequately consider the specific allegations, the statutory ingredients of the offences invoked, and the necessity for police investigation to collect evidence inaccessible to the complainant.
Furthermore, the Court clarified that the offence under Section 75(iv) of the BNS, which pertains to outraging a woman’s modesty by a man, could not be applied to the female accused in this case, but this did not preclude the applicability of other cognizable offences alleged by the petitioner. The Court refrained from expressing any opinion on the merits of the allegations, emphasizing that such determinations are to be made after proper investigation.
Accordingly, the Kerala High Court set aside the Magistrate’s order and remanded the matter for fresh consideration. The Magistrate was directed to independently examine whether the allegations prima facie disclose cognizable offences and whether investigation by the police is warranted. The Court mandated that the fresh order be reasoned, reflecting due application of mind in accordance with law and uninfluenced by the observations in the High Court’s judgment.
This ruling reinforces the procedural safeguards and judicial scrutiny required in complaints alleging cognizable offences, particularly in cases involving gender-specific offences and sensitive issues such as defamation and outrage of modesty in the digital age.
Detailed Explanation of the Judgment and Legal Principles:
1. Background of the Case:
Ansiba Hassan, a prominent film actress, faced derogatory and sexually charged remarks in a video interview released online by a fellow actress. The petitioner alleged that the video outraged her modesty and damaged her reputation. Despite complaints to the police, no FIR was registered, and no investigation was conducted. The petitioner then sought judicial intervention via the Magistrate under Section 175(3) of BNSS 2023, requesting the police to register an FIR and investigate the cognizable offences.
2. Magistrate’s Order and Grounds of Challenge:
The Magistrate declined to order police investigation, holding that the complaint did not disclose cognizable offences and that the case was limited to defamation. This was based largely on the SHO’s preliminary enquiry report. The petitioner challenged this decision, arguing that the Magistrate must independently evaluate the allegations and that an FIR registration was mandatory as the complaint prima facie disclosed cognizable offences.
3. Supreme Court Precedent - Lalita Kumari Case:
The Supreme Court in Lalita Kumari held that police must register an FIR when information discloses a cognizable offence. Preliminary enquiry is allowed only if the information does not disclose a cognizable offence but indicates the need for further inquiry.
4. New Legal Framework under BNSS 2023 – Section 173(3):
BNSS 2023 introduced a statutory provision allowing police to conduct a preliminary enquiry in cases of offences punishable with imprisonment between three and seven years, subject to prior permission from a superior officer. This is an exception to the strict Lalita Kumari rule and aims to prevent frivolous FIRs in such cases.
5. Court’s Analysis on Preliminary Enquiry:
The preliminary enquiry by the SHO in this case was lawful under Section 173(3) BNSS 2023 because the offences alleged fall within the specified punishment range. Therefore, the police were justified in conducting the enquiry before FIR registration.
6. Magistrate’s Duty Under Section 175(3) BNSS 2023:
The Magistrate has discretionary power to order police investigation after independently applying judicial mind to the complaint allegations. The Magistrate must assess if the complaint discloses cognizable offences and if police investigation is necessary to collect evidence. A mere mechanical denial of investigation without detailed reasons is legally untenable.
7. Gender-Specific Offence Under Section 75(iv) BNS 2023:
The Court clarified that Section 75(iv) pertains only to offences committed by men and cannot be invoked against the female accused here. However, this does not negate the possibility that other cognizable offences may be disclosed.
8. Court’s Conclusion and Directions:
The Magistrate’s order was set aside due to non-application of mind and lack of detailed reasoning. The case was remanded for fresh consideration, directing the Magistrate to carefully evaluate the allegations and decide on the necessity of police investigation with proper reasons.
Bottom Line:
Under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a Magistrate is required to independently evaluate the allegations in a complaint and determine whether they disclose a cognizable offence and warrant police investigation. Failure to provide detailed reasoning for rejecting a request for police investigation may render the Magistrate's order unsustainable.
Statutory provision(s):
Section 175(3) BNSS 2023, Section 173 BNSS 2023, Section 75(iv) BNS 2023, Section 79 BNS 2023, Sections 67, 67A IT Act 2000, Section 119(a) Kerala Police Act, Section 356 BNS 2023
Ansiba Hassan v. State of Kerala, (Kerala) : Law Finder Doc Id # 2973689
