Preliminary Enquiry Under Section 173(3) Of The BNSS -- The Supreme Court Solves The Riddle

Section 173(3) is a newly introduced provision in the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'the BNSS'). This provision has given statutory recognition to the procedure of conducting preliminary enquiry by a police officer. However, the debate has been going on in the legal circles as to how this provision could be reconciled with the judgment of the Constitution Bench of the Supreme Court in Lalita Kumari,¹ and whether the preliminary enquiry envisaged under the new provision in the BNSS has to be conducted before or after the registration of FIR. Now, in the case of Imran Pratapgadhi,² the Supreme Court has given answers to these intriguing questions.

The provision

Section 173(3) of the BNSS states that, without prejudice to the provisions contained in Section 175, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,— (i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or (ii) proceed with investigation when there exists a prima facie case.

Section 173(3) of the BNSS enables the officer in charge of the police station, of course, with the prior permission from an officer not below the rank of Dy.S.P, to conduct preliminary enquiry. He can conduct such an enquiry on receipt of information relating to the commission of any cognizable offence, which is made punishable (with imprisonment) for three years or more but less than seven years. The purpose of conducting such preliminary enquiry is to ascertain whether there exists a prima facie case.

Section 173(3) is incompatible with Section 173(1) of the BNSS?

A literal interpretation of the provision contained in Section 173(3) of the BNSS would lead to legal complications as it would then mean that the provision is incompatible with the provision contained in Section 173(1) of the BNSS and also contrary to the interpretation of Section 154(1) of the Code of Criminal Procedure (for short 'the Code') made by the Supreme Court in the case of Lalita Kumari.

How or why a literal interpretation of Section 173(3) would make it contrary to or incompatible with Section 173(1) of the BNSS? As per Section 173(1) of the BNSS, on receipt of information relating to the commission of a cognizable offence, it is mandatory for the officer in charge of the police station to register the FIR. On the other hand, Section 173(3) of the BNSS states that, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in charge of the police station may conduct a preliminary enquiry. To that extent, it appears that, Section 173(3) of the BNSS, as such, is incompatible with Section 173(1) of the BNSS.

Further, as per the dictum laid down by the Apex Court in the case of Lalita Kumari, a preliminary inquiry is permissible if the information received does not disclose a cognizable offence and such enquiry could be conducted only to ascertain whether a cognizable offence is disclosed and not to ascertain the veracity or otherwise of the information received. However, Section 173(3) of the BNSS contemplates a situation where the officer in charge of the police station has received information and such information has disclosed not merely any cognizable offence but a cognizable offence which is made punishable (with imprisonment) for three years or more but less than seven years. In such a case, the officer in charge of the police station may conduct a preliminary enquiry to ascertain whether a prima facie case is made out.

The case of 'Imran Pratapgadhi'

The Supreme Court, in the case of Imran Pratapgadhi, has found a solution to the above legal complications arising out the provision contained in Section 173(3) of the BNSS. The facts of this case are not relevant here. In essence, the Apex Court has held that, sub-section (3) of Section 173 of the BNSS is an exception to sub-section (1) of Section 173 and in the category of cases covered by sub-section (3), a police officer is empowered to make a preliminary inquiry to ascertain whether a prima facie case is made out for proceeding in the matter even if the information received discloses commission of any cognizable offence.

Thus, by holding that, sub-section (3) of Section 173 of the BNSS is an exception to sub-section (1) of Section 173, the Supreme Court has solved the apparent conflict between the provisions contained in Section 173(1) and Section 173(3) of the BNSS.

Further, the Apex Court has recognised the fact that the provision contained in Section 173(3) of the BNSS makes a departure from the dictum laid down in the case of Lalita Kumari. The Supreme Court has explained this position in the following manner:

“Section 154 of the Cr.P.C does not provide for making any preliminary inquiry. However, as held in the case of Lalita Kumari, a preliminary inquiry is permissible if the information received does not disclose a cognizable offence and indicates the necessity for an inquiry. A preliminary inquiry must be conducted only to ascertain whether a cognizable offence is disclosed. However, sub-section (3) of Section 173 of the BNSS makes a significant departure from Section 154 of the Cr.P.C. It provides that when information relating to the commission of a cognizable offence which is made punishable for 3 years or more but less than 7 years is received by an officer-in-charge of a police station, with the prior permission of a superior officer as mentioned therein, the police officer is empowered to conduct a preliminary inquiry to ascertain whether there exists a prima facie case for proceeding in the matter. However, under Section 154 of the Cr.P.C, as held in the case of Lalita Kumari, only a limited preliminary inquiry is permissible to ascertain whether the information received discloses a cognizable offence. Moreover, a preliminary inquiry can be made under the Cr.P.C only if the information does not disclose the commission of a cognizable offence but indicates the necessity for an inquiry. Sub-section (3) of Section 173 of the BNSS is an exception to sub-section (1) of Section 173. In the category of cases covered by sub-section (3), a police officer is empowered to make a preliminary inquiry to ascertain whether a prima facie case is made out for proceeding in the matter even if the information received discloses commission of any cognizable offence. 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. The intention appears to be to prevent the registration of FIRs in frivolous cases where punishment is up to 7 years, even if the information discloses the commission of the cognizable offence. However, under Section 154 of the Cr.P.C, the inquiry permitted by paragraph 120.2 of the decision in the case of Lalita Kumari is limited only to ascertain whether the cognizable offence is disclosed”.

Preliminary enquiry is before registration of FIR

The preliminary enquiry, which may be conducted under Section 173(3) of the BNSS, is before registration of the FIR. This is made clear by the Supreme Court, by holding as follows:

“Under sub-section (3) of Section 173 of the BNSS, after holding a preliminary inquiry, if the officer comes to a conclusion that a prima facie case exists to proceed, he should immediately register an FIR and proceed to investigate. But, if he is of the view that a prima facie case is not made out to proceed, he should immediately inform the first informant/complainant so that he can avail a remedy under sub-Section (4) of Section 173”.

Is preliminary enquiry mandatory in any case?

The Supreme Court has noticed that, as per clause (a) of Article 51-A of the Constitution, it shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions and held that the police officers are also bound by this provision in the Constitution. The Apex Court further noticed that, Article 19(1)(a) of the Constitution confers a fundamental right on all citizens to freedom of speech and expression and clause (2) of Article 19 of the Constitution carves out an exception to the fundamental right guaranteed under sub-clause (a) of clause (1) of Article 19. If there is a law covered by clause (2), its operation remains unaffected by sub-clause (a) of clause (1). Article 19(2) is an exception to the freedom enumerated under Article 19(1)(a) of the Constitution. But, Article 19(2) cannot be allowed to overshadow the substantive rights under Article 19(1) of the Constitution, including the right to freedom of speech and expression. Therefore, the Supreme Court has held that, “when an allegation is of the commission of an offence covered by the law referred to in clause (2) of Article 19, if sub-section (3) of Section 173 is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the accused”. This will ensure that the fundamental rights guaranteed under sub-clause (a) of clause (1) of Article 19 remain protected. Therefore, the Supreme Court has also held that, in such cases, the higher police officer referred to in sub-section (3) of Section 173 of the BNSS must normally grant permission to the police officer to conduct a preliminary inquiry. Therefore, when the commission of cognizable offences is alleged, where punishment is for imprisonment up to 7 years, which is based on spoken or written words, it will always be appropriate to exercise the option under sub-Section (3) of Section 173 and conduct a preliminary inquiry to ascertain whether there exists a prima facie case to proceed. If the option under sub-section (3) is not exercised by the police officer in such a case, he may end up registering an FIR against a person who has exercised his fundamental right under Article 19 (1)(a) even though clause (2) of Article 19 of the Constitution is not attracted. If, in such cases, the option under sub-section (3) of Section 173 of the BNSS is not exercised, it will defeat the very object of incorporating that provision and will also defeat the obligation of the police under Article 51-A(a) of the Constitution. Even while dealing with the performance of an obligation under sub-section (1) of Section 173 of the BNSS, where the commission of the offence is based on spoken or written words, the police officer concerned will have to keep in mind the fundamental rights guaranteed under Article 19(1)(a) read with the exception carved out under clause (2) of Article 19 of the Constitution.

Conclusion

In the case of Imran Pratapgadhi, the Supreme Court has solved the riddle by holding that, sub-section (3) of Section 173 is an exception to sub-section (1) of Section 173 of the BNSS. The object of incorporating Section 173(3) of the BNSS is to prevent investigation of false and frivolous cases. The purposive and harmonious interpretation given by the Supreme Court to the provision contained in Section 173(3) of the BNSS, treating it as an exception to Section 173(1) of the BNSS, would go a long way in effectively implementing and using that provision in a practicable and feasible manner so as to achieve its object and purpose.

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1. Lalita Kumari v. Govt. of U.P: AIR 2014 SC 187.
2. Imran Pratapgadhi v. State of Gujarat: 2025 LiveLaw (SC) 362: 2025 INSC 410.

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Author is Former Judge, High Court of Kerala. Views Are Personal.