CRL OP(MD)/20691/2026 of G.Mathina Fancy Fathima Vs The State of Tamilnadu on 3 November 2026

ORDER

The petitioner, who is the de facto complainant and the mother of the two child victims in Crime No.36 of 2026 on the file of the fourth respondent, has approached this Court seeking transfer of the investigation to an independent and competent agency, with a further direction to that agency to investigate in accordance with the POCSO Act and the BNSS, 2023, with due regard to the protection, dignity and welfare of the minor victims, and to lay a final report before the competent Court. Factual Matrix:-

2. The case of the petitioner, in brief, is that her two minor daughters are studying in Standards V and VII in a private aided school. According to her, the accused, who is a Mathematics teacher in that school, sexually harassed both the children inside the classroom. The matter came to light through the Child Helpline (1098), and a complaint was lodged by the field workers of the Child Helpline. Based on that complaint, the fourth respondent registered the First Information Report in Crime No.36 of 2026 on 09.07.2026 for offences under Sections 11(1) and 12 of the POCSO Act. The grievance of the petitioner is that the investigation has neither been fair nor prompt nor effective.

3. In the petition as well as in her reply affidavit, the petitioner has levelled the following allegations:

(a) Though the matter was reported to the Child Helpline as early as 29.06.2026, the FIR came to be registered only after she submitted a representation through the District Collector on 07.07.2026; (b)On 02.07.2026 and once again on 12.07.2026, a police officer in uniform questioned the children at the school in the presence of other students, cautioned them not to tarnish the reputation of the teacher, and made them write statements favourable to him as dictated. This, according to her, is in violation of Section 24 of the POCSO Act;

(c) The statements of the Headmaster and the students were recorded under Section 183 of the BNSS on 01.08.2026, whereas the statements of the victims were recorded only on 07.09.2026, and that too only after she moved this Court, in breach of Sections 25 and 26 of the POCSO Act; (d)The Investigating Officer summoned her to the police station under the guise of counselling, made derogatory remarks about her character, informed her that the accused was close to the correspondent of the school, and intimidated her; (e)Crime No.40 of 2026 under Sections 296(b) and 351(2) of the BNS was registered against her on 25.07.2026, sixteen days after the POCSO case, at the instance of the accused, only to silence her. She came to know of it only when her earlier petition in Crl.O.P.(MD) No.18806 of 2026 was taken up for hearing on 31.07.2026; (f)Just before the hearing on 28.09.2026, the case was closed as "mistake of fact" with a view to shield the accused, and no RCS notice was served upon her; and (g)The accused has been working in the school for nearly thirty years and wields political and financial influence. Villagers have informed her of similar conduct on his part in the past.

4. The learned counsel for the petitioner submitted that a fair investigation is an integral facet of the right guaranteed under Article 21 of the Constitution of India and, on that footing, urged that the investigation be transferred to an independent agency.

5. On behalf of the fourth respondent, a counter affidavit has been filed, wherein the following stand is taken:

(a) On receipt of the complaint on 02.07.2026, CSR No.234 of 2026 was issued. After the petitioner and the children appeared before the Child Helpline on 03.07.2026, the FIR was registered on 09.07.2026;

(b) Witnesses were examined, an observation mahazar was prepared, and the statements of the Headmaster and the students were recorded before the learned Judicial Magistrate, Thisayanvilai, under Section 183 of the BNSS on 01.08.2026 in Crl.M.P.No.246 of 2026. None of the students supported the allegations;

(c) Apart from the petitioner's children, no other student has made any complaint against the accused. The accused has, however, been placed under suspension pursuant to a departmental enquiry; (d)The investigation revealed a prior dispute relating to money collected by the accused for the construction of a church. On a separate complaint, Crime No.40 of 2026 was registered against the petitioner and another person; (e)The investigation further disclosed that one of the children was not on the rolls of the school at the time of the alleged occurrence; and

(f) After examining as many as 32 witnesses, the case was closed as "mistake of fact" and RCS notice was served on the petitioner.

