The order raises a clean question of criminal procedure. A Special Judge under the POCSO Act, having examined the material, recorded a prima facie finding that no offence under that Act was made out, and yet directed the police to register an FIR under the general penal law against the officers concerned. Should the Special Judge, on finding the special statute inapplicable, have decided the FIR-registration plea at all, or transmitted it to the jurisdictional Magistrate? The Delhi High Court, finding the question substantial and the time short, stayed the order and posted the matter for detailed hearing.
New Delhi: The Delhi High Court has stayed an order of a Special Judge (POCSO Act) that had directed the registration of an FIR under the Bharatiya Nyaya Sanhita against a group of police officers, framing for consideration the question whether, where a Special Judge finds that no offence under the special statute is made out, an application under Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita ought to be transmitted to the jurisdictional Magistrate [Sub Inspector Jitender and Others v. State (NCT of Delhi) and Another].
Justice Girish Kathpalia, hearing two connected revision petitions by the police officers, stayed the operation of the impugned order and listed the matter for detailed hearing.
The background
According to the account placed before the Court on behalf of the petitioners, a team of police officers from Delhi and Faridabad, including women constables, had gone to the residence of the second respondent in Badarpur to apprehend her son, said to be involved in a number of criminal cases, with the relevant General Diary entries recorded at the police stations concerned. The petitioners’ case is that the second respondent resisted her son’s arrest and threatened to have the officers falsely implicated in POCSO cases through complaints by her granddaughters, that the proceedings were video recorded, that the son could not be found, and that the second respondent was taken to a police station and then to a women’s police station for questioning.
The second respondent, for her part, filed an application under Section 175(3) BNSS before the Special Judge (POCSO Act), which the Special Judge allowed by the order now under challenge. These are the competing accounts of the two sides; none has been tested, and the Court expressed no view on the merits of either.
The procedural question
The petitioners pointed to paragraph 47 of the impugned order, in which, they submitted, the Special Judge had recorded a prima facie finding, after perusing CCTV footage and video recordings, that no offence under the POCSO Act was made out. Their contention was that once the Special Judge reached that finding, the application under Section 175(3) BNSS ought to have been transmitted to the jurisdictional Magistrate, rather than decided by the Special Judge, whose special jurisdiction is referable to the POCSO Act.
The second respondent countered that the paragraph 47 findings were only prima facie and did not amount to a direction to the local police not to register a POCSO case if the necessary material was available, and that Section 175(3) read with Section 173 BNSS and Section 199 BNS makes registration of an FIR mandatory, without any preliminary inquiry, where a cognizable offence is disclosed. The State, through the Additional Public Prosecutor, supported the petitioners.
The Court noted a feature of the operative part of the impugned order that sharpened the issue: the Special Judge had directed registration of an FIR not merely under some provision of law, but specifically under the relevant provisions of the BNS. That, the Court observed, made it necessary to deliberate on whether a Special Judge who finds no offence under the statute conferring the special jurisdiction is made out should decide the Section 175(3) application or transmit it to the magisterial court, a question on which both sides needed to address at length.
The interim order
Recording that it had heard senior counsel for both sides for about forty minutes but could not take detailed arguments given the late hour and a heavy board, the Court stayed the operation of the impugned order until the next date, and listed the matter for December 18, 2026. It also directed that the digitized record of the POCSO Court be requisitioned, and that the Station House Officers of the two police stations concerned file their complete records. The Court had earlier been shown a further order of the POCSO Court issuing notice to the Deputy Commissioner of Police to explain non-compliance with the FIR direction.
Why it matters
The question the Court has framed is a genuine gap in the working of the new procedural code. Section 175(3) BNSS empowers a Magistrate to direct registration of an FIR and investigation where a complaint discloses a cognizable offence, and the Supreme Court has held that, unlike its predecessor Section 156(3) CrPC, the provision requires the Magistrate to apply his mind to the police submissions before so directing. A Special Judge under a statute such as the POCSO Act exercises a jurisdiction conferred for the purposes of that statute; the issue is what such a judge should do with an FIR-registration plea once satisfied, prima facie, that the special statute is not attracted at all.
Two positions are in tension, and the Court has reserved both for argument. On the petitioners’ view, a Special Judge whose competence flows from the special statute cannot, having found that statute inapplicable, proceed to direct an FIR under the general penal law; the plea should go to the ordinary Magistrate who has that jurisdiction. On the second respondent’s view, the finding was only prima facie, the mandate to register an FIR on disclosure of a cognizable offence is statutory and admits of no preliminary inquiry, and a Special Judge is not disabled from giving effect to it. Which view prevails will affect how such applications are routed whenever a special court concludes that its own statute does not apply.
It bears emphasis that this is an interim order staying the FIR direction pending that argument, and decides nothing on the underlying facts. The petitioners’ account of a threatened false POCSO complaint and the second respondent’s grievance about the conduct of the police during the operation are competing, untested versions, and the Court has expressly refrained from any view on the merits; its requisitioning of the POCSO Court’s record and the police station records is directed at deciding the procedural question, not at pronouncing on what occurred. Whether an FIR is ultimately registered, and before which forum the Section 175(3) plea belongs, awaits the detailed hearing.
Case Title: Sub Inspector Jitender and Others v. State (NCT of Delhi) and Another [CRL.REV.P. 539/2026]; Inspector Sunil Kumar and Others v. State (NCT of Delhi) and Another [CRL.REV.P. 541/2026]
Bench: Justice Girish Kathpalia, High Court of Delhi at New Delhi
Date of Order: September 14, 2026 | Next Listed: December 18, 2026
Appearances: Senior Advocates Maninder Singh and Sanjeev Bhandari, with others, for the petitioners. Additional Public Prosecutor Amit Ahlawat for the State. Senior Advocate Avi Singh, with others, for the second respondent.
Status: Operation of the POCSO court’s FIR-direction order stayed; question of transmission under Section 175(3) BNSS reserved for detailed hearing. Allegations on both sides untested; no view expressed on the merits.