ANSIBA HASSAN vs STATE OF KERALA
- Court
- Kerala High Court
CNR : KLHC010566382026
2026:KER:67401
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TH
MONDAY, THE 7 DAY OF SEPTEMBER 2026 / 16TH BHADRA, 1948
CRL.MC NO. 6414 OF 2026
AGAINST THE ORDER DATED 27.07.2026 IN CRL.
MP(COMPLAINT) NO.1197 OF 2026 OF JUDICIAL MAGISTRATE OF FIRST
CLASS - IX, ERNAKULAM
PETITIONER:
ANSIBA HASSAN
AGED 36 YEARS
CHAKOLAS HEIGHTS, 5B, SEAPORT-AIRPORT ROAD,
CHITTETHUKARA, KAKKANAD, KOCHI, KERALA,
PIN - 682037
BY ADVS.
SHRI.MUHAMMED FIRDOUZ A.V.
SHRI.GENTLE C.D.
RESPONDENTS:
1 STATE OF KERALA
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 SHO PALARIVATTOM
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
3 DISTRICT POLICE CHIEF ERNAKULAM CITY
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
SMT. MEGHA K. XAVIER, SR. P.P.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
03.09.2026, THE COURT ON 07.09.2026 PASSED THE FOLLOWING:
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:2:
2026:KER:67401
‘C.R.’
O R D E R
This Criminal Miscellaneous Case has been filed by the complainant in
C.M.P. No. 1197/2026 on the file of the Judicial First Class Magistrate
Court-IX, Ernakulam. The said complaint was filed under Sections 210,
173(4) and 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS),
seeking a direction to the SHO, Palarivattom, to register an FIR and conduct
an investigation into the cognizable offences allegedly committed by the
accused.
2. The case of the petitioner, in brief, is as follows:
The petitioner is a well-known film actress in the Malayalam and Tamil
film industries and is also a life member of the Association of Malayalam
Movie Artists (AMMA). On 26.06.2026, the petitioner came across a short
video published on a social media platform containing sexually coloured
remarks and insinuations intended to outrage her modesty and insult her
dignity as a woman. The impugned video was released as a teaser for a
longer interview proposed to be streamed subsequently. The said video,
containing serious allegations concerning the character, morality, and
reputation of the petitioner, began circulating during the early hours of the
night on 26.06.2026. Following its circulation, the petitioner suffered severe
mental trauma and emotional distress. Having no other immediate remedy,
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:3:
2026:KER:67401
the petitioner approached the Station House Officer, Palarivattom Police
Station. The SHO assured the petitioner that immediate and appropriate
steps would be taken to prevent further dissemination of the video and that
necessary action would be initiated in accordance with law. However, no
effective action was taken. Consequently, the petitioner contacted the
Hon'ble Home Minister and apprised him of her grievance. Thereafter, the
SHO contacted the petitioner and informed her that an investigation had
already been initiated. However, at about 4.00 p.m. on 26.06.2026, the full
version of the interview was released and began circulating extensively
across various social media platforms. The said video contained false,
scandalous, and sexually coloured remarks directed against the petitioner,
which, according to the petitioner, gravely outraged her modesty and
portrayed her as a woman of immoral character who invites men to her
room for illicit activities. The publication and circulation of the said material
caused serious and irreparable injury to the petitioner's reputation, dignity,
and privacy.
3. Since the second respondent failed to take timely and effective
action, the petitioner submitted a written complaint before him, requesting
immediate legal action. However, on the very next day, the accused
published yet another video containing further false, scandalous, and
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:4:
2026:KER:67401
sexually coloured remarks against the petitioner, thereby causing a fresh
and grave affront to her modesty, dignity, and reputation. Having lost all
hope of securing effective action from the police, the petitioner submitted
another complaint before the City Police Commissioner, Ernakulam City,
seeking his immediate intervention and appropriate action. Despite the
same, no effective action was taken. Consequently, the petitioner was
constrained to approach the Judicial First Class Magistrate Court-IX,
Ernakulam, by filing a complaint seeking appropriate directions for
registration of an FIR and investigation into the cognizable offences
disclosed therein. The offences alleged include those punishable under
Sections 75(iv) and 79 of the Bharatiya Nyaya Sanhita, 2023 (BNS), Sections
67 and 67A of the Information Technology Act, 2000, and Section 119(a) of
the Kerala Police Act.
