The Kerala High Court has dismissed a plea filed by three police officers who wanted to stop a rape investigation ordered against them by a Magistrate court in Ponnani. Justice Jobin Sebastian, in an order dated July 17, 2026, held that allegations of rape and sexual assault cannot be treated as acts done in the discharge of official duty, no matter who the accused person is.
Background Of The Case
The case goes back to September 2024, when a woman filed a complaint with the Station House Officer, Ponnani, accusing a Circle Inspector of Police, a Deputy Superintendent of Police from Thirur, and the Superintendent of Police, Malappuram, of rape and sexual harassment. According to her complaint, the trouble started in 2022 when she approached the Circle Inspector over a property dispute involving her house. What followed, she alleged, was a chain of incidents involving all three officers - assault, intimidation, and threats to keep quiet.
Since the police did not act on her complaint, the woman moved the Judicial First Class Magistrate Court, Ponnani, with a private complaint under Section 210 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), citing offences including rape and criminal intimidation against the three officers.
What made this case procedurally complicated was Section 175(4) of the BNSS. This provision says that if a complaint is against a public servant for something done "in the course of discharge of official duty," the Magistrate must first call for a report from the officer's superior and consider the public servant's side before ordering any investigation. The petitioners argued this safeguard was mandatory here since they are police officers.
The case travelled a long road before reaching this order - a writ petition, a Single Judge order, a Division Bench appeal, and finally the Supreme Court, which sent the matter back to the Magistrate to decide afresh. The Magistrate eventually forwarded the complaint for investigation under Section 175(3) of the BNSS. The three officers then approached the High Court to have that order set aside.
Arguments Raised By The Petitioners
Senior Advocate S. Sreekumar, appearing for the petitioners, raised two main points. First, that the Magistrate should have compulsorily obtained a report from a superior officer under Section 175(4) before ordering investigation, since the accused were policemen. Second, that the complaint's affidavit was sworn before an Advocate and not before an authority listed under Section 333 of the BNSS, and hence the application was flawed.
Court's Observations
Justice Sebastian rejected both arguments. On the first point, the court said the protection under Section 175(4) only applies when there is a genuine link between the alleged act and the accused's official duties - not simply because the accused happens to be a public servant.
The judge observed,
"Acts which are 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 or purported discharge of official duty."
Taking the complaint's allegations at face value for the limited purpose of deciding this legal question, the court found no connection between the alleged acts and the officers' police duties, and said the Magistrate was right to reach the same conclusion.
On the affidavit issue, the court turned to Rule 40 of the Criminal Rules of Practice, Kerala, which allows affidavits to be sworn before an advocate, among other authorities. The judge held that this rule works alongside Section 333 of the BNSS rather than against it, and that swearing the affidavit before an advocate served the same purpose the law intended - making the complainant accountable for her statements.
The court also noted that the petitioners could not show any actual harm caused by this technical difference.
Decision
Finding no legal or jurisdictional error in the Magistrate's order, the High Court dismissed the Criminal Miscellaneous Case filed by the three police officers, allowing the investigation directed by the Ponnani Magistrate Court to proceed.
Case Details:
Case Title: Vinod Valiyattoor & Others vs. State of Kerala & Another
Case Number: CRL.MC No. 5826 of 2026
Judge: Justice Jobin Sebastian
Decision Date: July 17, 2026
