Rectifying the Aims and Objectives of Preliminary Enquiry under Section 173(3) BNSS

An analysis of Section 173(3) of the BNSS and the purpose of preliminary enquiry in cognizable offences, examining its distinction from the preliminary inquiry contemplated in Lalita Kumari and the need to align State Police SOPs with the legislative intent and recent Supreme Court rulings.

Introduction

The Nagarik Suraksha Sanhita, 2023 (BNSS) overhauls the entire procedure and methodology for the trial of offences enumerated under the Nyaya Sanhita, 2023 (BNS) and other special laws, wherever applicable. The drafters of the new criminal laws have made every endeavour to incorporate provisions to address the evolving nature of crimes and criminals. Initially, the new laws aim to fill gaps left by the earlier legal framework — the Penal Code, 1860 (IPC), the Criminal Procedure Code, 1973 (CrPC), and the Evidence Act, 1872 (IEA) —by introducing technology-based investigation methods, establishing deadlines for investigations and trials, and requiring forensic facilities for complex crimes. The new criminal laws have also incorporated various guidelines issued by the Supreme Court while interpreting the erstwhile criminal laws, i.e. the IPC, the CrPC and the IEA.

Among the various crucial additions, Section 173(3) BNSS merits special mention for its aim of curbing the registration of false and frivolous criminal cases. Section 173(3) lays down the procedure for preliminary enquiry (PE) in cases of cognizable offences punishable with imprisonment of three years or upward but less than seven years.

Preliminary enquiry under Section 173(3) BNSS

A preliminary enquiry under Section 173(3) aims to assess if there is a prima facie case. It states that when a police officer receives information or a complaint about a cognizable offence punishable by imprisonment of three years or more but less than seven years, they may, with prior approval from an officer not below the rank of Deputy Superintendent of Police, conduct a preliminary enquiry to determine if there is a prima facie case to proceed. This enquiry must be completed within 14 days, though the provision does not specify how to calculate this period. Similarly, it does not specify the deadline for the Deputy Superintendent of Police to give approval. To fill these gaps, many State Police have issued their Standard Operating Procedures (SOPs) to guide proper implementation of the new criminal laws.

“Preliminary inquiry” versus “preliminary enquiry”

The Supreme Court had laid down that in cases of cognizable offences; the registration of FIR is mandatory. In such cases, the police cannot refuse to register the FIR on the ground of lack of merit or authenticity of the complaint, and no preliminary inquiry can be conducted by the police before registering the FIR for such offences.¹

Prior to Lalita Kumari v. State of U.P.², there was considerable ambiguity about the necessity of registering an FIR under Section 154 CrPC (now Section 173 BNSS). Finally, the court resolved the issue by mandating the registration of an FIR in cognizable cases, interpreting the word “shall” in Section 154 CrPC. However, in the same matter, the Supreme Court carved out certain categories of offences in which the police could conduct a preliminary inquiry before registering an FIR to verify whether any cognizable offence had been committed.

The Supreme Court illustrated the following categories of cases suitable for preliminary inquiry: (a) matrimonial/family disputes; (b) offences relating to corruption; (c) offences relating to medical negligence; (d) commercial offences; (e) cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over three months’ delay in reporting the matter without satisfactorily explaining the reasons for the delay.³

Nonetheless, the list is indicative rather than exhaustive. Such preliminary inquiry was directed to be completed in seven days, which was later changed to 15 days by a subsequent order of the Supreme Court.⁴

The preliminary inquiry, as outlined in the judgment, is solely to determine whether a cognizable offence has occurred, not to verify the accuracy of the information or complaint. Therefore, if the information received suggests, at a first glance, the commission of a cognizable offence, an FIR must be filed for that offence. A preliminary inquiry is only justified when the initial information does not clearly indicate a cognizable offence but suggests that further verification is needed to establish whether such an offence exists.

With the overhaul of criminal laws, BNSS has introduced a new dimension to the procedure. Section 173(3) BNSS postulates “preliminary enquiry” in case of a cognizable offence, punishable with imprisonment of three years or upward but less than seven years. “Preliminary inquiry” as contemplated by the Supreme Court in Lalita Kumari⁵ and “preliminary enquiry”, as laid down in Section 173(3) BNSS, do not just vary in their orthography but also in their aim and spirit. While the objective of “preliminary inquiry” is to ascertain, before registration of an FIR, whether any cognizable offence has been committed or not, whereas “preliminary enquiry” is directed towards ascertainment of existence of prima facie case, in the event of information as to the commission of a cognizable offence, for proceeding in the matter by registering the FIR.

Section 173(3) has been enacted with a view to countersurge in the registration of false and motivated complaints which was documented after Lalita Kumari. The ruling opened the floodgates for frivolous criminal cases which took a toll on the criminal justice system of the country. In Azad Singh Kataria v. Union of India⁶, the Supreme Court observed orally that registering an FIR as a matter of course may lead to serious unintended consequences, such as reputational harm, social stigma, and the risk of the criminal process being misused to harass individuals. Thus, to check such situation Section 173(3) BNSS has been enacted to make sure that such false and frivolous cognizable cases can be filtered at the entry point of criminal justice system by conducting preliminary enquiry. Thus, implying that Section 173(3) BNSS partially overrules the directives given in Lalita Kumari by diluting the obligation to register FIR in case of cognizable offences punishable with imprisonment of three years or upward but less than seven years.

The observations of the Supreme Court are crucial in this regard:

28. Section 154 CrPC does not provide for making any preliminary inquiry. However, as held in 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 BNSS makes a significant departure from Section 154 CrPC. 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 CrPC, as held in 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 CrPC 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 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 CrPC, the inquiry permitted by para 120.2 of the decision in Lalita Kumari is limited only to ascertain whether the cognizable offence is disclosed.⁷

Discrepancy in SOPs

This nuanced difference between “preliminary inquiry” and “preliminary enquiry” seems to have been ignored by various State Police Forces while drafting their SOPs for the effective implementation of new criminal laws. Many State Police Forces are still treating the “preliminary enquiry” under Section 173(3) BNSS as equivalent to the “preliminary inquiry” laid down in Lalita Kumari.

This can be illustrated by the following extracts of SOPs released by various State Police:

1. Chhattisgarh Police⁸

Point 3 of SOP under the heading “Preliminary Enquiry” as issued by the Chhattisgarh Police mentions its aims as follows:

3. The preliminary inquiry shall be conducted solely to ascertain whether a cognizable offense has been committed or not, and if the commission of a cognizable offense is apparent, an FIR shall be registered immediately under the relevant sections of the law and the matter shall be investigated in accordance with the law. [Translated version]

2. Puducherry Police⁹

Similarly, the SOP issued by the Puducherry Police lays down the objective of “preliminary enquiry” as follows:

2. The scope of the preliminary enquiry is only to ascertain whether any cognizable offence is committed or otherwise and if cognizable offence appears to be committed, then immediately register the case FIR under the relevant sections of law and to investigate the case as per law.

Suggestions

The purpose of “preliminary enquiry” enumerated under Section 173(3) is to determine whether a prima facie case exists or not if information pertaining to a cognizable offence is reported, rather than to find if there is a cognizable case or not, which is mentioned in the SOPs. Therefore, it is suggested that the relevant SOPs be reframed to align them with legislative intent and recent Supreme Court rulings.