Preliminary Enquiry: Pre And Post BNSS!

Lalita Kumari v. State of Uttar Pradesh and Ors: A ruling that conceptualized Preliminary Enquiry?  

The evolution of criminal procedural laws in India reflects a delicate balance between ensuring justice and safeguarding individual rights. The Code of Criminal Procedure (CrPC), 1973, has long been the cornerstone of criminal jurisprudence, providing a framework for the investigation and prosecution of offenses. However, recent legislative developments, notably the introduction of the Bharatiya Nagarik Suraksha Sanhita (“BNSS”) in 2023, have brought about significant changes, particularly concerning the concept of preliminary enquiry. This article delves into the provisions related to preliminary enquiry under both the Code of Criminal Procedure, 1973 (“CrPC”) and BNSS, examining their implications and the judicial interpretations that have shaped their application.

Preliminary Enquiry is a judicial innovation manifested in the celebrated ruling of Lalita Kumari v. Government of Uttar Pradesh and Ors.¹. Police may conduct preliminary enquiry before registration of First information Report (“FIR”). The said exercise is restricted to ascertaining if a cognizable offence is made out in given set of facts. 

The Hon’ble Court established that registration of FIR is mandatory under Section 154 of the CrPC if the information discloses commission of a cognizable offense. As a rule, no preliminary inquiry is permissible in such situations.

However, the Court recognized certain limited circumstances where preliminary inquiry may be conducted when the information received does not clearly disclose a cognizable offense. The Hon’ble Court proceeds to list certain categories of cases where preliminary enquiry may be conducted. 

The Hon’ble Court clearly defined the parameters of such preliminary inquiry. The purpose is only to ascertain whether the information reveals any cognizable offense, not to verify the veracity of the information. It must be time-bound.  Any delay and its causes must be reflected in the General Diary entry. If the inquiry ends in closing the complaint, a copy of such a closure must be supplied to the first informant with reasons. If the inquiry discloses a cognizable offense, FIR must be registered. The decision to conduct a preliminary inquiry must also be reflected in the General Diary. 

Introduction of BNSS: Contradictions and Confusion

Unlike CrPC, BNSS is equipped with a provision that specifically deals with Preliminary Enquiry. According to BNSS, upon receiving information about the commission of a cognizable offence punishable with imprisonment of three years or more, but less than seven years, the officer in charge of the police station may, after obtaining prior approval from an officer not below the rank of Deputy Superintendent of Police and considering the nature and seriousness of the offence:  (i) conduct a preliminary enquiry within fourteen days to determine whether a prima facie case exists; or (ii) proceed directly with the investigation if a prima facie case is already established².

A plain reading of the aforementioned provision reveals certain contradictions in relation to the ruling laid down in Lalita Kumari (supra):

1. Preliminary Enquiry is restricted to offences punishable between 3 to 7 years;
2. The aforesaid exercise should be completed within the time span of 14 days which is contradictory to 6 weeks as mandated by the Supreme Court of India³;
3. The objective of preliminary enquiry is to ascertain if a prima facie case exists. However, according to the Hon’ble Supreme Court of India, the objective of Preliminary Enquiry should be to ascertain if cognizable offences are being made out; 
4. Existence of Prima Facie case may require the police to test the veracity of allegations made in the complaint which is not permissible;
5. It appears that even if cognizable offences are made out, the police may conduct Preliminary Enquiry and proceed with registration of FIR when existence of Prima Facie case is established.

Imran Pratapgandhi v. State of Gujrat: Brearer of Good News? 

The Hon’ble Supreme Court judgment in Imran Pratapgadhi v. State of Gujarat and Anr⁴ provides significant guidance on preliminary inquiry under BNSS, particularly in cases involving freedom of speech and expression.

Key Aspects of Preliminary Inquiry Under Section 173 of BNSS discussed by the Hon’ble Court is as follows: 

1. Departure from CrPC Provisions: Sub-Section (3) of Section 173 of the BNSS makes a significant departure from Section 154 of the Criminal Procedure Code (CrPC). While under the CrPC (as per the Lalita Kumari case), preliminary inquiry is only permissible to ascertain whether information discloses a cognizable offense, Section 173(3) of BNSS allows preliminary inquiry even when information clearly discloses a cognizable offense.
2. Scope of Preliminary Inquiry: Under Section 173(3) of BNSS, when information relating to a cognizable offense punishable by 3-7 years imprisonment is received, the officer-in-charge of a police station may, with prior permission from a superior officer, conduct a preliminary inquiry to ascertain whether a prima facie case exists.
3. Process After Preliminary Inquiry: After conducting a preliminary inquiry, if the officer concludes that a prima facie case exists, they should immediately register an FIR and proceed with investigation. If no prima facie case is made out, the officer should inform the complainant so they can pursue remedies under Section 173(4).
4. Preliminary Assessment of Words: In cases involving offenses based on spoken or written words (such as under Sections 196, 197, 299, and 302 of BNS), the police officer must consider the meaning of those words to determine if they constitute a cognizable offense. This assessment does not amount to an impermissible preliminary inquiry under Section 173(1).

From the bare perusal of the aforementioned ruling by the Hon’ble Supreme Court of India, it appears that the police have the discretion to conduct Preliminary Enquiry, even when cognizable offences are being made out. Further, once a prima facie case is established, the police may proceed to register an FIR directly, which makes such situations an exception. However, the ruling seems to be focused and aligned to questions involving violation of fundamental rights, especially freedom of speech and expression. The larger questions remain: What is the extent of Preliminary Enquiry permissible to ascertain a Prima Facie case and can this be achieved without entering into the merits of the matter?  How does one assess whether a Prima Facie case exists without assessing credibility or reliability? Could the language in BNSS open the door to subjective policing, particularly in politically or communally sensitive cases? Does Section 173(3) conflict with Article 14 (equal protection) if similar offenses are treated differently based on arbitrary discretion?

Conclusion: Road riddled with uncertainties?

At the heart of the conflict is a definitional ambiguity where Lalita Kumari rules that Preliminary enquiry cannot evaluate truthfulness, it only determines whether the information, if true, constitutes a cognizable offense whereas BNSS Talks of identifying a “Prima Facie case”, which by nature, requires some level of factual assessment.

The transition from CrPC to BNSS represents more than a semantic shift; it alters the procedural DNA of criminal investigations. While BNSS provides clear statutory recognition to preliminary enquiry, it arguably oversteps the boundaries crafted by the judiciary in Lalita Kumari.

Though Imran Pratapgandhi provides early guidance, it remains contextually narrow, largely focused on speech-related offenses. The true test of BNSS will come when its provisions are challenged in the context of routine criminal cases and allegations of abuse or delay.

As the legal community waits for more definitive rulings, it is imperative that judicial oversight remains robust, and that principles of fairness, prompt justice, and constitutional freedoms guide the evolving framework of preliminary enquiry in India.

Footnotes

1. Lalita Kumari v. Government of Uttar Pradesh and Ors, (2014) 2 SCC 1

2. Section 175(3) of the BNSS

3. Lalita Kumari v. State of Uttar Pradesh and Ors., (2023) 9 SCC 695

4. Imran Pratapgandhi v. State of Gujrat and Anr., 2025 SCC OnLine 678

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