Kerala HC Sets Aside Magistrate's Order Refusing FIR Direction in Actress Ansiba Hassan's Complaint Over Viral Interview
Justice Jobin Sebastian held the Magistrate applied no independent mind to the complaint's cognizable-offence allegations and remitted the matter for fresh, reasoned consideration under Section 175(3) of the BNSS.
The High Court of Kerala at Ernakulam has set aside an order passed by the Judicial First Class Magistrate Court-IX, Ernakulam, which had refused to direct the Station House Officer, Palarivattom, to register an FIR on a complaint filed by film actress Ansiba Hassan. Justice Jobin Sebastian, sitting singly, found that the Magistrate had not independently examined whether the allegations in the complaint prima facie disclosed the commission of a cognizable offence, and had instead relied substantially on the SHO's preliminary enquiry report. The court remitted the matter for fresh consideration, directing the Magistrate to pass a reasoned order. The judgment also clarifies how Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) modifies the preliminary-enquiry framework laid down by the Supreme Court in Lalita Kumari v. Government of Uttar Pradesh.
The Complaint and What Preceded It
Ansiba Hassan, described in the proceedings as a well-known actress in the Malayalam and Tamil film industries and a life member of the Association of Malayalam Movie Artists (AMMA), lodged the original complaint on 26 June 2026. On that date, she came across a short video published on a social media platform. The video, released as a teaser for a longer interview, contained what the petitioner described as false, scandalous, and sexually coloured remarks about her character, modesty, and personal conduct. The teaser began circulating during the early hours of the night on 26 June 2026.
The petitioner approached the SHO, Palarivattom Police Station, on the same night. The SHO assured her that steps would be taken to prevent further dissemination and that legal action would follow. No effective action was taken. The petitioner then contacted the Home Minister. Thereafter the SHO informed her that an investigation had already been initiated. Despite that, at around 4.00 p.m. on 26 June 2026, the full version of the interview was released and circulated extensively across social media platforms. The petitioner alleged the full interview portrayed her as a woman of immoral character who invites men to her room for illicit activities.
On the very next day, the accused published yet another video containing further remarks against the petitioner. Having received no effective relief from the police, the petitioner submitted complaints before the SHO, and subsequently before the City Police Commissioner, Ernakulam City. When those too yielded no result, she approached the Judicial First Class Magistrate Court-IX, Ernakulam, on 1 July 2026, seeking a direction to the SHO to register an FIR and investigate offences allegedly 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.
The Magistrate's Order and What the SHO Reported
After receiving the complaint under Sections 210, 173(4), and 175(3) of the BNSS, the Magistrate called for a report from the SHO. The SHO's report, dated 8 July 2026, stated that a preliminary enquiry had been conducted and that no cognizable offences as alleged were disclosed. The SHO further opined that the petitioner could institute proceedings against the accused for defamation under Section 356 of the BNS.
Acting on this report, the Magistrate passed the impugned order dated 27 July 2026. The Magistrate declined to forward the complaint for police investigation under Section 175(3) of the BNSS and instead directed the petitioner to appear before the court for recording her sworn statement, effectively treating the application as a private complaint. The Magistrate recorded a prima facie satisfaction that no cognizable offence was disclosed and that the allegations attracted, at most, the offence of defamation.
Aggrieved by that order, the petitioner filed Crl. M.C. No. 6414 of 2026 before the High Court, seeking to set aside the Magistrate's order and to direct the Magistrate to exercise jurisdiction under Section 175(3) of the BNSS.
The Legal Question: Preliminary Enquiry Under the BNSS and Lalita Kumari
Before addressing the Magistrate's order directly, Justice Sebastian examined a foundational question: whether a SHO who receives information disclosing a cognizable offence may conduct a preliminary enquiry instead of registering an FIR.
The court recalled the Constitution Bench ruling in Lalita Kumari v. Government of Uttar Pradesh & Ors. [(2014) 2 SCC 1], which held that registration of an FIR under Section 154 of the Code of Criminal Procedure, 1973, is mandatory where information discloses a cognizable offence, and that a preliminary enquiry is ordinarily impermissible in such cases. A limited preliminary enquiry was permitted only where the information did not clearly disclose a cognizable offence.