6. Per contra, the learned Government Advocate (Crl. Side) submitted that the investigation stands completed and the final report has already been filed, and therefore nothing survives in the present petition. According to him, the remedy of the petitioner lies in contesting the final report before the Special Court. He further contended that a complainant has no right to choose the agency that should investigate the case, and accordingly prayed for dismissal of the petition.

Discussion:-

7. It is not in dispute that the fourth respondent has closed the case as "mistake of fact" and has filed the final report before the jurisdictional Court. In fact, the petitioner herself, in paragraphs 17, 22 and 23 of her reply affidavit, has admitted that the complaint has been closed. In such circumstances, the prayer for transfer of investigation has become infructuous. Once a final report is laid before the Court under Section 193 of the BNSS, the matter passes into the domain of the Court, and the next step is for the Court to take and not for the police.

8. When a closure report is filed, the Court is bound to issue notice to the informant and hear him or her before accepting the report, as contemplated under Section 193(3)(iii) of the BNSS, 2023. The victim, who is represented in this case by her mother, is equally entitled to be heard and to file a protest petition. Upon such a protest petition being filed, the Special Court may adopt any one of the following courses:

(a) decline to accept the final report and take cognizance on the basis of the materials available on record; (b)treat the protest petition as a private complaint and proceed further in accordance with law; or

(c) direct further investigation under Section 193(9) of the BNSS.

9. A person who is aggrieved by the manner in which an investigation is conducted must, in the first instance, approach the jurisdictional Magistrate, who is vested with ample power to ensure that a proper investigation is carried out. The Special Court will have before it the case diary, the statements of the victims and other witnesses recorded under Section 183 of the BNSS, and the final report. That Court is, therefore, far better placed than this Court, which exercises jurisdiction under Section 528 of the BNSS only on the basis of affidavits, to decide whether the investigation was fair and adequate.

10. In that view of the matter, this Court has refrained from examining the other allegations raised by the petitioner. It is open to the petitioner to raise all those contentions before the Special Court and pursue them there. It is made clear that nothing stated in this order shall be construed as an expression of opinion on the merits of the protest petition, if any.

11. In the light of the above discussion, this Court is not inclined to order transfer of the investigation, particularly when no exceptional circumstance warranting such transfer has been made out, and more so when the final report has already been filed.

Conclusion:-

12. Accordingly, the following directions are issued:

(a) The fourth respondent shall serve RCS notice on the petitioner in respect of the final report filed in Crime No.36 of 2026 within a period of two weeks from the date of receipt of a copy of this order, and shall file proof of such service before the Special Court; (b)The petitioner is at liberty to file a protest petition before the Special Court for POCSO cases, Tirunelveli, within a period of four weeks from the date of such service;

(c) If a protest petition is filed, the Special Court shall not accept the final report without hearing the petitioner, and shall consider the protest petition on its own merits and in accordance with law, uninfluenced by any of the observations made by this Court; and (d)The protest petition, if filed, shall be disposed of within a period of eight weeks thereafter.

13. With the above directions, this Criminal Original Petition stands disposed of. 03.11.2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No RJR

To

1. The Director General of Police, The Director General of Police Office, Dr.Radhakrishan Road, Kailasapuram, Mylapore, Chennai – 600 004.

2. The Inspector of Police CB-CID, OCU Police Station, Sankar Colony, Samadhanapuram, Palayamkottai, Tirunelveli.

3. The Superintendent of Police Officer, The Superintendent of Police Office, High Ground Road, Palayamkottai, Tirunelveli.

4. The Inspector of Police AWPS Nanguneri Police Station, Tirunelveli District.

5. The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai

R.VIJAYAKUMAR, J. RJR Pre-delivery order made in CRL OP(MD) No. 20691 of 2026 03.11.2026