ABSTRACT

The criminal Justice system adopts new procedures with the changing needs of society. With the revision of the new criminal laws, the concept of preliminary enquiry before the registration of FIR came to be codified under section 173(3) of BNSS. As the provision departs from the earlier concept enunciated in Lalita Kumari, it was under constant scrutiny and critique by academicians and policy makers regarding its threat of misuse. The apex court cleared some of the cloud in Imran Pratapgadhi (2025). However, the conflict as to the true scope in various cases, like corruption, etc is still conflicting. The jurisprudence will be solidified in the upcoming years by the judiciary. The present paper analyses the present provision, the extent of departure, its application to distinct cases, and its exceptions. The paper concludes with the critique.

With the broader aim to reform the Criminal Justice System, the new Acts, Bhartiya Nyaya Sanhita (“BNS”), Bhartiya Nagarik Suraksha Sanhita (“BNSS”) and Bhartiya Sakshya Adhiniyam (“BSA”), were introduced to replace three existing criminal laws. Various new provisions were introduced, based either on novel ideas or to give statutory recognition to judicial precedents. One such concept is the preliminary enquiry, enunciated in Lalita Kumari v. State of UP (“Lalita Kumari”), and solidified in Section 173(3), BNSS.

Pre-enquiry to be conducted in appropriate cases to counter the malicious and arbitrary recording of First Information Report (“FIR”) is not entirely new to BNSS and is even encouraged by the judiciary. But here lies the issue, the Section 173(3) BNSS is loosely worded in such a way that enables the police officials to delay the filing even if a prima facie case is made out. Various reports have highlighted that excess power in the hands of the police is a threat to a just society. The unguided discretion leaves room for potential misuse of the provision by errant officials, even more so where the informant may be from marginalised or minority groups. It could be another tool in the hands of machinery to thwart the genuine attempts by individuals seeking to enforce their rights. The Union government has issued a Standard Operating Procedure (“SOP”) to regulate the preliminary enquiry. It is a question whether such wide powers can be restricted by such SOPs.

This newly introduced section, right from the beginning, became a part of the debate as to the extent of divergence from the judicial decision and the possible way to reconcile the mandate of FIR and preliminary inquiry altogether. However, the recent decision by the Apex Court in Imran Pratapgadhi v. State of Gujarat (“Imran Pratapgadhi”)has cleared the cloud over the extent of pre-enquiry under BNSS.

The Preliminary Enquiry And Registration Of Fir Vis-À-Vis Lalita Kumari V. State Of U.P.

The Criminal Procedure Code 1973 (“CrPC”) had no specific provision recognising the preliminary inquiry before the recording of an FIR. Section 154 dealt with the registration of an FIR on the intimation of a cognizable offence. Such information, if given orally, must be reduced in writing, read over and signed by the informant. The substance of information shall also be entered in a book kept by such officer in the prescribed form. By the wording of Section 154 CrPC and judicial interpretation, it is well established that it is mandatory to register the FIR, and whenever any information is received by an officer in charge of a police station about the commission of a cognizable offence, he is bound to register it. Genuineness, reliability and credibility of the information is no grounds to refuse to register the information.

 The bedrock of preliminary enquiry was laid down in the case of Lalita Kumari, when the question arose whether it is mandatory under Sec 154 to file an FIR or the police officer has the discretion to resort to some sort of pre-enquiry before filing of an FIR. The factual background of the case revolves around the callous attitude of police administration, where a writ petition was filed by the father of a minor child over the kidnapping of his daughter and the refusal of authorities to file an FIR.

Hence, the inconsistency in the judicial decisions on the question of mandatory registration and the need of pre-registration inquiry led to the case of Lalita Kumari being referred to the higher bench for clarification over the interpretation of Section 154, which also led to the introduction of the concept of preliminary enquiry to the Indian criminal jurisprudence.

P Sathasivam speaking for 5 five-judges bench, reiterated that police is mandated to register a FIR if the intimation discloses cognizable offences. However, it granted a limited scope of pre-enquiry in cases where information doesn’t disclose if the offence is cognizable. The inquiry was only to ascertain whether the offence is cognizable and not to verify the prima facie case. Some specific offences where a preliminary inquiry may be made were matrimonial, commercial, medical negligence, corruption and cases involving delay in registration of FIR without satisfactory reason. This led to a limited scope of preliminary inquiry before filing the FIR. This concept of preliminary inquiry has been incorporated under Sec 173(3), BNSS with significant departure.

Preliminary Enquiry Under BNSS:

Section 173, BNSS deals with the registration of an FIR. This section is pari materia of Sec 154 CrPC, along with some newly incorporated provisions like zero FIR, E-FIR, and preliminary inquiry in certain offences.

Section 173(3), a newly incorporated section in BNSS, deals with preliminary enquiry, enables the police officer in-charge of the station to conduct a preliminary inquiry, with the prior permission of an officer not below the rank of DSP in the offences punishable with imprisonment of three years to seven years to ascertain whether the prima facie case exists or not within the time frame of 14 days. If the prima facie case exists, the officer shall file the FIR and proceed with the investigation.