4. Upon receipt of the complaint, the learned Magistrate called for a
report from the SHO concerned. Pursuant thereto, the SHO submitted a
report stating that a preliminary inquiry had been conducted and that no
cognizable offences, as alleged by the petitioner, were disclosed during the
inquiry. In the said report, the SHO further opined that the petitioner could
institute appropriate proceedings against the accused for the offence of
defamation under Section 356 of the BNS.
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:5:
2026:KER:67401
5. The learned Magistrate, after considering the report and hearing
the parties, passed Annexure 7 order declining the petitioner's prayer under
Section 175(3) of the BNSS for a direction to the jurisdictional police to
register an FIR and investigate the cognizable offences disclosed in the
complaint. Instead, the learned Magistrate decided to proceed with the
matter as a private complaint and directed the petitioner to appear before
the court for recording her sworn statement. Aggrieved by the aforesaid
order, the petitioner has preferred the present Crl. M.C., inter alia, seeking
the following reliefs:
“a) Call for the records leading to the Annexure - 7 order dated
27.07.2026 passed by the learned Judicial First Class Magistrate Court -
IX, Ernakulam, in M.P.No.1197 of 2026;
b) Set aside the Annexure - 7 order dated 27.07.2026 passed by the
learned Judicial First Class Magistrate Court - IX, Ernakulam;
c) Direct the learned Judicial First Class Magistrate Court - IX,
Ernakulam, to exercise jurisdiction under Section 175(3) of the BNSS
and pass appropriate orders directing the jurisdictional police to register
an FIR on the basis of the petitioner’s complaint and conduct a fair,
impartial and time-bound investigation into the cognizable offences
disclosed therein;
d) Issue such other order or direction as this Hon’ble Court may deem fit
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:6:
2026:KER:67401
and proper in the facts and circumstances of the case, in the interests of
justice.”
6. I heard Sri. Muhammed Firdouz A.V., the learned Counsel for the
petitioner, Smt. Megha K. Xavier, the learned Senior Public Prosecutor
appearing for the respondents. The records were also perused.
7. The learned counsel for the petitioner submitted that the learned
Magistrate erred in holding that the complaint did not disclose any
cognizable offence and that the allegations disclosed, at the most, constitute
only the offence of defamation. According to the learned counsel, such a
conclusion could have been arrived at only after a proper investigation and
not at the pre-investigation stage. It was contended that a plain reading of
the complaint would prima facie disclose the commission of offences
punishable under Sections 75(iv) and 79 of the BNS, Sections 67 and 67A of
the Information Technology Act, 2000, and Section 119(a) of the Kerala
Police Act. According to the learned counsel, when the allegations contained
in the complaint prima facie disclose the commission of cognizable offences,
it was incumbent upon the learned Magistrate to exercise the power under
Section 175(3) of the BNSS and direct an investigation by the jurisdictional
police. It was further submitted that the learned Magistrate committed a
jurisdictional error in treating the application filed under Section 175(3) of
the BNSS as a private complaint and directing the petitioner to appear
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:7:
2026:KER:67401
before the court for recording her sworn statement, particularly when the
petitioner had not sought an order taking cognizance of the offences, but
had only sought a direction to the police to register an FIR and conduct an
investigation. The learned counsel submitted that, upon receipt of a
complaint disclosing the commission of a cognizable offence, the SHO was
legally bound to register an FIR and could not have conducted a preliminary
enquiry in lieu thereof. According to the learned counsel, the failure of the
Station House Officer to register an FIR is contrary to the principles laid
down by the Hon'ble Supreme Court in Lalita Kumari v. Government of
Uttar Pradesh & Ors. [(2014) 2 SCC 1]. On these premises, the learned
counsel submitted that the Annexure 7 order, whereby the learned
Magistrate declined to forward the complaint to the Station House Officer for
investigation and instead directed the petitioner to appear before the court
for recording her sworn statement, is liable to be set aside. It was
accordingly urged that appropriate directions be issued to the learned
Magistrate to direct the jurisdictional police to register an FIR and conduct
an investigation in accordance with law.
