Kajal v. State of U.P.: the investigating officer's discretion under Section 183 BNSS

The Lucknow Bench of the Allahabad High Court — Justice Saurabh Lavania — was hearing an application under §Section 528 BNSS (the inherent-powers successor to Section 482 CrPC). The applicants, Kajal and Another, sought a direction from the High Court to the investigating officer to record the statement of applicant no. 1 (the prosecutrix) under §Section 183 BNSS and to have her medically examined. The grievance was that the prosecutrix was not being cooperated with during the investigation.

The Court's disposition addresses one of the more frequently-arising questions in early BNSS criminal-investigation practice: when can a party compel the investigating officer to take a specific investigative step? The answer the Court gave — that the investigating officer's discretion is not displaced by an external direction — preserves a long-standing position under the CrPC and carries it forward into the BNSS framework.

The provision: Section 183 BNSS

For the reader unfamiliar with the provision, a brief orientation. Section 183 BNSS is the successor to §Section 164 CrPC. Both provisions deal with the recording of statements at the investigation stage — particularly statements that are intended to have a stronger evidentiary status than the routine investigator-recorded statements that fall under Section 161 CrPC / Section 180 BNSS.

The Section 183 BNSS statement is recorded by a Magistrate. It carries the procedural safeguards of judicial recording: the statement is recorded with the witness understanding that it is being recorded by the Magistrate; the witness signs the statement; the Magistrate certifies the recording. The substantive utility — particularly in cases involving prosecutrix testimony, hostile-witness risk, or other circumstances where the statement's authenticity at trial may be contested — is that the recorded statement provides a more robust evidentiary basis than a Section 180 BNSS investigator-recorded statement.

The procedural trigger is what the Kajal judgment addresses. Who decides which witnesses are sponsored for Section 183 recording? The framework's answer — under both the CrPC and the BNSS — is that the decision rests with the investigating agency.

The holding

The reasoning

The Court's reasoning has three connected threads.

The structural reading of Section 183 BNSS

The first thread is the textual and structural reading of the section. Section 183 confers a power — to record a statement — on the Magistrate. It does not confer a corresponding right on a party to demand that the power be exercised in respect of any particular witness. The procedural architecture flows through the investigating agency: the IO selects the witnesses whose statements are to be recorded, the IO sponsors them before the Magistrate, and the Magistrate records the statement.

This architecture mirrors the position under Section 164 CrPC, on which a substantial body of case law had developed. The general rule under the CrPC was that the IO's discretion to sponsor witnesses was not displaced by external direction — whether from the party, from the court at the investigation stage, or from any other source. The BNSS, in re-housing the provision in Section 183, preserves the architecture.

The investigation-discretion principle

The second thread is the broader doctrine of investigative discretion. Indian criminal procedure has, for a long time, recognised that the investigating agency has discretion to decide how to investigate — which witnesses to examine, in what order, by what means. Courts, at the investigation stage, are generally cautious about substituting their judgment for the agency's on operational questions.

This deference has its limits. Courts will intervene where the investigation is being conducted mala fide, where it is being deliberately stalled, where it is producing constitutional violations, or where it is being directed in a manner that excludes legitimate lines of inquiry. But on the threshold question — whether to record a particular witness's statement under Section 183 — the discretion remains with the IO.

The Kajal disposition is the most recent BNSS-era articulation of this principle. The IO's discretion under Section 183 is intact; the Court will not direct the discretion to be exercised in a particular way.

The procedural alternatives

The third thread addresses what the party can do where the IO does not sponsor the witness. The Court's disposition is not unsympathetic to the underlying concern. It records the complaint — that the prosecutrix was not being cooperated with — and provides procedural directions:

• The applicant (the prosecutrix) is directed to appear before the IO.
• The IO is directed to have her medically examined.
• The IO is directed to produce her before the Magistrate for recording of her statement under Section 183 BNSS.
• The IO is directed to maintain the dignity of the applicant during the medical examination and the recording of the statement.
• The applicant is to be given fair treatment.

The directions, in form, are addressed to the IO — they require the IO to take specific steps within the investigation. In substance, they accomplish what the applicants had sought (the medical examination and the Section 183 recording) — but they do so through a route consistent with the IO's discretion, not in displacement of it. The Court does not direct that the statement be recorded; it directs that the IO produce the witness before the Magistrate, leaving the actual recording to the Section 183 framework.

The decision whether to sponsor a witness for a Section 183 BNSS statement rests with the investigating agency. The investigating officer cannot be compelled to record any particular witness's statement.

