Safiya Malik

The High Court of Kerala Single Bench of Justice A. Badharudeen set aside a Special Court order that had taken cognizance of alleged caste-based insults under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act on a protest complaint filed by the de facto complainant, after the investigating agency filed a refer report seeking closure. Holding that the Special Court’s order did not show whether the refer report was examined or accepted or rejected, and lacked reasons, the High Court remanded the matter for fresh consideration with a speaking, reasoned order after verifying the refer report, following the procedure under the Code of Criminal Procedure.

The appeal arose from an order passed by the Special Court for trial of offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Nedumangad, taking cognizance of offences under Sections 3(1)(r) and 3(1)(s) of the Act against the sole accused. The case originated from a private complaint dated 17.03.2022 filed by the de facto complainant, which was forwarded for police investigation. An FIR was registered and after investigation, the Investigating Officer submitted a final report dated 30.06.2022 requesting that further action be dropped.

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Upon notice of the refer report, the complainant filed a protest complaint. The Special Court recorded statements of five witnesses and thereafter passed an order taking cognizance against the accused while dismissing the complaint against another accused. The appellant challenged this order contending that cognizance was taken without reasons and without considering the final report. The respondent opposed interference, contending that the order reflected prima facie satisfaction. Reference was also made to the applicability of the Code of Criminal Procedure in light of Section 531 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

The Court recorded that the impugned order read: “Heard. Perused records and evidence. Prima facie case made out to proceed against the accused (No.1) for the offences punishable U/ss.3(1)(r) and 3(1)(s) of the SC/ST (POA) Act 1989. No offence made out against A2 and complaint A2 is dismissed. Adress Sessions Judge for assign Sessions Case number. Call on 18. 12..2024.”

Examining the order, the Court observed that “the order does not contain what are the materials referred by the learned Special Judge to find prima facie that the appellant herein committed offences punishable under Section 3(1)(r) and (s) of the SC/ST (PoA) Act, 2018 so as to take cognizance against him.”

It further observed that “as far as Annexure A14 refer report is concerned, whether it was accepted or rejected by the Special Judge also could not be seen from Annexure A16 order.”

The Court stated that “when a final report with request to drop the proceedings would be filed by the Investigating Officer after investigation, despite issuance of notice to the complainant or the aggrieved person concerned, the court has a duty to verify the report with a view to either accept or reject the same, or to order further investigation, as the case may be.”

It recorded that “in the instant case, no such procedure is seen to have been adopted, as the same could not be discernible from Annexure 16 order.”

The Court further observed that “Annexure A16 order is also a blanket and cryptic order without reasons.” It added that “when serious offences under the SC/ST (PoA) Act, viz., 3(1)(r) and 3(1)(s), are alleged, the Special Court should pass a reasonable order justifying the cognizance and a cryptic order simply taking cognizance would not suffice the said purpose.”

On the applicability of limitation under Section 14A(3) of the Act, the Court noted that it had earlier held the provision unconstitutional. It also referred to the decision interpreting Section 531 of the BNSS and recorded that “in view of the operation of Section 531 of BNSS, pending proceedings are to be continued under the repelled law, i.e, Cr.P.C.”

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The Court ordered that “this appeal is allowed. Annexure A16 order is set aside and Crl.M.P.No.2192/2025 is remanded back to the Special Court to consider the same afresh and to pass a speaking order justifying the cognizance, or otherwise, in the interest of justice, following the procedure laid down in Cr.P.C. The 3rd respondent is directed to appear before the Special Court either in person or through a counsel on 27.02.2026.”

Advocates Representing the Parties

For the Petitioners: Sri. Arun Chand, Shri. Pramod S.K., Shri. Vinayak G. Menon, Shri. Thareeq Anver, Shri. Bharat Vijay P., Smt. Minu Vittorria Paulson, Smt. Archana P.P., Smt. Shehroon Patel A.K.

For the Respondents: Sri. K.K. Dheerendrakrishnan, Smt. N.P. Asha, Public Prosecutor

Case Title: Nisha V. Nair v. State of Kerala & Ors.

Neutral Citation: 2026: KER:10639

Case Number: CRL.A No. 2285 of 2025

Bench: Justice A. Badharudeen