8. Per contra, the learned Senior Public Prosecutor opposed the
petition contending that the order passed by the learned Magistrate is
legally sustainable and does not warrant any interference. According to the
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:8:
2026:KER:67401
learned Senior Public Prosecutor, although the SHO had initially received a
complaint from the petitioner, the allegations contained therein did not
disclose, prima facie, the commission of any cognizable offence. It was
submitted that, for that reason, the SHO conducted a preliminary enquiry
after obtaining permission from the Assistant Commissioner of Police,
Ernakulam. The learned Senior Public Prosecutor contended that such a
preliminary enquiry was legally permissible in the facts and circumstances of
the case, particularly since the complaint did not, according to the police,
disclose the commission of a cognizable offence. It was further submitted
that the finding of the learned Magistrate in Annexure 7 that the allegations
contained in the complaint did not disclose any cognizable offence
warranting its forwarding to the SHO for investigation is proper and legally
sustainable and, therefore, does not call for interference. According to the
learned Senior Public Prosecutor, the learned Magistrate had already arrived
at a prima facie satisfaction that the allegations, at the most, attracted the
offence of defamation punishable under Section 356 of the BNS.
Consequently, the learned Magistrate rightly directed the complainant to
appear before the court for recording her sworn statement. It was therefore
submitted that the impugned order does not warrant any interference.
9. The present case arises from a complaint lodged by an actress in
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:9:
2026:KER:67401
the Malayalam film industry alleging that a fellow actress had given an
interview to an online channel containing false, scandalous, and sexually
coloured remarks against her, which, according to the petitioner, gravely
outraged her modesty and portrayed her as a woman of immoral character
who clandestinely invites men to her room for illicit activities. According to
the petitioner, the video containing the said interview was thereafter
released and widely circulated through various social media platforms,
thereby causing serious and irreparable injury to her reputation, dignity, and
privacy.
10. It is not in dispute that, upon coming to know of the publication
of the alleged scandalous video, the petitioner lodged a written complaint
before the Station House Officer concerned. According to the petitioner,
even after receipt of the complaint, no effective action was taken by the
Station House Officer, which constrained her to approach the superior police
authorities. As the intervention of the superior police authorities also did not
yield any result, the petitioner approached the jurisdictional Magistrate with
a complaint seeking a direction to the police to register an FIR and
investigate the matter.
11. It is discernible from the records that, after receipt of the
complaint, the Station House Officer conducted a preliminary enquiry.
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:10:
2026:KER:67401
During the course of the said enquiry, the statements of certain witnesses
were recorded. The enquiry was thereafter concluded with a finding that no
cognizable offence warranting registration of an FIR had been made out and
that the allegations, at the most, attracted the offence of defamation
punishable under Section 356 of the BNS.
12. It was thereafter that the petitioner approached the jurisdictional
Magistrate seeking a direction to the police to register an FIR and conduct
an investigation. The learned Magistrate, after considering the complaint
and the report submitted by the SHO, declined to forward the complaint for
investigation and instead directed the complainant to appear before the
court for recording her sworn statement. The learned Magistrate also arrived
at a prima facie satisfaction that the complaint did not disclose any
cognizable offence warranting a direction for investigation under Section
175(3) of the BNSS.
13. Before delving into the legality and propriety of the order passed
by the learned Magistrate, it is apposite to first consider the question
whether a SHO, upon receiving information disclosing the commission of a
cognizable offence, is at liberty to conduct a preliminary enquiry instead of
registering an FIR forthwith.
