Speaking-Order Requirement When Taking Cognizance on a Protest Complaint After a “Further Action Dropped” Refer Report under the SC/ST (PoA) Act

1. Introduction

Case: NISHA V. NAIR v. STATE OF KERALA (2026 KER 10639), Kerala High Court, decided on 04-02-2026 by Justice A. Badharudeen.

Parties: The appellant/accused (Nisha V. Nair) challenged an order of the Special Court (SC/ST (PoA) Act), Nedumangad. The third respondent (Sasidharan D.K.) was the de facto complainant.

Background: A private complaint dated 17.03.2022 was forwarded for police investigation, leading to registration of Crime No.251/2022. After investigation, the police filed a refer report in the nature of “Further Action Dropped” (FAD) on 30.06.2022 seeking to drop proceedings. The complainant then filed a protest complaint. Acting on it, the Special Court passed an order (Annexure A16 dated 18.11.2024) taking cognizance against the appellant for offences under Sections 3(1)(r) and 3(1)(s) of the SC/ST (PoA) Act and dismissing the complaint against A2.

Key issues: (i) Whether the Special Court can take cognizance through a cryptic order without reasons; (ii) whether the Special Court must explicitly deal with the police refer report/FAD (accept/reject/order further investigation) before proceeding on a protest complaint; (iii) procedural framework applicable after the enactment of the BNSS; and (iv) the (already-settled) constitutionality of Section 14A(3) of the SC/ST (PoA) Act.

2. Summary of the Judgment

  • The High Court allowed the appeal.
  • It set aside Annexure A16 as a blanket/cryptic, non-speaking order which did not disclose:
    • the materials relied upon to form a prima facie view for Sections 3(1)(r) and 3(1)(s), and
    • whether the police refer report (FAD) was accepted, rejected, or whether further investigation was ordered.
  • The matter was remanded to the Special Court to decide afresh and pass a speaking order following the procedure under the Cr.P.C. (since the proceeding was pending when BNSS came into force).
  • The Court noted that, following Noushad V.T.K. V. State of Kerala, Section 14A(3) of the SC/ST (PoA) Act (curtailing appeals beyond 180 days and excluding the Limitation Act) stands declared unconstitutional.

3. Analysis

3.1 Precedents Cited

(a) Noushad V.T.K. V. State of Kerala, 2023 (6) KHC 172

The High Court relied on Noushad V.T.K. V. State of Kerala to treat the challenge to the second proviso to Section 14A(3) as infructuous, because that decision had already held Section 14A(3) unconstitutional for violating Articles 14 and 21.

While not the central ground for remand, Noushad mattered procedurally: it removed any bar based on the 180-day cap, reinforcing that appellate scrutiny over defective Special Court orders cannot be stifled by an inflexible limitation regime.

(b) Re: Provision of S.14(a) of SC/ST(Prevention of Atrocities) Amendment Act, 2015 (2018 KHC 5250)

The judgment notes that Noushad drew from this Full Bench decision of the Allahabad High Court. Its role here is derivative: it supplies the constitutional reasoning (fairness/equality and access to remedy) that underpins the invalidation of Section 14A(3).

(c) Central Bureau of Investigation v. Ramesh Chander Diwan, 2025 KHC 6370

This precedent was used to resolve a transitional-law issue after the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The Kerala High Court extracted paragraph 30 and adopted its rule: once BNSS repeals Cr.P.C., pending proceedings continue under the repealed law due to the saving clause (Section 531 BNSS).

“In view of the provisions of S.531 of the BNSS, the Cr.PC stands repealed; yet, pending proceedings are to be continued under the repealed law.”

Applying this, the Court held that the Special Court must process the refer report/protest complaint situation in accordance with the Cr.P.C. framework.

3.2 Legal Reasoning

(i) Duty to judicially deal with a police refer report (FAD)

The Court reaffirmed a procedural obligation: when the Investigating Officer files a final report seeking to drop proceedings (a refer report/FAD), the court must apply its mind and take one of the legally permissible courses—accept it, reject it, or order further investigation—after notice to the complainant/aggrieved person.

Here, Annexure A16 did not reveal which course the Special Court adopted. That omission was treated as a material illegality because it obscures:

  • the procedural “gateway” by which the case moved from an investigation closure request to a prosecution posture, and
  • whether the court’s power was exercised in the correct sequence and on proper grounds.

