Kerala HC Dismisses Police Officers' Plea Against Rape Complaint Referral, Holds Section 175(4) BNSS Safeguards Inapplicable to Sexual Assault Allegations

The Kerala High Court ruled that BNSS Section 175(4) procedural protections for public servants do not apply when a woman alleges rape and sexual assault by police officers, upholding the Ponnani magistrate's order forwarding the complaint for investigation.

Three Kerala Police officers — a Circle Inspector, a Deputy Superintendent of Police, and a Superintendent of Police — challenged the order of the Judicial First Class Magistrate Court, Ponnani, which forwarded a private complaint of rape and sexual assault against them for police investigation. Justice Jobin Sebastian, sitting singly at the High Court of Kerala at Ernakulam, dismissed their Criminal Miscellaneous Case on 17 July 2026. The court held that the procedural safeguards under Section 175(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — which require a superior officer's report before a magistrate can order investigation of a public servant — are triggered only where the alleged act bears a reasonable nexus with the discharge of official duties. Allegations of rape and sexual assault carry no such nexus.

The Woman's Complaint and the Allegations

On 6 September 2024, the second respondent lodged a complaint before the Station House Officer, Ponnani, alleging rape by the Circle Inspector of Police, Ponnani, the Deputy Superintendent of Police, Thirur, and the Superintendent of Police, Malappuram.

According to the complaint, the series of events began in 2022 when she approached the Circle Inspector to lodge a complaint over a house-title dispute. That same night at 10:00 p.m., the C.I. visited her home. With her younger son, a friend, and the friend's six-year-old child present, he took her to a bedroom on the pretext of sharing a secret, then raped her, promising to secure the title deed of the house in her name, and warned her to stay silent.

When she later tried to contact the C.I., he directed her to the Dy.S.P. She met the Dy.S.P. after two weeks. He made “sexually coloured comments” and, after visiting her residence in a private car in casual wear, grabbed her and kissed her. She raised an alarm.

She then approached the Superintendent of Police. He received her complaint but later contacted her on WhatsApp and directed her to a location called Changuvetty. A third party, introduced as the S.P.'s authorised person, took her by autorickshaw to a house where, the complaint states, the S.P. subjected her to rape and oral sex, and she was forced to have intercourse with the S.P.'s companion despite her resistance. The S.P. offered her Rs. 500, which she returned, and threatened her with dire consequences if she spoke out.

The complainant filed a private complaint before the Ponnani magistrate under Section 210 of the BNSS, alleging offences under Sections 375, 376(2)(a)(i), 377, 354, 354A(1), 354B, 354D, 506, 446 and 450 read with 34 of the Indian Penal Code against the three officers.

The Procedural Journey Before This Court

After receiving the complaint, the magistrate — noting that the accused were public servants — called for a report from a superior officer under Section 175(4) of the BNSS. The complainant challenged that decision before the High Court.

A learned Single Judge of this Court, by order dated 18 October 2024, held that compliance with Section 175(4) BNSS was not mandatory in the circumstances, since the alleged acts could not be regarded as committed in the discharge of official duties. The magistrate was directed to pass orders within ten days. On 24 October 2024, the magistrate ordered registration of an FIR.

The three officers preferred a writ appeal. A Division Bench of this Court allowed the appeal on 13 November 2024, setting aside both the Single Judge's order and the FIR registration order. The Division Bench did not decide the substantive legal question. It held that intervention under Article 226 of the Constitution of India was premature while the complaint remained pending before the magistrate, that no order of the magistrate had actually been under challenge when the Single Judge issued directions, and that the remedy under the BNSS had not been exhausted. The Division Bench directed the magistrate to decide the matter afresh on its merits, uninfluenced by any observations made by either bench.

The complainant appealed to the Supreme Court. In Criminal Appeal No. 4629 of 2025, the Supreme Court dismissed the appeal but directed the magistrate to consider all contentions raised by the parties. In paragraph 59 of its judgment, the Supreme Court expressly left it open to the complainant to urge before the magistrate that the acts complained of were not in discharge of official duties and that an FIR could be directed without necessarily considering the earlier superior officer's report. The Supreme Court also directed the magistrate to first satisfy himself that the application under Section 175(3) BNSS was accompanied by an affidavit conforming to Section 333 of the BNSS.

Following those directions, the magistrate heard both sides and, by the impugned order, forwarded the complaint to the Station House Officer, Ponnani, for investigation under Section 175(3) of the BNSS. The three officers then filed the present Criminal Miscellaneous Case.

The Two Grounds Urged by the Petitioners

Senior Counsel Sri. S. Sreekumar, appearing for the three officers, pressed two grounds before Justice Sebastian.

First, the petitioners argued that Section 175(4) of the BNSS was mandatory in this case because the accused were police officers and the allegations related, at least tangentially, to their contact with the complainant in a public-servant capacity. The magistrate, they said, was bound to obtain and consider a superior officer's report and hear the public servants before exercising jurisdiction under Section 175(3).