Justice Sebastian noted that the legal position has undergone a material change with the enactment of the BNSS. Section 173(3) of the BNSS expressly empowers the officer in charge of a police station, with the prior permission of an officer not below the rank of Deputy Superintendent of Police, to conduct a preliminary enquiry within fourteen days where information relates to a cognizable offence punishable with imprisonment for three years or more but less than seven years. The court quoted paragraph 23 of the Supreme Court's judgment in Imran Pratapgadhi v. State of Gujarat [2025 INSC 410], which had explained that Section 173(3) operates as an exception to Section 173(1) of the BNSS and permits a preliminary enquiry even where the information received does disclose the commission of a cognizable offence, with the stated purpose of preventing registration of FIRs in frivolous cases within that sentencing band.
Applying this framework, the High Court held that the preliminary enquiry conducted by the Palarivattom SHO could not be characterised as one prohibited by Lalita Kumari. The SHO had obtained permission from the Assistant Commissioner of Police before conducting the enquiry. The court observed: “The decision in Lalita Kumari cannot be understood as nullifying or restricting the statutory power subsequently conferred by Section 173(3) of the BNSS.” This part of the petitioner's challenge — that the preliminary enquiry itself was illegal — was therefore rejected.
Why the Magistrate's Order Could Not Stand
The court then turned to the central grievance: that the Magistrate had wrongly concluded, without proper reasoning, that no cognizable offence was disclosed.
Justice Sebastian accepted that the power under Section 175(3) of the BNSS is discretionary and that a Magistrate is not bound to mechanically order police investigation merely because a complainant requests it. The Magistrate must apply judicial mind to the allegations and the materials on record. Where allegations disclose only a non-cognizable offence such as defamation, the Magistrate may proceed with the complaint as a private complaint. 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.
The court pointed out that the impugned order contained only the bare observation that “at present, no such cognizable offence would attract for forwarding the complaint to the SHO.” There was no detailed consideration of the specific allegations, no examination of the ingredients of the offences invoked, and no reasoning for rejecting the petitioner's contention that the allegations disclosed cognizable offences.
On the question of Section 75(iv) of the BNS — which covers sexually coloured remarks — the court noted that this is a gender-specific offence and can be committed only by a man. Since the first accused in the present case is a woman, Section 75(iv) would not apply to the allegations against her. However, the court was careful to add that this circumstance alone could not determine whether the complaint disclosed any other cognizable offence under the provisions invoked.
The court found it necessary to consider Section 79 of the BNS separately. That provision requires that the accused must have intended to outrage the modesty of a woman and that the words or gestures must have been intended to reach her or amount to intrusion upon her privacy. The petitioner's specific case was that the accused, her colleague, conveyed through the interview that the petitioner was engaged in improper sexual conduct, and that the interview was deliberately disseminated through an online platform, causing injury to her dignity, reputation, and privacy. Justice Sebastian held that whether the allegations ultimately satisfy all the ingredients of Section 79 of the BNS was a matter requiring proper examination by the competent court, and this Court was not expressing any final opinion on the merits at this stage.
The Magistrate had also not considered whether police investigation was necessary for the purpose of collecting evidence which the complainant herself could not effectively secure — a factor the High Court held to be relevant to the exercise of discretion under Section 175(3) of the BNSS.
Outcome
Justice Sebastian allowed Crl. M.C. No. 6414 of 2026 in part. The Annexure 7 order dated 27 July 2026 passed by the Judicial First Class Magistrate Court-IX, Ernakulam, was set aside. The matter was remitted to the learned Magistrate for fresh consideration.
The Magistrate was directed to independently examine the allegations in the complaint and the materials 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 circumstances warrant a direction for police investigation under Section 175(3) of the BNSS. The Magistrate was also specifically directed to consider whether police investigation is necessary for the collection of evidence that cannot effectively be secured by the complainant herself.
The Magistrate was required to pass a fresh, reasoned order uninfluenced by any observations made in the High Court's order on the merits of the allegations. The order was signed on 7 September 2026, the matter having been finally heard on 3 September 2026.