The Kerala High Court has partially allowed the petition of Malayalam actress Ansiba Hassan, who had alleged sexually colored remarks against her on social media, and remitted the matter back to the Magistrate for fresh consideration of plea seeking registration of the FIR.

Hassan assailed the order refusing to direct the police to register an FIR under Section 175(3) of the BNSS for alleged offences under the BNS, IT Act, and Kerala Police Act.

The Bench emphasized that while ordering a police investigation is not automatic, the Magistrate erred by failing to independently apply judicial mind and provide reasoned grounds for declining the investigation.

The Bench of Justice Jobin Sebastian held, "What assumes significance in the present case is the manner in which the learned Magistrate dealt with the petitioner's request under Section 175(3) of the BNSS. In the impugned order, the learned Magistrate has merely observed that, “at present, no such cognizable offence would attract for forwarding the complaint to the SHO. ” However, the order does not contain any detailed consideration of the specific allegations made in the complaint, the ingredients of the offences alleged, or the reasons for rejecting the petitioner's contention that the allegations disclose cognizable offences."


Advocate Muhammed Firdouz AV appeared for the Petitioner, while Sr. PP Megha K Xavier appeared for the Respondents

Brief Facts

The Petitioner, a well-known actress in the Malayalam and Tamil film industries, came across a short video published on a social media platform containing sexually coloured remarks and insinuations intended to outrage her modesty and insult her dignity as a woman.

Consequently, she approached the Police Station, and the SHO assured her that the immediate and appropriate steps would be taken to prevent further dissemination of the video and that necessary action would be initiated in accordance with law. However, no effective action was taken.

On the same day, the full video of the interview was released, and on the very next day, the accused published yet another video containing further false, scandalous, and sexually coloured remarks against the petitioner, thereby causing a fresh and grave affront to her modesty, dignity, and reputation.  The petitioner approached the Magistrate by filing a complaint seeking appropriate directions for registration of an FIR for the offences punishable under Sections 75(1)(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 SHO submitted that a preliminary inquiry disclosed no cognizable offences and suggested initiating defamation proceedings under Section 356 of the BNS instead. The Magistrate passed the impugned order, declining to direct the police to register an FIR under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and choosing instead to proceed with the matter as a private complaint by taking her sworn statement.

Aggrieved, the petitioner preferred the present petition to set aside the impugned order and direct a police investigation into the cognizable offences.

Contentions of the Parties

The Petitioner submitted that the Magistrate erred in holding that the complaint did not disclose any cognizable offence and that the allegations disclosed, at the most, constitute only the offence of defamation. Such a conclusion could have been arrived at only after a proper investigation and not at the pre-investigation stage. It was contended that a plain reading of the complaint would prima facie disclose the commission of offences.

It was further submitted that the Magistrate committed a jurisdictional error in treating the application filed under Section 175(3) of the BNSS as a private complaint and directing the petitioner to appear before the court for recording her sworn statement, particularly when the petitioner had not sought an order taking cognizance of the offences, but had only sought a direction to the police to register an FIR and conduct an investigation.

Per Contra, the State opposed the petition contending that the order passed by the Magistrate is legally sustainable and does not warrant any interference. Although the SHO had initially received a complaint from the petitioner, the allegations contained therein did not disclose, prima facie, the commission of any cognizable offence. It was submitted that, for that reason, the SHO conducted a preliminary enquiry after obtaining permission from the Assistant Commissioner of Police.

Observations/Findings of the Court

After analyzing the law and the legal precedents on mandatory registration of FIR, the Court noted that the preliminary enquiry conducted in the present case appears to have been undertaken for the limited purpose of examining the nature of the allegations and ascertaining whether the materials prima facie disclose the commission of a cognizable offence warranting registration of an FIR. Therefore, the preliminary enquiry conducted in the present case cannot be characterised as an enquiry prohibited by the principles laid down in the Lalita Kumari judgment. The decision in Lalita Kumari cannot be understood as nullifying or restricting the statutory power subsequently conferred by Section 173(3) of the BNSS. 

Further, the Court observed that merely because a complainant seeks investigation under Section 175(3) of the BNSS, the Magistrate is not bound to mechanically order a police investigation. The Magistrate is required to apply his or her judicial mind to the allegations contained in the complaint and the materials placed on record and determine whether the circumstances warrant an investigation by the police. The power under Section 175(3) of the BNSS is discretionary and is to be exercised judiciously.

"At the same time, the Magistrate, while exercising the said jurisdiction, cannot abdicate the duty to independently examine the allegations contained in the complaint. The Magistrate is required to ascertain whether the allegations, if taken at their face value, disclose the commission of a cognizable offence and whether police investigation is necessary in the circumstances of the case. If the allegations disclose only a non-cognizable offence, such as defamation, it is open to the Magistrate to proceed with the complaint in accordance with the procedure prescribed by law. 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 added.

It was also observed that the mere allegation that a defamatory statement was made in an interview disseminated through an online or social media platform would not, by itself, automatically attract every penal provision invoked by the complainant.

The Court also added that an offence under Section 75(1)(iv) of the BNS is a gender-specific offence, and the said offence would be attracted only where the sexually coloured remark is made by a man. In the present case, admittedly, the first accused is a woman. Therefore, the applicability of Section 75(1)(iv) of the BNS to the allegations against the first accused would not arise. 

 The Court held, "Apart from noticing the rival submissions and the stand taken by the SHO, the learned Magistrate has not independently considered the specific allegations raised by the petitioner or examined whether those allegations, if taken at their face value, satisfy the ingredients of any cognizable offence. The learned Magistrate has also not considered whether the nature of the allegations and the materials relied upon by the petitioner warranted police investigation for the purpose of collecting evidence which may not be available to the complainant herself."

It was concluded that the Magistrate did not consider the complaint and the materials placed on record before arriving at the conclusion that no cognizable offence was disclosed.

Accordingly, the Court allowed the petition in part, and remitted the matter to the Magistrate for fresh consideration.

Cause Title: Ansiba Hassan v. State of Kerala & Ors. [Neutral Citation:2026:KER:67401]

Appearances:

Petitioner: Advocate Muhammed Firdouz AV and Advocate Gentle CD

Respondents: Sr. PP Megha K Xavier 

Click here to read/download the Order

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