Procedural Safeguards Under Section 175(4) of Bharatiya Nagarik Suraksha Sanhita, 2023 Deemed Inapplicable
In a significant ruling, the Kerala High Court has dismissed a Criminal Miscellaneous Case filed by three police officers accused of rape and sexual assault, asserting that procedural safeguards under Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) do not apply in this case. The court underscored that the alleged actions did not arise in the discharge of official duties.
The case stems from allegations by a woman, the second respondent, who accused the Circle Inspector of Police, Ponnani, the Deputy Superintendent of Police, Thirur, and the Superintendent of Police, Malappuram, of sexual assault. The woman claimed that she was subjected to rape and molestation while seeking resolution for a property dispute.
The Judicial First Class Magistrate Court, Ponnani, had initially called for a report from a superior officer, as per Section 175(4) of the BNSS. However, the High Court, led by Justice Jobin Sebastian, noted that such procedural steps were unnecessary given that the alleged acts bore no reasonable nexus to the police officers' official duties. The court highlighted that actions unrelated to official functions or abuses of position for personal ends are not protected under this section.
The High Court also addressed contentions regarding the accompanying affidavit for the complaint, which was authenticated by an advocate rather than a judicial authority as specified in Section 333 of the BNSS. Justice Sebastian ruled that the legislative objective of deterring false complaints is achieved as long as affidavits are authenticated by recognized authorities under the Criminal Rules of Practice, Kerala.
This judgment follows a prior decision by the Supreme Court, which directed the Magistrate to consider the case's merits independently of previous observations by higher courts. The Kerala High Court's decision reinforces the stance that allegations of this nature, involving police officers, require thorough investigation without procedural hindrances that do not apply.
Bottom line:-
Allegations of rape and sexual assault against public servants are not considered acts arising in the course of the discharge of their official duties. Therefore, procedural safeguards under Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) are not applicable.
Statutory provision(s): Sections 175(3), 175(4), 210, 333 of the Bharatiya Nagarik Suraksha Sanhita, 2023; Sections 375, 376(2)(a)(i), 377, 354, 354A(1), 354B, 354D, 506, 446, 450 r/w 34 of the Indian Penal Code.
Vinod Valiyattoor v. State of Kerala, (Kerala) : Law Finder Doc id # 2942454
