Introduction

The Supreme Court of India recently delivered a significant judgment clarifying the procedural differences between the Code of Criminal Procedure (CrPC) and its replacement, the Bharatiya Nagarik Suraksha Sanhita (BNSS), regarding the registration of First Information Reports (FIRs) and the conduct of preliminary inquiries. In a case involving Congress Rajya Sabha MP Imran Pratapgarhi, a bench comprising Justice Abhay Oka and Justice Ujjal Bhuyan meticulously analyzed these provisions, highlighting a “significant departure” in the BNSS that provides greater discretion to police officers in certain cases.

Legislative Framework: CrPC vs. BNSS

Section 154 CrPC: Mandatory FIR Registration

Under Section 154(1) of the CrPC, when information relating to a cognizable offense is provided to the officer in charge of a police station:

1. The information must be reduced to writing
2. It must be read over to the informant
3. It must be signed by the informant
4. It must be entered into a book in the prescribed form

The Supreme Court emphasized that Section 154 CrPC does not provide for any preliminary inquiry before registering an FIR. This aligns with the landmark judgment in Lalita Kumari v. Govt. of U.P., which established that if information clearly discloses a cognizable offense, FIR registration is mandatory without any preliminary inquiry.

Section 173 BNSS: Introduction of Preliminary Inquiry

The BNSS, which has replaced the CrPC, maintains similar provisions in Section 173(1) regarding the recording of information about cognizable offenses. However, Section 173(3) introduces a significant innovation in criminal procedure by providing for preliminary inquiry in specific circumstances.

Under Section 173(3) BNSS, when information relates to a cognizable offense punishable with imprisonment of three years or more but less than seven years, the officer in charge, with prior permission from a superior officer (at least of the rank of Deputy Superintendent of Police), may conduct a preliminary inquiry to ascertain whether a prima facie case exists.

Key Differences Highlighted by the Supreme Court

1. Scope of Mandatory Registration:
   • CrPC: Under Section 154, if information discloses a cognizable offense, FIR registration is mandatory without any preliminary inquiry.
   • BNSS: Section 173(1) maintains this requirement, but Section 173(3) creates an exception for offenses punishable with imprisonment of three to seven years.
2. Preliminary Inquiry:
   • CrPC: Preliminary inquiry is permissible only when information does not clearly disclose a cognizable offense but indicates the necessity for inquiry.
   • BNSS: Even if information clearly discloses a cognizable offense (of the specified category), a preliminary inquiry may be conducted to establish a prima facie case.
3. Discretionary Power:
   • CrPC: Limited discretion to police officers regarding FIR registration for cognizable offenses.
   • BNSS: Expanded discretion to conduct preliminary inquiry in cases of offenses punishable with three to seven years’ imprisonment.

Practical Implications and Procedural Safeguards

The Court noted that this provision in the BNSS aims to prevent registration of frivolous FIRs in cases where the alleged cognizable offense falls within the specified punishment range. This is particularly significant in cases involving the exercise of fundamental rights, such as freedom of speech under Article 19(1)(a).

Following the preliminary inquiry under Section 173(3) BNSS:

• If a prima facie case is established, the FIR must be registered immediately
• If no prima facie case is found, the informant must be notified
• The informant can then approach the Superintendent of Police under Section 173(4) BNSS

Distinction from Reading/Understanding the Information

The Court made an important distinction between conducting a preliminary inquiry and simply reading/understanding the information provided:

“Reading of written words, or hearing spoken words will be necessary to determine whether the contents make out a case of the commission of a cognizable offence. The same is the case with offences punishable under Sections 197, 299 and 302 of the BNS. Therefore, to ascertain whether the information received by an officer-in-charge of the police station makes out a cognizable offence, the officer must consider the meaning of the spoken or written words. This act on the part of the police officer will not amount to making a preliminary inquiry which is not permissible under sub-Section (1) of Section 173.”

Conclusion

The Supreme Court’s clarification marks an important development in Indian criminal procedure. While maintaining the principle of mandatory FIR registration for cognizable offenses, the BNSS introduces a calibrated approach that allows for preliminary inquiry in a specified category of cases. This provision strikes a balance between ensuring prompt investigation of serious offenses and preventing misuse of the criminal justice system in less severe cases, particularly those involving constitutional rights.

This judgment provides valuable guidance to law enforcement agencies on the proper application of these provisions and emphasizes the need for careful consideration when dealing with information that may implicate fundamental rights.

Disclaimer

This article is intended for informational purposes only and does not constitute legal advice. The analysis presented is based on our understanding of the Supreme Court judgment and relevant provisions of law as of April 2025. Readers are advised to consult with a qualified legal professional for specific legal issues or concerns. The views expressed in this article are those of Shailendra Singh & Co. and do not necessarily reflect the official position of any court, government, or regulatory authority. Laws and their interpretations may change over time, and this article may not reflect the most current developments.