The Allahabad High Court has set aside an order directing the registration of an FIR against a woman sub-inspector and other police personnel, holding that the Special Court failed to follow the mandatory procedure prescribed under the Bharatiya Nagarik Suraksha Sanhita (BNSS) before ordering an investigation against public servants.
The court observed that the impugned order was “non-speaking and non-reasoned” and suffered from “material non-application of mind”.
The single bench of Justice Santosh Rai passed the order on a criminal appeal filed by sub-inspector Sandhya Jaisawal, challenging the September 2, 2026, order of the Special Judge (SC/ST Act), Varanasi, on an application moved by Sushila Devi under Section 173(4) of the BNSS.
The complaint arose from an alleged incident on July 22, 2026, at around 2 am to 3 am, when Sandhya Jaisawal, accompanied by two unidentified police personnel, allegedly entered Sushila Devi’s (the complainant’s) house, used caste-related derogatory words against her and her family, and took away her son, Rohit Kumar Gautam.
Sushila Devi alleged that her son was illegally detained at Cholapur Police Station, Varanasi, without being informed of the grounds of arrest.
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According to the complaint, an FIR against Rohit Kumar was registered at around 1.58 pm, while his arrest was shown at around 2 am on July 23, 2026.
She alleged that this indicated detention for more than 24 hours.
She also claimed to possess a recording of her conversation with the sub-inspector and said CCTV footage from the police station could establish the alleged illegal detention.
After she approaches to the local police, and senior officers failed to result in registration of an FIR, she approached the Special Court seeking directions for registration of a case and an investigation.
The Special Judge allowed the application and directed the Station House Officer of Cholapur Police Station to register an FIR forthwith, ensure an impartial investigation by an independent gazetted officer, and submit a report within 15 days.
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The order referred to discrepancies in the police records and the material submitted by the complainant, including CCTV transcripts and the recording of her conversation.
Challenging the said order, petitioner submitted that the Special Court had passed the order without properly considering the police report dated August 25, 2026, her version and the material on record.
She submitted that Rohit Kumar had been apprehended on July 22 after information about his presence and was handed over to his mother on the same day under a supurdginama.
The petitioner further argued that the allegation of detention for more than 24 hours and also contended that the proceedings against her had arisen in the backdrop of a criminal case in which she was the investigating officer.
The High Court examined Sections 173(4) and 175(3) and (4) of the BNSS in the light of Supreme Court judgments, including Om Prakash Ambadkar vs. State of Maharashtra & Ors. (2026) 2 SCC 622 and XXX vs. State of Kerala & Ors. (2026) 6 SCC 770.
The bench emphasised that an application seeking registration of an FIR does not automatically entitle the complainant to an order directing investigation.
The court must examine the statutory requirements and apply its judicial mind to the allegations and the material placed before it.
Under Section 175(3) of the BNSS, a magistrate must consider an application supported by an affidavit, conduct such inquiry as considered necessary, and take into account the submission made by the police officer.
Section 175(4) provides an additional safeguard where a complaint against a public servant arises in the course of the discharge of official duties.
In such cases, the prescribed procedure includes obtaining a report from the officer superior to the public servant and considering the public servant’s explanation of the circumstances leading to the alleged incident.
The court ruled that these safeguards could not be treated as an empty formality.
The court observed that the purpose of the provision was to distinguish acts reasonably connected with official duties from those wholly unrelated to them.
At the same time, the court clarified that the official status of a police officer could neither conclusively protect the officer nor be ignored while examining the complaint.
The court found that the special judge had called for a police report but had failed to undertake a proper judicial examination of it alongside the allegations and the statutory requirements.
The record also contained a supurdginama dated July 22, 2026, bearing the complainant’s signature and mobile number, indicating that Rohit Kumar had been handed over to her.
The bench noted that if the Special Judge had doubts about the document’s genuineness or contents, the appropriate course was to seek clarification or call for the original document rather than disregard the material.
The court also found that Case Crime No. 300 of 2026 had been registered at Cholapur Police Station against Rohit Kumar under Sections 115(2), 69 and 351(3) of the Bharatiya Nyaya Sanhita (BNS), on the basis of information furnished by Anjana Kumari.
The FIR also referred to the complainant and her husband, Bhaiya Lal. Since petitioner was the investigating officer in that case, the surrounding circumstances were relevant to determining whether the allegations arose in the course of official duties and whether Section 175(4) applied.
The court clarified that,
“The manner in which the learned Special Judge, SC/ST Act, Varanasi, has dealt with the application under Section 173(4) BNSS is a matter of serious concern. The impugned order discloses a fundamental disregard of the statutory scheme of Sections 173(4) and 175(3) and (4) BNSS and the binding principles laid down by the Hon’ble Supreme Court. Such failure to adhere to the prescribed procedure reflects a serious lapse in the exercise of judicial discretion and cannot be sustained in law.”
Without expressing any final opinion on the truth of the allegations, the court held that the Special Judge was required to examine the available material objectively and follow the statutory procedure before directing criminal investigation.
The court took note of the fact that the failure to consider the police report, the officer’s explanation and the need for further inquiry amounted to a serious procedural lapse.
Accordingly, the court allowed the criminal appeal and set aside the impugned order dated September 2, 2026.
Case: Sandhya Jaisawal vs State of U.P. and Another
Case No.: Criminal Appeal No. – 9326 of 2026
Date of Order: 13.10.2026
Status: Allowed