The Ministry of Home Affairs further launched an SOP to provide the guidelines for conducting preliminary inquiries, and this aims to ensure that investigations are initiated with diligence, transparency, and respect for the rights of all parties involved.

The term “preliminary inquiry” is not defined anywhere in BNSS. However, the SOP contains definition, procedure and responsibility of officers involved. It is defined as an “initial investigation to ascertain whether there exists prima facie case for offences punishable for three years or more but less than seven years of imprisonment for proceeding with a full investigation”.

PROCEDURE: The procedure involves three stages: approval of the enquiry, conducting the enquiry and decision post-enquiry.

Firstly, the process is initiated by evaluating the nature and gravity of offences and the prior approval from the officer not below the rank of DSP. Then, the pre-enquiry must be conducted within 14 days to ascertain if prima facie case exists. The officer in charge shall document all findings and evidence gathered during the enquiry. Finally, if the prima facie case exists, the officer can proceed with the full investigation immediately. In case no prima facie case is found, he shall document the findings and close the enquiry with a report to the approval authority. Further, he must communicate the findings of the enquiry to the complainant. The SOP provides that the DSP shall grant permission in writing within 24 hours of the request of the SHO. If no intimation is given in this timeframe, the SHO will proceed to register FIR. Further, SHO can initiate a disciplinary enquiry if the preliminary inquiry is not completed within 14 days and no satisfactory reason is provided.

Departure And Reconciliation:

Section 173(3) of the BNSS makes a significant departure from Section 154 of the CrPC. The recent Judgement in the case of Imran Pratapgadhi has clarified the position and reconciliation, summarised as follows.^[i]

1. In CrPC, only a limited preliminary inquiry is permissible to ascertain whether the information received discloses a cognizable offence. It can be made only if the information does not disclose the commission of a cognizable offence but indicates the necessity for an inquiry.

But a bare reading of Sec 173 BNSS, it is very apparent in the category of cases covered by sub-Section (3), a police officer is empowered to make a preliminary inquiry even if the information received discloses commission of any cognizable offence, only to ascertain whether a prima facie case is made out.

• By the Lalita Kumari case, the preliminary enquiry is permissible in certain categories of offences like matrimonial disputes, commercial offences, and medical negligence, corruption and cases involving delay, etc. However, BNSS applies broadly to all relevant offences within the defined punishment range. The officer in charge may conduct a preliminary inquiry into all the cases punishable with 3-7 years of imprisonment based on the nature and gravity of the offences.
• The other departure is based on the time frame. Under the CrPC, the allowed time frame was 7 days. BNSS also introduces a specific fourteen-day period for completing enquiries. Furthermore, BNSS requires prior permission from an officer not below the rank of Deputy Superintendent of Police, ensuring greater oversight and accountability, which was not stipulated by the Lalita Kumari judgment.

Scope Of Preliminary Enquiry Under Bnss:

In the recent case ofImran Pratapgadhi, ABHAY S. OKA, J., speaking for two judges bench clarified the scope of preliminary inquiry under BNSS. The court reiterated the mandate of registration of FIR under Sec 173(1) if the intimation discloses the cognizable offences but subject to the applicability of sub-Section (3) of Section 173. Hence, other than the cases falling under the scope of sec 173(3), it is mandatory to record the information.

“Sub-Section (3) of Section 173 of the BNSS is an exception to sub-Section (1) of Section 173. That is very apparent as sub-Section (3) of Section 173 refers explicitly to receiving information relating to the commission of a cognizable offence. Therefore, in a case where sub-Section (3) of Section 173 is applicable, even if the information pertaining to the commission of any cognizable offence is received, an inquiry can be conducted to ascertain whether a prima facie case exists for proceeding in the matter.”

Under Section 173(3) BNSS, if the officer decides to pre-enquire the matter and concludes the presence of prima facie case, he must immediately proceed to register and investigate the case. In case, he finds no satisfactory case to proceed, he should intimate the same to the informant at the earliest to enable him to avail alternative remedies under Section 173(4).

In sum up, if the offence appears cognizable, other than the cases under Section 173(3), the police officer is bound to register the FIR.

In the case of Pradeep Nirankarnath Sharma v. State of Gujarat & Ors., Vikram Nath, J speaking for two judge bench held that preliminary enquiry cannot be claimed as a matter of right. It is the discretion of the officer to conduct the same. The case involved the writ petition filed by a retired IAS officer to direct the authorities to conduct a preliminary inquiry before registering further FIR, placing reliance on Lalita Kumari case. The apex court upheld the HC’s order refusing to grant the mandate to police officers to conduct a preliminary inquiry. Reiterating Lalita Kumari, the scope of preliminary inquiry is limited only where information does not disclose the cognizable offences. If allegations disclose cognizable offences, no legal requirement for a preliminary inquiry. Further, it refused to issue directions to restrain the registration of FIR or mandating a preliminary inquiry, upholding the same as judicial overreach. Observed that “the court cannot rewrite statutory provisions or introduce additional safeguards that are not contemplated by law.”