14. While considering the said question, it is necessary to refer to
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:11:
2026:KER:67401
the principles laid down by the Hon'ble Supreme Court in Lalita Kumari’s
case [cited supra]. In the said case, the Constitution Bench held that
registration of an FIR under Section 154 of the Code of Criminal Procedure,
1973, is mandatory where the information received by the police discloses
the commission of a cognizable offence. The Court further held that, in such
circumstances, a preliminary enquiry is ordinarily not permissible. At the
same time, the Constitution Bench recognised that where the information
received does not clearly disclose the commission of a cognizable offence, a
limited preliminary enquiry may be undertaken for the purpose of
ascertaining whether a cognizable offence is disclosed. Now it is worthwhile
to refer to paragraph 119 of Lalitha Kumari’s judgment, which reads as
follows;
“119. Therefore, in view of various counterclaims regarding registration or
non-registration, what is necessary is only that the information given to the
police must disclose the commission of a cognizable offence. In such a
situation, registration of an FIR is mandatory. However, if no cognizable
offence is made out in the information given, then the FIR need not be
registered immediately and perhaps the police can conduct a sort of
preliminary verification or inquiry for the limited purpose of ascertaining as to
whether a cognizable offence has been committed. But, if the information
given clearly mentions the commission of a cognizable offence, there is no
other option but to register an FIR forthwith. Other considerations are not
relevant at the stage of registration of FIR, such as, whether the information
is falsely given, whether the information is genuine, whether the information is
credible, etc. These are the issues that have to be verified during the investigation
of the FIR. At the stage of registration of FIR, what is to be seen is merely
whether the information given ex facie discloses the commission of
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:12:
2026:KER:67401
a cognizable offence. If, after investigation, the information given is found to
be false, there is always an option to prosecute the complainant for filing a
false FIR.”
15. The sum and substance of the principles laid down in Lalita Kumari
(supra) is that, where the information furnished to the police discloses the
commission of a cognizable offence, registration of an FIR is mandatory, and
a preliminary enquiry is not permissible. However, where the information
received does not, on its face, disclose the commission of a cognizable
offence, but indicates the necessity for further enquiry, a preliminary enquiry
may be conducted for the limited purpose of ascertaining whether the
information discloses the commission of a cognizable offence.
16. However, the said legal position has undergone a material change
with the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023. Section
173(3) of the BNSS expressly provides for a preliminary enquiry in specified
circumstances. Section 173 of the BNSS reads as follows:
“ Information in cognizable cases.--
(1) Every information relating to the commission of a cognizable offence,
irrespective of the area where the offence is committed, may be given orally or by
electronic communication to an officer in charge of a police station, and if given--
(i) orally, it shall be reduced to writing by him or under his direction, and be read
over to the informant; and every such information, whether given in writing or
reduced to writing as aforesaid, shall be signed by the person giving it;
(ii) by electronic communication, it shall be taken on record by him on being
signed within three days by the person giving it,
and the substance thereof shall be entered in a book to be kept by such officer in
such form as the State Government may by rules prescribe in this behalf:
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:13:
2026:KER:67401
Provided that if the information is given by the woman against whom an offence
under section 64, section 65, section 66, section 67, section 68, section 69, section
70, section 71, section 74, section 75, section 76, section 77, section 78, section
79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been
committed or attempted, then such information shall be recorded, by a woman
police officer or any woman officer:
Provided further that--
(a) in the event that the person against whom an offence under section 64,
section 65, section 66, section 67, section 68, section 69, section 70, section 71,
section 74, section 75, section 76, section 77, section 78, section 79 or section 124
of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or
attempted, is temporarily or permanently mentally or physically disabled, then
such information shall be recorded by a police officer, at the residence of the
person seeking to report such offence or at a convenient place of such person's
choice, in the presence of an interpreter or a special educator, as the case may be;
(b) the recording of such information shall be videographed;
(c) the police officer shall get the statement of the person recorded by a
Magistrate under clause (a) of sub-section (6) of section 183 as soon as possible.
(2) A copy of the information as recorded under sub-section (1) shall be given
forthwith, free of cost, to the informant or the victim.
(3) Without prejudice to the provisions contained in section 175, on receipt of
information relating to the commission of any cognizable offence, which is made
punishable for three years or more but less than seven years, the officer in charge
of the police station may with the prior permission from an officer not below the
rank of Deputy Superintendent of Police, considering the nature and gravity of the
offence,--
(i) proceed to conduct preliminary enquiry to ascertain whether there exists a
prima facie case for proceeding in the matter within a period of fourteen days; or
(ii) proceed with investigation when there exists a prima facie case.
