XXX Vs. STATE OF KERALA

JUDGEMENT

(1.) This appeal, by special leave, calls in question an order of reversal of a Division Bench of the High Court of Kerala at Ernakulam, whereby a writ appeal of the fifth respondent stood allowed and the judgment and order under challenge of a Single Judge was set aside. Important questions relating to interpretation of certain provisions of the recently enacted Bharatiya Nagarik Suraksha Sanhita, 2023 are involved in the appeal. Although the facts of the appeal are not too complicated and, hence, the same could have been decided by a short order, we thought it appropriate to consider the rival arguments in some depth since, by the time we reserved judgment and even thereafter, there has been no authoritative pronouncement of this Court on the interplay between subsec. s (3) and (4) of Sec. 175, BNSS, which creates a nuanced framework for determining the overall scope thereof. Having regard to the same, while concluding our judgment, we also wish to indicate in brief the considerations that ought to weigh in the minds of the magistrates, empowered under Sec. 210, BNSS, while they are seized of applications/complaints alleging commission of an offence by a public servant in course of discharge of his official duty as well as provide a guide for due exercise of the power to direct investigation.

(2.) While pursuing a complaint relating to a property dispute, the appellant was, allegedly, sexually assaulted by three police officers on separate occasions. The first incident occurred in January 2022, when R-5 visited her residence under the pretext of discussing the matter (relating to the property dispute) privately and, allegedly, proceeded to rape her. The second incident followed in quick succession, also in January 2022, when a senior officer of the rank of Deputy Superintendent of Police (not a party herein), to whom she had complained about the first incident, allegedly behaved inappropriately with her in her house. The third incident took place in August 2022, when another senior officer of the rank of Superintendent of Police (also not a party herein), to whom she had complained about the previous two incidents, under the guise of offering help, allegedly called her to an isolated location and raped her.

(3.) The second incident led the appellant to lodge a complaint with the office of the Superintendent of Police, in August 2022. This complaint was forwarded to the office of the Deputy Superintendent of Police which on 11/10/2022 submitted a report stating that the allegations in the complaint filed by the appellant were untrue.