Second, the petitioners contended that the affidavit filed with the complaint was sworn before an advocate, not before any of the authorities enumerated in Section 333 of the BNSS, namely a Judge, Judicial Magistrate, Executive Magistrate, Commissioner of Oaths appointed by a High Court or Court of Session, or a notary appointed under the Notaries Act, 1952. Since the Supreme Court had specifically directed compliance with Section 333, the affidavit, they argued, was fatally defective and invalidated the magistrate's order.

On Whether Section 175(4) Applied

Justice Sebastian began his analysis with the text of Section 175(4) of the BNSS, which requires a magistrate, upon receiving a complaint against a public servant arising in course of the discharge of his official duties, to obtain a superior officer's report and consider the public servant's assertions before ordering investigation. The court held that a plain reading of the provision makes it clear that the procedural safeguards are not attracted merely because the accused is a public servant. There must be a reasonable nexus between the act complained of and the discharge of official functions.

The court reasoned that the nature of the act, not the status of the accused, determines whether Section 175(4) is invoked. Acts wholly unrelated to official functions, or which constitute a clear abuse of official position for personal ends, cannot ordinarily be regarded as acts done in the discharge of official duty. On the allegations in this case — rape and sexual assault by police officers approached for redressal of a property dispute — Justice Sebastian held that it was impossible to find any reasonable nexus with the discharge of official duties.

The court also addressed the petitioners' argument that the magistrate's earlier act of calling for a superior officer's report amounted to a finding that Section 175(4) had been triggered. The impugned order itself clarified that the superior officer's report was obtained only as a matter of abundant caution and was not to be construed as an invocation of Section 175(4) or a finding that the alleged acts arose in the discharge of official duties. The magistrate had specifically recorded that allegations of rape and sexual assault could never be regarded as acts committed in the discharge of official duties.

Justice Sebastian held that the magistrate's approach was fully supported by the Supreme Court's judgment in Criminal Appeal No. 4629 of 2025, which had expressly left it open to the magistrate to independently determine whether the alleged acts had any nexus with official duties and to order FIR registration even without considering the earlier superior officer's report if the nexus was found absent.

“Once such a finding was reached, there was no legal necessity to await or consider the report obtained from the superior officer, since the very foundation for invoking Section 175(4) of the BNSS had ceased to exist.” The court found no perversity, illegality, or jurisdictional error in the magistrate's reasoning.

On the Affidavit and Section 333 BNSS

The second ground required the court to examine the interplay between Section 333 of the BNSS and Rule 40 of the Criminal Rules of Practice, Kerala.

Section 333 of the BNSS provides that affidavits used before any court under the Sanhita may be sworn or affirmed before a Judge, Judicial Magistrate, Executive Magistrate, Commissioner of Oaths appointed by a High Court or Court of Session, or a notary appointed under the Notaries Act, 1952. The affidavit in this case was sworn before an advocate.

Rule 40 of the Criminal Rules of Practice, Kerala, permits affidavits for use before criminal courts to be sworn or affirmed before, among others, an advocate. Justice Sebastian noted that Rule 40 was framed with full awareness of Section 297 of the Code of Criminal Procedure, which is the provision corresponding to Section 333 of the BNSS, both being materially similar in content.

The court observed that the Supreme Court, when it issued the direction regarding Section 333 compliance, was not called upon to examine the interplay between Section 333 and Rule 40. The question of whether an affidavit authenticated under the Criminal Rules of Practice, Kerala, or of the competence of persons listed in Rule 40 to authenticate such an affidavit, had neither arisen before the Supreme Court nor been adjudicated by it. The Supreme Court's direction had to be read in the context of the controversy actually before it.

Justice Sebastian then examined the legislative object behind the affidavit requirement under Section 175(3) BNSS: to discourage false, frivolous, and vexatious complaints and to ensure that a complainant takes personal responsibility for allegations before invoking the magistrate's jurisdiction to direct a police investigation. The court held that this object is equally achieved when the affidavit is duly authenticated by an advocate under Rule 40. Rule 40 was not in conflict with Section 333 of the BNSS; rather, it supplements the provision.

The petitioners had also not demonstrated any prejudice resulting from the affidavit having been authenticated by an advocate rather than one of the authorities listed in Section 333. The court held that the defect, if any, was not so fundamental as to invalidate the magistrate's order, particularly when the affidavit was filed before a court and fulfilled the object for which the requirement was introduced.

Order

Justice Jobin Sebastian found no ground warranting interference with the magistrate's order. The Criminal Miscellaneous Case was dismissed. The magistrate's order forwarding the private complaint to the Station House Officer, Ponnani, for investigation under Section 175(3) of the BNSS was upheld.