(4) Any person aggrieved by a refusal on the part of an officer in charge of a
police station to record the information referred to in sub-section (1), may send
the substance of such information, in writing and by post, to the Superintendent of
Police concerned who, if satisfied that such information discloses the commission
of a cognizable offence, shall either investigate the case himself or direct an
investigation to be made by any police officer subordinate to him, in the manner
provided by this Sanhita, and such officer shall have all the powers of an officer in
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:14:
2026:KER:67401
charge of the police station in relation to that offence failing which such aggrieved
person may make an application to the Magistrate.”
17. It is, therefore, manifest that Section 173(3) of the BNSS
expressly provides for a preliminary enquiry in cases where information
relating to the commission of a cognizable offence punishable with
imprisonment for three years or more but less than seven years is received,
subject to the prior permission of an officer not below the rank prescribed
therein. The Hon'ble Supreme Court, in Imran Pratapgadhi v. State of
Gujarat [2025 INSC 410], considered the interplay between Sections
173(1) and 173(3) of the BNSS and held that Section 173(3) operates as an
exception to the general rule contained in Section 173(1). In paragraph 23
of the said judgment, the Hon'ble Supreme Court observed as follows:
“S.154 of the CrPC does not provide for making any preliminary inquiry. However,
as held in the case of Lalita Kumari, (2014) 2 SCC 1, a preliminary inquiry is
permissible if the information received does not disclose a cognizable offence and
indicates the necessity for an inquiry. A preliminary inquiry must be conducted
only to ascertain whether a cognizable offence is disclosed. However, sub-section
(3) of S.173 of the BNSS makes a significant departure from S.154 of the CrPC. It
provides that when information relating to the commission of a cognizable offence
which is made punishable for 3 years or more but less than 7 years is received by
an officer-in-charge of a police station, with the prior permission of a superior
officer as mentioned therein, the police officer is empowered to conduct a
preliminary inquiry to ascertain whether there exists a prima facie case for
proceeding in the matter. However, under S.154 of the CrPC, as held in the case
of Lalita Kumari, (2014) 2 SCC 1, only a limited preliminary inquiry is permissible
to ascertain whether the information received discloses a cognizable offence.
Moreover, a preliminary inquiry can be made under the CrPC only if the
information does not disclose the commission of a cognizable offence but
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:15:
2026:KER:67401
indicates the necessity for an inquiry. Sub-section (3) of S.173 of the BNSS is an
exception to sub-section (1) of S.173. In the category of cases covered by
sub-section (3), a police officer is empowered to make a preliminary inquiry to
ascertain whether a prima facie case is made out for proceeding in the matter
even if the information received discloses commission of any cognizable offence.
That is very apparent as sub-section (3) of S.173 refers explicitly to receiving
information relating to the commission of a cognizable offence. Therefore, in a
case where sub-section (3) of S.173 is applicable, even if the information
pertaining to the commission of any cognizable offence is received, an inquiry can
be conducted to ascertain whether a prima facie case exists for proceeding in the
matter. The intention appears to be to prevent the registration of FIRs in frivolous
cases where punishment is up to 7 years, even if the information discloses the
commission of the cognizable offence. However, under S.154 of the CrPC, the
inquiry permitted by paragraph 120.2 of the decision in the case of Lalita Kumari,
(2014) 2 SCC 1 is limited only to ascertain whether the cognizable offence is
disclosed.”
18. Keeping in view the aforesaid principles laid down by the Hon'ble
Supreme Court and the statutory scheme under Section 173(3) of the BNSS,
the preliminary enquiry conducted in the present case appears to have been
undertaken for the limited purpose of examining the nature of the
allegations and ascertaining whether the materials prima facie disclose the
commission of a cognizable offence warranting registration of an FIR.
Therefore, the preliminary enquiry conducted in the present case cannot be
characterised as an enquiry prohibited by the principles laid down in Lalita
Kumari (supra). The decision in Lalita Kumari cannot be understood as
nullifying or restricting the statutory power subsequently conferred by
Section 173(3) of the BNSS. Accordingly, the contention that the preliminary
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:16:
2026:KER:67401
enquiry conducted by the police was per se contrary to the law laid down in
Lalita Kumari (supra) cannot be accepted.