What the disposition tells the bar

For practitioners on either side of an early BNSS-era criminal investigation, the Kajal disposition supplies operational guidance.

For the complainant / victim

Where the complainant or victim believes a particular witness's statement should be recorded under Section 183, the appropriate channel is the IO — not the court. The strategy involves:

• A documented request to the IO, articulating the reason the Section 183 recording is sought.
• Where the IO does not act, escalation to senior officers of the police agency.
• Where the inaction is alleged to be mala fide or to be producing a constitutional concern, an application to the court — but framed not as a direction to record the statement but as a more general grievance about the conduct of the investigation.
• Recognition that the Court's intervention, where it comes, is likely to be in the form of procedural directions to the IO rather than a direct order to record the statement.

For the accused

The same doctrinal architecture is available to the accused in reverse. Where the IO is alleged to be directed by external pressure to record statements that are not warranted, the discretion-of-the-IO principle is a defensive doctrinal position. The accused's challenge would, similarly, engage the structural reading of the section rather than its substantive content.

For the investigating officer

The disposition supplies the doctrinal authority for the IO's position on discretion. Where parties (typically the complainant) press for specific investigative steps, the IO can rely on the Kajal line in declining to act in a manner inconsistent with the operational judgment of the investigation. The principle is not unbounded — bad-faith refusal to investigate would be exposed — but where the IO's decision reflects a considered judgment about investigative priorities, the doctrine supports it.

For the trial court

The court's role at the investigation stage is supervisory, not directive. The court should be cautious about issuing specific directions that substitute the court's judgment for the IO's on operational questions. The Kajal model — procedural directions framed in terms of producing the witness rather than recording the statement — illustrates the appropriate posture.

A note on Section 528 BNSS

The application in Kajal was filed under Section 528 BNSS — the inherent-powers provision, successor to Section 482 CrPC. The disposition implicitly addresses the scope of Section 528 in the investigation-stage context.

Section 528 powers are extraordinary and are to be exercised sparingly. Where the matter engages the substantive criminal-justice framework — questions of liberty, fundamental rights, gross procedural impropriety — Section 528 is available. Where the application is essentially a request for the court to direct the investigating agency to take a specific investigative step, Section 528 is exposed to the doctrinal concern that the High Court's powers are being deployed for operational direction.

The Kajal disposition does not foreclose Section 528 applications in investigation-stage matters — but it indicates that the directions the High Court will issue, even on a Section 528 application, will respect the IO's investigative discretion. The form of the directions in Kajal (procedural, not directive) reflects this.

What survives from the CrPC framework

The doctrinal architecture Kajal applies — that the investigating officer's discretion to sponsor witnesses under Section 164 CrPC (now Section 183 BNSS) is not displaced by external direction — has substantial CrPC-era precedent. Practitioners citing the CrPC line should be aware that the substantive doctrine carries over without modification to the BNSS framework. The provision number has changed; the operating rule has not.

The principal CrPC-era authorities — including the lines of cases on the investigating officer's discretion under Sections 161 and 164, the cases on Section 482 CrPC directions to the investigating agency, and the more general cases on the boundary between judicial direction and investigative autonomy — continue to be persuasive under the BNSS.

What the judgment did not address

It is worth flagging the boundaries:

• The judgment does not address the position where the IO's refusal to record a statement is alleged to be in bad faith or to be producing a substantive constitutional violation. These are circumstances in which the doctrinal architecture would yield to a different analytical posture.
• The judgment does not engage the substantive evidentiary question of what weight a Section 183 BNSS statement carries at trial — a separate question that is addressed by the law of evidence and the framework of testimony under the BSA.
• The judgment does not address the procedural framework for re-recording of Section 183 statements where the original statement's integrity has been compromised — a related question that the Allahabad High Court has separately addressed in Kirti Verma v. State of U.P. (2026 AHC 43696 DB) (re-recording permitted in exceptional circumstances).

The bottom line

Kajal v. State of U.P. is a small but doctrinally clean disposition on a recurring procedural question. The investigating officer's discretion to sponsor witnesses for recording under Section 183 BNSS is preserved against external direction. Parties seeking the recording must work through the investigative channel, not the court. The framework — preserved from the CrPC and carried into the BNSS — is the working architecture for the relationship between investigation and judicial supervision at the pre-trial stage. For practitioners navigating early BNSS-era investigations, the Kajal doctrine is the doctrinal anchor.

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Verify against the reported order. The Allahabad High Court's parallel line on re-recording of Section 183 statements (Kirti Verma) supplies complementary doctrinal architecture for the section.