Abhishek Pandey v. State of Madhya Pradesh, The M.P. High Court held that the police are within their power to register an FIR when the information discloses a cognizable offence without the need for a preliminary inquiry. The Court dismissed the petitioner’s request to quash the FIRs based on the lack of a preliminary inquiry.

Then, Sanjiv Rajendra Bhatt v. Union of India clarified  that the accused has no right to dictate the manner of investigation or mode of prosecution, and E. Sivakumar v. Union of India further upheld that the accused is not entitled to an opportunity of hearing as a matter of course in a writ petition seeking impartial investigation, and the “suspect/accused has no right of pre-audience before registration of FIR.” The Court emphasized that allowing such a right would hinder prompt action and the effective functioning of the investigation process.

OFFENCES INVOLVING FREEDOM OF SPEECH AND EXPRESSION: Imran Pratapgadhi clearly delineated the obligations on the officers to consider the meaning attached to the alleged words to ascertain if a cognizable offence is made out to safeguard the rights under Art 19(1)(a). It held that in cases where the allegations affect freedom of speech and expression itself and if covered within Sec 173(3), “it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the accused.” Further, it mandated that the higher police officer to grant permission in such cases. If the requirement of pre-inquiry is not exercised, FIR may be registered against a person lawfully exercising his right under Article 19(1)(a), even within the reasonableness of Article 19(2).  Consequently, It will frustrate the object of Sec 173(3) BNSS.^[ii]

CORRUPTION CASES:InCharan Singh v. State of Maharashtra, Supreme Court held that “An enquiry at pre-FIR stage is not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income.” If the pre-enquiry is satisfied based on sufficient materials that the complaint is vexatious, the FIR must not be recorded. If the inquiry discloses the requisites of the offence, the FIR is to be recorded and investigated as per procedure.

Central Bureau of Investigation v. Thommandru Hannah Vijayalakshmi, the 3-judges bench held that “a Preliminary Enquiry is not mandatory in all cases which involve allegations of corruption”. The Court stressed that where information flows from machinery like CBI or a “source information”, police may directly register the case and proceed to investigate if satisfied that the information discloses a cognizable offence.

SECTION 199(c) of BNS: As per the SOP published by the Ministry of Home Affairs, the option for a preliminary enquiry is not available for these offences mentioned in Sec 199(c). It is a penal provision against officers who refuse to register a case in ‘Offences relating to Women’.

OFFENCES AGAINST SC/ST: In cases where the Offence under “The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989”isalleged, Sec 18A specifically states that no preliminary enquiry is required to be made, and the officer must immediately register the FIR. In the case of Union of India v. State of Maharashtra, the Court, while reversing the direction of Subhash Kashinath Mahajan v. State of Maharashtra, observed that “a preliminary enquiry to be conducted by the DSP concerned to find out whether the allegations make out a case under the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and that the allegations are not frivolous or motivated”, and held that such a direction is impermissible. The direction could impede the enforcement of the act enacted to protect the Scheduled Cases and Scheduled Tribes.

Critique And Conclusion

For the purpose of Section 173 of the BNSS, there is no clarity on the grounds of the distinction of offences punishable up to 3-7 yrs and other offences. The incorporation of pre-enquiry under BNSS, even if intended to check the frivolous complaints, has granted wide discretion to the police officers to decide whether the FIR should be registered immediately or not. Other than Sec 173(3), no clear direction is given as to the standard of “prima facie” case after the intimation of offence as cognizable or how the power is to be properly exercised. It may affect legitimate complaints being dismissed, delayed and denying justice to victims. Moreover, the question of the ambiguous application of the preliminary enquiry over different offences is not settled. Further, the code is silent on various contingencies like refusal of permission of a superior officer, or if the pre-inquiry is not completed within the time limit, or conduct of officers deliberately refusing to record immediately. The Ministry of Home Affairs, perhaps anticipating the whimsical effect of this incorporation, published the Standard Operating Procedure (SOP) guiding the conduct of pre-enquiry. It provides timelines for granting or refusing permission by superior officers, and alternate actions if the enquiry is not completed within a strict timeframe. It also provides for departmental action. However, the enforceability and binding value of the SOP raises legal questions as its authority is neither derived from the Sanhita nor any other legislative enactments. Hence, the document is nothing more than an administrative statement. making it unenforceable in the court of law. Undoubtedly, if the provision is used in a just manner within the scope of the Sanhita and the terms of the SOP, it will discourage false cases at the threshold, enabling the state machinery to be utilised for better causes. Due to innumerable instances causing continuing mistrust of the police machinery, the obligation is on the state to ensure that justice reaches its intended end.

[i] Imran Pratapgadhi v. State of Gujarat, (2025 INSC 410), ¶ 22, 23.

[ii] Imran Pratapgadhi v. State of Gujarat (2025 INSC 410),¶ 29.