19. The principal challenge raised by the petitioner against
Annexure 7 order is that the learned Magistrate could not have concluded,
at the pre-investigation stage, that the allegations disclosed only the offence
of defamation and not any cognizable offence. The learned counsel for the
petitioner contended that a plain reading of the complaint would prima facie
disclose the commission of offences punishable under Sections 75(iv) and 79
of the BNS, Sections 67 and 67A of the Information Technology Act, 2000,
and Section 119(a) of the Kerala Police Act. According to the learned
counsel for the petitioner, once the complaint prima facie disclosed the
commission of a cognizable offence, the learned Magistrate ought to have
exercised the power under Section 175(3) of the BNSS and directed
investigation by the police. It was also contended that the petitioner had not
sought an order taking cognizance of the offences as a private complaint,
but had specifically sought a direction for police investigation.
20. While considering the aforesaid submission, it has to be borne in
mind that merely because a complainant seeks investigation under Section
175(3) of the BNSS, the Magistrate is not bound to mechanically order a
police investigation. The Magistrate is required to apply his or her judicial
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:17:
2026:KER:67401
mind to the allegations contained in the complaint and the materials placed
on record and determine whether the circumstances warrant an
investigation by the police. The power under Section 175(3) of the BNSS is
discretionary and is to be exercised judiciously.
21. At the same time, the Magistrate, while exercising the said
jurisdiction, cannot abdicate the duty to independently examine the
allegations contained in the complaint. The Magistrate is required to
ascertain whether the allegations, if taken at their face value, disclose the
commission of a cognizable offence and whether police investigation is
necessary in the circumstances of the case. If the allegations disclose only a
non-cognizable offence, such as defamation, it is open to the Magistrate to
proceed with the complaint in accordance with the procedure prescribed by
law. However, such a conclusion must be supported by reasons
demonstrating due application of mind to the specific allegations and the
ingredients of the offences alleged.
22. In the present case, it is evident from the records that the
learned Magistrate mainly relied upon the report submitted by the SHO and
the submissions made before the court and arrived at the conclusion that
the allegations did not disclose any cognizable offence and that the offence
prima facie attracted was one of defamation punishable under Section 356
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:18:
2026:KER:67401
of the BNS. The learned Magistrate accordingly directed the petitioner to
appear before the court for recording her sworn statement and to proceed
with the complaint in accordance with law.
23. This Court is conscious of the fact that the mere allegation that a
defamatory statement was made in an interview disseminated through an
online or social media platform would not, by itself, automatically attract
every penal provision invoked by the complainant. The ingredients of each
of the offences alleged have to be independently examined. In particular,
the applicability of Section 75(iv) of the BNS would depend upon the specific
statutory ingredients of that provision, particularly the nature of the alleged
remark and the identity of the person making it. In the case at hand, the
petitioner has a specific case that the statement made by the first accused,
who is her colleague, conveyed that the petitioner was engaged in an
improper sexual relationship or sexual conduct. Therefore, a proper
consideration of the complaint and the other materials on record, including
the tenor, nature, and context of the statements made during the interview,
is necessary to determine whether the ingredients of the alleged offence are
prima facie disclosed. More pertinently, an offence under Section 75(iv) of
the BNS can be committed only by a man. An offence under Section 75(iv)
of the BNS is a gender-specific offence, and the said offence would be
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:19:
2026:KER:67401
attracted only where the sexually coloured remark is made by a man. In the
present case, admittedly, the first accused is a woman. Therefore, the
applicability of Section 75(iv) of the BNS to the allegations against the first
accused would not arise. However, this circumstance, by itself, cannot be
determinative of whether the allegations disclose any other cognizable
offence under the provisions invoked by the petitioner.
24. In the present case, the petitioner has specifically alleged that
the statements made by the accused during the interview conveyed an
imputation of sexual impropriety and portrayed the petitioner as a woman
engaged in illicit sexual conduct. The petitioner has further alleged that the
said statements were deliberately disseminated through an online platform
and thereby caused injury to her dignity, reputation, and privacy. At this
stage, this Court is not called upon to express any final opinion regarding
the truth or otherwise of the allegations or the ultimate applicability of the
penal provisions invoked by the petitioner. Whether the allegations
ultimately satisfy all the ingredients of Section 79 of the BNS is a matter to
be considered by the competent court upon a proper examination of the
complaint and the materials placed before it.
