Three things a magistrate must do before ordering an investigation — and an order that did none of them
Justice Santosh Rai sets aside an order directing investigation into a night raid alleged by two Scheduled Caste women, holding that Section 175(3) of the BNSS imposes three distinct duties and that the omission “goes to the very exercise of jurisdiction” — and circulates the judgment to every judicial officer in the State.
Two women of the Chamar caste, aged twenty-nine and twenty-six, told a Special Court under the SC/ST Act that in the small hours of 7 June 2026 a Sub-Inspector, a constable and some twenty policemen forced their way into their house in Maharajganj district without a search warrant and with no woman officer present; that when the women objected the party turned aggressive, behaved obscenely, refused them access to the bathroom and abused them by reference to their caste; and that when they complained to the Superintendent of Police nothing happened. The Special Judge directed investigation. On 9 October 2026 the Allahabad High Court set that direction aside — not because it disbelieved the women, whose allegations remain unadjudicated, but because the order said nothing about the three things the BNSS requires a court to do first.
What the application alleged
The application was made under Section 173(4) of the Bharatiya Nagarik Suraksha Sanhita, the provision that allows a person whose information the police have refused to register to approach the court.
According to it, a land and money dispute existed between the applicants' family and another. On the night of 6 June 2026 a clash occurred in which two men were injured. Later that night the police took away four men. Around one or two in the morning the police party arrived at the applicants' house. The offences alleged were under Sections 74, 351 and 333 of the Bharatiya Nyaya Sanhita and Sections 3(1)(r) and 3(1)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. On 10 June threats were said to have been received by telephone. The applicants informed the Superintendent of Police on 12 June, received no response, and went to court — on their account, out of fear of being implicated in false cases themselves.
By order of 11 August 2026 the Special Judge acted on the application. The Sub-Inspector named in it brought this appeal.
Three distinct requirements
The judgment's contribution is to break Section 175(3) into its components and insist that each be visible on the face of the order.
The provision requires, the Court held, three things: consideration of the application supported by affidavit; the making of “such inquiry as the Magistrate thinks necessary”; and consideration of the submission made by the police officer. “A bald direction for registration/investigation, without advertence to the words and after making such inquiry as he thinks necessary and without considering the submission of the police officer, would render the additional safeguards incorporated by the Legislature meaningless.” The requirement of a reasoned judicial order “assumes greater significance where the record already contains a police report, relevant facts or other contemporaneous material which is capable of throwing light upon the allegations”.
The third limb is the one most often skipped, and the Court explained its purpose. The statutory scheme requires the court to consider not merely the applicant's version but also the explanation or material placed by the police about the alleged refusal to register the case and the circumstances surrounding it. “The object is to ensure that the Magistrate exercises an informed judicial discretion after considering both sides of the relevant record and does not mechanically convert an allegation into a direction for police investigation.”
Section 175(4), which deals with allegations against a public servant arising in the discharge of official duties, required separate attention here for an obvious reason: the persons accused were police officers, and on the very day in question police action had taken place in connection with a cognizable case in which people connected with the dispute had been arrested. Those circumstances were “directly relevant to determine whether the allegations made against the police personnel represented acts wholly unconnected with their official functions or arose in the course of police action”. The Special Judge was required to consider whether an inquiry into that was necessary before directing investigation.
What the order did not contain
Measured against those requirements, the order failed on each. The Special Judge recorded no finding that the inquiry contemplated by Section 175(3) had been undertaken, and disclosed no reason why none was considered necessary despite the police report and the contemporaneous material on the record. There was no meaningful consideration of the police officer's submission.
One detail makes the omission harder to defend: the police report in question had been called for by the Special Judge himself, and the order does not engage with it.
“The omission is not a mere procedural irregularity but goes to the very exercise of jurisdiction under Section 175(3) BNSS.” The approach was also held inconsistent with a line of Supreme Court authority running through Priyanka Srivastava, Ramdev Food Products, Babu Venkatesh, Anil Kumar and Om Prakash Ambadkar. The Special Judge was not justified in proceeding on the allegations in the application “as though they constituted conclusive material for directing criminal investigation”. The order, being non-speaking and suffering from material non-application of mind, could not be sustained.
Order and circulation
The appeal was allowed and the order of 11 August 2026 set aside, together with any consequential proceedings arising solely out of it.
What follows is unusually wide. The District and Sessions Judge is to monitor compliance with the directions in the monthly meetings of judicial officers, and the District Monitoring Cell to review it in its monthly meetings with district administration officers. A copy of the judgment goes to the Registrar General of the High Court for circulation among all judicial officers in Uttar Pradesh for strict compliance with the principles and guidelines it contains; a further copy to the Director of the Judicial Training and Research Institute at Lucknow, for appropriate guidance of all judicial officers in the State; and copies to every District Magistrate, Senior Superintendent and Superintendent of Police and Commissioner of Police in the State.
It is worth being clear about what has and has not been decided. Nothing in the judgment finds that the night of 6 June happened as the two women describe it, or that it did not. Their application returns to the Special Court, which must now do the statutory exercise properly — consider the affidavit, decide whether an inquiry is needed and say why, and deal with what the police say about the refusal to register. The practical effect is that an order in their favour has gone, and the question of whether an FIR will be registered against twenty-odd policemen is open again. The procedural safeguard the Court has enforced cuts both ways, which is the nature of safeguards; its value will depend on whether the reasoned order, when it comes, is reasoned in both directions.