(ii) Requirement of a “speaking order” for cognizance, especially under the SC/ST (PoA) Act

The impugned order merely said, in substance: “Heard, perused records and evidence; prima facie case made out under Sections 3(1)(r) and 3(1)(s).” The High Court held this to be insufficient because:

  • it does not indicate what materials (including the complainant’s protest complaint evidence) were relied upon;
  • it does not show application of mind to the statutory ingredients of Sections 3(1)(r) and 3(1)(s); and
  • it frustrates effective appellate review under Section 14A by leaving the reasons undisclosed.

The Court’s emphasis is heightened by the nature of the allegations—offences under the SC/ST (PoA) Act—where both victim-protection objectives and the serious consequences for an accused require careful, transparent judicial scrutiny at threshold stages.

(iii) Transitional procedure post-BNSS: Cr.P.C. continues for pending matters

Relying on Central Bureau of Investigation v. Ramesh Chander Diwan, the Court confirmed that because the proceeding was pending when BNSS came into force, the Special Court must follow Cr.P.C. procedure in reconsidering the matter on remand. This prevents procedural uncertainty and ensures consistent handling of “legacy” cases.

(iv) Section 14A(3) remains unconstitutional (as per binding Kerala precedent)

Although not determinative for the remand, the Court reiterated the current position in Kerala: Section 14A(3), insofar as it imposes a rigid 180-day appeal limit while excluding Limitation Act operation without a condonation mechanism, violates Articles 14 and 21 (following Noushad). The present appeal was thus not to be defeated on that basis.

3.3 Impact

(a) On Special Courts under the SC/ST (PoA) Act

  • Process discipline: Special Courts must explicitly address the police refer report (FAD) and record what is being done with it.
  • Reasoned cognizance: Orders taking cognizance—particularly after a refer report and on a protest complaint—must disclose reasons and the material considered.
  • Appellate sustainability: Cryptic orders are more likely to be set aside, increasing incentives for careful threshold adjudication.

(b) On complainants/de facto complainants

  • The decision does not weaken the protest complaint mechanism; rather, it ensures that when a complainant contests a closure report, the judicial acceptance of that contest is backed by reasons, improving legitimacy and transparency.

(c) On accused persons

  • The ruling strengthens procedural safeguards against prosecution being launched without demonstrable application of mind, especially where a prior investigative conclusion sought closure.

(d) On BNSS transition litigation

  • It reinforces that courts should apply Cr.P.C. to pending proceedings by virtue of the BNSS saving clause, limiting procedural disputes about which code governs older cases.

4. Complex Concepts Simplified

  • Cognizance: The court’s formal decision to take notice of alleged offences and proceed against an accused. It is not a finding of guilt; it is a threshold step.
  • Refer report / “Further Action Dropped” (FAD): A police final report stating that no further action/prosecution is recommended (often akin to a closure report).
  • Protest complaint: A complaint filed by the informant/complainant objecting to the police closure (FAD), requesting the court to proceed notwithstanding the police view.
  • Speaking order: An order that gives reasons—i.e., it shows what was considered, what was decided, and why. It enables accountability and appellate review.
  • Remand: Sending the matter back to the lower court to reconsider and decide again according to law, typically with directions (here, to follow Cr.P.C. and give reasons).
  • Sections 3(1)(r) and 3(1)(s) (SC/ST (PoA) Act): Provisions dealing with certain forms of caste-based insult/intimidation/humiliation; their precise application depends on statutory ingredients and factual context, which is why reasoned scrutiny at cognizance matters.
  • BNSS saving clause (Section 531): Even though BNSS repeals Cr.P.C., it preserves the continuation of pending proceedings under the old law to avoid disruption.

5. Conclusion

NISHA V. NAIR v. STATE OF KERALA (2026 KER 10639) crystallises an important procedural rule: when a police “Further Action Dropped” refer report is followed by a protest complaint, the Special Court must transparently and expressly deal with the refer report and must pass a reasoned, speaking order before taking cognizance—especially for serious offences under the SC/ST (PoA) Act. The judgment also aligns Kerala practice with the BNSS transition principle that pending cases proceed under Cr.P.C., and it reiterates the prevailing Kerala position that Section 14A(3)’s rigid appeal limitation is unconstitutional. Overall, the decision strengthens reasoned adjudication, procedural fairness, and appellate accountability in SC/ST (PoA) prosecutions initiated through protest complaints.