25. What assumes significance in the present case is the manner in
which the learned Magistrate dealt with the petitioner's request under
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:20:
2026:KER:67401
Section 175(3) of the BNSS. In the impugned order, the learned Magistrate
has merely observed that, “at present, no such cognizable offence would
attract for forwarding the complaint to the SHO.” However, the order does
not contain any detailed consideration of the specific allegations made in the
complaint, the ingredients of the offences alleged, or the reasons for
rejecting the petitioner's contention that the allegations disclose cognizable
offences.
26. The complaint contains a specific allegation that the accused,
through an interview publicly disseminated through an online platform,
made statements which, according to the petitioner, lowered her dignity and
reputation in the estimation of viewers and imputed sexual impropriety to
her. In order to attract section 79 of the BNS, the main requirement is that
the accused must have intended to outrage the modesty of a woman.
Likewise, the words or gestures must be intended to reach that woman, that
is to see her, hear her, or must amount to intrusion upon her privacy.
Whether the allegations in the present complaint ultimately attract Section
79 of the BNS, or any other penal provision, is a matter which requires due
consideration on the basis of the specific allegations and the statutory
ingredients of the respective offences. At this stage, it would be
inappropriate for this Court to record any final finding on the merits of those
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:21:
2026:KER:67401
allegations.
27. Apart from noticing the rival submissions and the stand taken by
the SHO, the learned Magistrate has not independently considered the
specific allegations raised by the petitioner or examined whether those
allegations, if taken at their face value, satisfy the ingredients of any
cognizable offence. The learned Magistrate has also not considered whether
the nature of the allegations and the materials relied upon by the petitioner
warranted police investigation for the purpose of collecting evidence which
may not be available to the complainant herself.
28. In short, this Court is of the view that the learned Magistrate has
not adequately considered the complaint and the materials placed on record
before arriving at the conclusion that no cognizable offence was disclosed.
The impugned order, therefore, suffers from non-application of mind and
cannot be sustained.
29. Accordingly, the Crl. M.C. is allowed in part, and Annexure 7
order is set aside. The matter is remitted to the learned Magistrate for fresh
consideration. The learned Magistrate shall independently examine the
allegations contained in the complaint and the materials available on record
and determine, in accordance with law, whether the allegations prima facie
disclose the commission of a cognizable offence and, if so, whether the
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:22:
2026:KER:67401
circumstances warrant a direction for police investigation under Section
175(3) of the BNSS. The learned Magistrate shall also consider whether
police investigation is necessary for the purpose of collection of evidence
which cannot effectively be secured by the complainant herself.
The learned Magistrate shall pass a fresh, reasoned order in
accordance with law, uninfluenced by any of the observations contained in
this order on the merits of the allegations.
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
CRL.MC No. 6414 of 2026 CNR : KLHC010566382026
:23:
2026:KER:67401
APPENDIX OF CRL.MC NO. 6414 OF 2026
PETITIONER ANNEXURES
Annexure-1 A TRUE COPY OF THE COMPLAINT DATED
26.06.2026 SUBMITTED BEFORE THE 2ND
RESPONDENT, ALONG WITH THE ACKNOWLEDGMENT
RECEIVED THROUGH E-MAIL
Annexure 2 A TRUE COPY OF THE E-MAIL COMPLAINT DATED
29.06.2026 SUBMITTED BEFORE THE 3RD
RESPONDENT
Annexure-3 TRUE COPY OF THE COMPLAINT BEFORE JFCM IX,
ERNAKULAM DATED 01.07.2026
Annexure-4 TRUE COPY OF THE POLICE REPORT DATED
08.07.2026
Annexure-5 TRUE COPY OF CIRCULAR NO. 41/2020/PHQ
DATED 13.11.2020 ISSUED BY THE POLICE
HEADQUARTERS, KERALA,
Annexure 6 TRUE COPY OF THE ADVISORY DATED 12.10.2015
Annexure-7 TRUE COPY OF THE ORDER OF THE JFCM IX,
ERNAKULAM DATED 27.07.2026