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

Posted On - 17 May, 2025 • By - Gaurav Singh Gaur

Introduction:

The Supreme Court in Imran Pratapgadhi v. State of Gujarat1 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 UP2 , 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.

Key Holdings Clarified: What the Court Actually Decided

The Supreme Court in Imran Pratapgadhi went beyond mere procedural clarification to deliver substantive constitutional guidance on the scope of police powers and the limits of criminalising expression. Several critical holdings deserve attention: 

  • The poem in question “Ae khoon ke pyase baat suno” was scrutinised by the Court and found to carry no religious or communal undertones, to promote non-violence and not to meet the legal ingredients of any of the alleged BNS offences. The FIR was accordingly quashed in its entirety. 
  • The Court drew a critical distinction: merely reading or listening to alleged words to assess their legality does not constitute a ‘preliminary inquiry’ under Section 173(3) and is therefore not barred by Section 173(1). This ensures police can evaluate speech before deciding whether a cognizable offence is even disclosed. 
  • The principle was explicitly extended beyond Section 196 BNS (promoting enmity) to cognate provisions including Sections 197, 299, and 302 BNS  requiring police to assess whether the legal threshold for each such speech offence is met before proceeding.
  • The Court required that the superior police officer must normally grant permission for a preliminary inquiry when the underlying allegations concern speech or artistic expression and fall within the 3–7-year imprisonment bracket, leaving little room for discretionary refusal. 
  • The judgment drew on a line of precedents requiring proof of mens rea for speech-based offences, and endorsed the standard of the ‘reasonable, strong-minded, firm and courageous individual’ rather than a ‘weak or vacillating mind’ in evaluating inflammatory content. 

Post-Judgment Developments and Evolving Jurisprudence  

Since Imran Pratapgadhi was decided in March 2025, the broader jurisprudence around Section 173 BNSS has continued to evolve through subsequent judicial and regulatory developments. 

In Anurag Bhatnagar & Anr. v. State (NCT of Delhi) & Anr.3 (July 25, 2025, 2025 INSC 895), the Supreme Court addressed a related but distinct question: whether a magistrate’s order directing FIR registration under Section 156(3) CrPC is invalid if the complainant did not first exhaust the two-tier police remedy (approaching the SHO under Section 154(1) and then the Superintendent of Police under Section 154(3) CrPC). The Court held that such procedural irregularity does not automatically vitiate the magistrate’s order, though it cautioned that this should not be read as a blanket exemption from the hierarchical remedy structure. This ruling has practical implications for complainants whose FIRs are refused in the context of speech-related allegations, offering a judicial safety valve even where police discretion is incorrectly exercised. 

The 14-day window prescribed under Section 173(3) BNSS for completion of a preliminary enquiry distinct from the 7-day limit endorsed in Lalita Kumari for CrPC cases continues to generate legal debate. Courts are increasingly likely to see challenges to FIRs where the 14-day window was not observed, or where the mandatory DSP-level approval was bypassed. 

On the technological and procedural front, BNSS Section 173 has introduced statutory recognition for e-FIRs and Zero-FIRs the latter requiring compulsory transfer to the jurisdictional station and precluding outright rejection. State Director Generals of Police have been directed to roll out e-FIR portals, and practitioners anticipate further litigation on compliance timelines and digital transparency. 

Critical Assessment: Risks and Ongoing Tensions 

While Imran Pratapgadhi is a landmark contribution to the protection of expressive freedoms, its implementation raises several ongoing concerns that courts and legislators will need to address: 

  • The provision grants significant police discretion, a double-edged power. In the wrong hands, the option to delay FIR registration could be used to shield politically connected accused or deny justice to legitimate complainants, particularly in cases that fall borderline within the 3–7 year bracket. 
  • The requirement of DSP-level approval introduces a bureaucratic layer that may slow criminal justice in time-sensitive situations, and risks creating an additional point of corruption or influence. 
  • A structural anomaly persists: Section 173(3) allows a preliminary enquiry for more serious offences (3–7 years) but not for less serious ones (below 3 years), where immediate FIR registration remains mandatory. This inversion is difficult to justify on policy grounds and may invite constitutional challenge. 
  • The interplay between Section 173(3) and digital speech offences including viral social media posts, algorithmic amplification, and cross-jurisdictional reach raises new questions about what it means to ‘evaluate’ alleged words before registering an FIR, and whether the 14-day window is adequate in fast-moving online environments. 

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.

The Supreme Court’s decision in Imran Pratapgadhi has given Section 173(3) constitutional grounding and set a clear procedural expectation: in speech-related cases involving cognizable offences carrying up to seven years of imprisonment, the mandatory preliminary enquiry is not a procedural technicality but a constitutional imperative. Subsequent developments including the Anurag Bhatnagar ruling on magistrate powers and the ongoing rollout of e-FIR infrastructure  continue to shape the practical meaning of these safeguards. As this jurisprudence matures, the central challenge will be ensuring that the discretion embedded in Section 173(3) is exercised consistently and transparently, in service of both accountability and the constitutional protection of free expression. 

  1. Imran Pratapgadhi v. State of Gujarat, Criminal Appeal No. 1545 of 2025, 2025 INSC 410, decided on March 28, 2025 by the Supreme Court of India (Bench: Justice Abhay S. Oka and Justice Ujjal Bhuyan).  ↩︎
  2. Lalita Kumari v. Government of Uttar Pradesh & Others, (2014) 2 SCC 1; AIR 2014 SC 187 (Constitution Bench).  ↩︎
  3. https://indiankanoon.org/doc/147766042/  ↩︎