A complaint against police officers needed the Section 175(4) safeguards, and the order that skipped them is gone
Justice Santosh Rai set aside a Special Judge's order under Section 173(4) of the BNSS, holding it non-speaking and made without the inquiry the statute requires.
The Bharatiya Nagarik Suraksha Sanhita, 2023 builds two filters into the route by which a private complaint can set the criminal process going. Section 175(3) lets a magistrate order an investigation only after considering the police report and, where he thinks fit, making an inquiry. Section 175(4) adds a further layer where the person complained against is a public servant acting in the discharge of official functions. On 13 October 2026 the Allahabad High Court set aside an order that engaged neither, in a case where the persons complained against were a sub-inspector and two other police personnel.
The complaint
The application was made before the Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act at Varanasi, under Section 173(4) of the BNSS. The complainant's case was that in the early hours of 22 July 2026 a sub-inspector and two unidentified police personnel forcibly entered her house, used caste-related derogatory words against her and her family, and took her son away, detaining him at the police station without disclosing the grounds of arrest.
She alleged that the first information report against her son was registered later the same afternoon while his arrest was shown as made at about 2 a.m. the following day, which on her case meant illegal detention for more than twenty-four hours. She said she had a recording of a telephone conversation with the sub-inspector, and that the station's CCTV footage would bear out the detention. She also set out a background of earlier enmity, and a criminal case her son had lodged against another person.
What the Special Judge ordered
The order under appeal allowed the application. The Special Judge noted that the fact of taking the complainant's son away at night was admitted, though the supurdginama regarding his custody was not produced with the police report, and that the video recording and other material filed by the complainant prima facie indicated both the night-time removal and the entry into her house with caste-related abuse. She had also filed written transcripts of the station's CCTV footage and of the recorded conversation.
On that basis the Station House Officer was directed to register an FIR forthwith on the complaint, to ensure an impartial investigation by an independent gazetted officer, and to submit the investigation report to the Court within fifteen days, with a copy of the order sent for compliance.
The discretion that had to be exercised
Before examining the order, the High Court set out the principles governing the exercise of judicial power on an application of this kind: it has to be exercised judicially, with due application of mind, and not mechanically or as a matter of course. It went to State of Haryana v. Bhajan Lal for the categories in which the process can be stopped — among them, where the allegations taken at face value do not prima facie constitute any offence, and where the material accompanying a first information report does not disclose a cognizable offence justifying police investigation except on a magistrate's order.
What the Special Judge did not do
The High Court's criticism is specific rather than general. The Special Judge had called for a police report, and the circumstances on the record indicated contemporaneous police action and earlier criminal cases involving the complainant. Despite that, the order contains no finding on whether an inquiry under Section 175(3) was necessary, and no cogent reasons for dispensing with such an inquiry.
Nor was Section 175(4) addressed at all. Where the allegations are against police officers and other public servants, the applicability and requirements of that provision had to be specifically considered, against the material disclosing the earlier police action. The absence of any finding on these aspects, the Court held, demonstrates that the statutory safeguards introduced by Sections 175(3) and 175(4) were overlooked.
The Court described the manner in which the application had been dealt with as a matter of serious concern, disclosing a fundamental disregard of the statutory scheme and of binding principles laid down by the Supreme Court, and reflecting a serious lapse in the exercise of judicial discretion. The order was non-speaking and non-reasoned, and suffered from material non-application of mind.
What follows
On that footing the Court held that the Special Judge had failed to exercise the jurisdiction vested in him in accordance with the mandatory provisions of Sections 175(3) and 175(4) of the BNSS, and that the order could not be sustained in law.
Order
The appeal was allowed. The order of 2 September 2026 passed by the Special Judge under the SC/ST Act at Varanasi on the application under Section 173(4) of the BNSS was set aside, and any consequential proceedings arising out of it stand quashed. The Registrar (Compliance) was directed to serve a copy of the order within forty-eight hours by fax or e-mail.