The Constitutional Lens On Preliminary Enquiry: Navigating Section 173(3) Of BNSS

Introduction:

The Supreme Court in Imran Pratapgadhi v. State of Gujarat[1] recently clarified whether a preliminary enquiry must be conducted before or after the registration of an FIR. Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), introduces a legal basis for police to conduct a preliminary enquiry before registering an FIR. This marks a departure from the CrPC’s Section 154, which mandates immediate FIR registration. The provision challenges prior judicial interpretation, especially the Supreme Court’s ruling in Lalita Kumari v. Government of UP[2], which limited preliminary enquiries.

Factual Matrix:

On 26 January 2025, as India celebrated the 75th anniversary of its Constitution—an enduring symbol of democratic values and fundamental rights—a controversy sparked national debate. The incident involved a Member of the Rajya Sabha who shared a video clip on the social media platform ‘X’. The video, taken during a wedding celebration hosted by the Sanjari Education and Charitable Trust in Jamnagar around 29 December 2024, featured a poem being recited in the background.

Soon after the video surfaced, allegations emerged claiming that the poem incited communal tensions. It was said to promote hostility between communities, hurting religious and social sentiments, and threatening the fabric of national unity. Responding to these accusations, the second respondent, acting as the complainant, filed a formal complaint that led to the registration of a First Information Report (FIR) at the Jamnagar Police Station. The FIR cited various provisions under the Bharatiya Nagarik Suraksha Sanhita (BNSS), including Sections 196, 197(1), 302, 299, 57, and 3(5).

The Member of Parliament who shared the video, now the appellant in the case, strongly disputes the FIR’s legitimacy. He argues that his act of posting a video containing a poem—particularly one recited during a public and celebratory occasion—falls squarely within his constitutionally protected right to freedom of speech and expression, enshrined in Article 19(1)(a). He further asserts that launching a criminal investigation without first conducting a preliminary enquiry is not only disproportionate but also a direct violation of this fundamental right.

Rationale Behind Section 173(3):

Historically, Indian law has required the police to register a First Information Report (FIR) right away when someone reports a cognizable offence. This rule comes from Section 173(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which closely mirrors Section 154 of the older Code of Criminal Procedure, 1973 (CrPC). The law makes it mandatory for police to act immediately if the reported information shows that a cognizable offence may have been committed—there’s no room for delay or discretion. But this immediate action has raised concerns, especially in cases where the alleged offence is based on something someone said, wrote, or expressed.

Jumping straight to criminal charges in such cases, without verifying the facts, could unfairly affect a person’s right to free speech under Article 19(1)(a) of the Indian Constitution. To tackle this issue, lawmakers introduced Section 173(3) in the BNSS. This new provision allows police to conduct a preliminary enquiry before registering an FIR, but only in specific types of cases namely, those involving cognizable offences that carry a sentence between three and seven years. Importantly, this step can only be taken with approval from a police officer of at least Deputy Superintendent rank. The goal is to first check whether there’s enough initial evidence to support the claim before going ahead with a full investigation. This marks a shift from the older legal approach.

Previously, there was no room for delay once a cognizable offence was reported. Now, with the option of a preliminary enquiry, FIR registration might be delayed in certain scenarios. That creates a potential conflict between Section 173(1), which demands immediate action, and Section 173(3), which allows for a pause. This tension is made even more complex by a major Supreme Court ruling in Lalita Kumari v. Government of Uttar Pradesh. In that case, the Court ruled that a preliminary enquiry is only justified when the information provided doesn’t clearly show a cognizable offence. Once it does, the FIR must be registered without delay. The inclusion of Section 173(3) in the BNSS—allowing enquiry even when a cognizable offence is apparent—challenges the existing legal principles and may require a fresh look at how these laws are interpreted.

Judgement:

The contentious issues surrounding Section 173(3) were substantially clarified in the recent decision in the Imran Pratapgadhi case. The Supreme Court recognized Section 173(3) as an exception to the otherwise mandatory procedure of FIR registration prescribed under Section 173(1) of the BNSS. The Court held that when the offence in question is punishable by imprisonment for three to seven years, particularly when the allegations involve speech, writing, or artistic expression, it is both appropriate and necessary to conduct a preliminary enquiry to determine whether a prima facie case exists.

The Court’s rationale was twofold. First, it noted that the objective of Section 173(3) is not to subvert the statutory obligation to register FIRs but to introduce a safeguard against the initiation of investigations based on uncorroborated or frivolous allegations. Second, the Court recognized the potential chilling effect on the fundamental right to freedom of speech if FIRs were registered without a proper preliminary inquiry. By mandating that a preliminary enquiry be undertaken prior to FIR registration in such cases, the Court ensured that the state’s investigative powers would be exercised with due regard for constitutional freedoms.

Reconciling with Fundamental Rights:

Section 173(3) and constitutional rights significantly influence Court decisions quite heavily under certain circumstances of course. Article 19(1)(a) staunchly guarantees right to freedom of speech and expression while Article 19(2) permits various necessary restrictions quite freely. FIRs rooted in allegations stemming from verbal utterances or scribbled words may trample this right rather badly under certain circumstances. Court stated police as organs of State and citizens under Constitution must ostensibly follow its foundational principles pretty rigorously. Police officers must safeguard citizens’ rights under provisions outlined in Article 51-A rigorously nowadays.

When allegations surface that potentially impinge upon free speech in expression police must exercise discretion under Section 173(3) judiciously. Operational implications stemming from Supreme Court interpretation of Section 173(3) are abundantly clear nowadays in various legal circles. Upon receipt of info about a cognizable offence warranting imprisonment from three years up to seven years police officer might shelve FIR registration till some preliminary enquiry gets done. Enquiry must wrap up swiftly within a fortnight or so to determine existence of prima facie case against respondents pretty quickly. Officers must notify complainants when no case is found allowing them provisions under Section 173 Sub-Section 4 rather quietly afterwards.

Conclusion:

In conclusion, Section 173(3) of the BNSS changes criminal procedure by allowing an inquiry before the registration of an FIR. This provision acts as a check on investigative powers in cases that involve speech, writing, or artistic expression. The courts carry the task of protecting the rights of individuals against any use of procedure that may limit speech or other forms of expression. This mechanism maintains a balance between law enforcement and individual rights overall.

[1] Criminal Appeal No.1545 of 2025.

[2] Writ Petition (Criminal) No. 68 of 2008.

King Stubb & Kasiva,
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