Preliminary enquiry is an initial assessment conducted by the police to determine whether the information received from an informant warrants the registration of a First Information Report (FIR). This is a crucial step as the registration of an FIR sets the criminal law machinery in motion with the police acquiring significant investigative powers, including the power to arrest. This article focuses on the changes introduced to this concept by the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the former Code of Criminal Procedure, 1973 (CrPC) with effect from July 1, 2024.
Position under CrPC
The concept of preliminary enquiry was not codified under the former CrPC but was read into it by judicial pronouncements. The Supreme Court, in the landmark judgment of Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1, held that registration of an FIR is mandatory if the information received discloses the commission of a cognizable offence (i.e., an offence for which the police can arrest without a warrant). However, where the information did not disclose a cognizable offence but indicated the necessity for an enquiry, a preliminary enquiry could be conducted solely to determine whether such an offence is made out. The scope of such preliminary enquiry was not to verify the veracity of the information but only to ascertain whether it revealed the commission of a cognizable offence.
Position under BNSS
The BNSS has explicitly codified the concept of preliminary enquiry, but with notable modifications. While the BNSS retains the core principle of registration of an FIR being mandatory when a cognizable offence is disclosed (Section 173(1)), it makes a significant departure from the ratio of Lalita Kumari by carving out an exception for cognizable offences punishable with imprisonment of three years or more but less than seven years (Section 173(3)). In such cases, the police may, with prior approval from an officer not below the rank of Deputy Superintendent of Police (DSP),considering the nature and gravity of the offence, either (i) conduct a preliminary enquiry within 14 days to ascertain whether there exists a 'prima facie' case to proceed, or (ii) directly proceed with the investigation if such a prima faciecase exists.
Interpreting the above, the Supreme Court, in Imran Pratapgadhi v. State of Gujarat, 2025 SCC OnLine SC 678, has held that, where the alleged cognizable offence is punishable with three years or more but less than seven years, even if the information received by the police discloses the commission of a cognizable offence, the police is not obligated to file an FIR and has the discretion to conduct a preliminary enquiry to determine whether a prima facie exists. If the police concludes that a prima facie case exists, it should file the FIR and proceed to investigate. If it concludes otherwise, it should inform the informant who can pursue other remedies. Thus, the scope of preliminary enquiry for these cases has been modified to the threshold of a 'prima facie case' as opposed to the principle laid down in Lalita Kumari, which restricted the scope of preliminary enquiry to ascertaining whether the information revealed the commission of a cognizable offence.
Conceptual Challenges
It is not clear why a distinction has been created between cognizable offences punishable with imprisonment of three years or more but less than seven years and other cognizable offences. However, more importantly, this new framework has raised a conceptual challenge: if the information already discloses a cognizable offence, what additional threshold must be met to conclude that a prima facie case exists? Neither does BNSS define what constitutes a 'prima facie case', nor does it explain how it would be different from the existence of the information disclosing a cognizance offence. A prima facie case could certainly not mean that the information should be found credible, as the Supreme Court has repeatedly clarified that credibility or merits of the information is not a precondition for registering an FIR and is something that is tested during investigation. In that case, what principles can the police apply to determine whether a prima facie case exists to register an FIR.
The new provision thus poses certain potential for ambiguity and inconsistency in how such cases are to be treated by the police, leaving room for arbitrary denials to register FIR or abuse of the discretion vested in the police.
Impact on informant's rights
The ambiguity discussed above also impacts the rights of the informant, who is entitled to approach the Magistrate for a direction to the police to register the FIR and investigate, if the police refuses to register an FIR. Before exercising its discretion to issue such a direction, the Magistrate is required to apply his mind to the allegations to ascertain whether the ingredients required to constitute the alleged cognizable offence are made out and whether a police investigation is necessary for collecting evidence.
The BNSS has made a significant addition to this concept as well. Under Section 175(3), the Magistrate is now statutorily mandated to also consider the police's submissions explaining their refusal to register the FIR before issuing any direction to investigate (Supreme Court in Om Prakash Ambadkar v. State of Maharashtra, 2025 SCC Online SC 238).
In view of the changes introduced by BNSS, if the informant approaches the Magistrate upon the police's refusal to register an FIR for cognizable offences punishable with 3 £ 7 years' imprisonment, the police would be required to explain how a prima facie case did not exist. However, unless the contours of the term prima facie case are defined, it is unclear on what basis will the Magistrate evaluate the submissions made by the police. In other words, how will the Magistrate ascertain that the police's reasons to conclude that no prima facie exist are correct or not. Even for the informant, the ability to challenge police's refusal becomes difficult without any guidance to determine the illegality or incorrectness of such refusal.
Conclusion
The statutory changes to the scope of preliminary enquiry could potentially lead to ambiguity and inconsistency in the manner preliminary enquiries are conducted by the police across the country. An interpretation to the scope of 'prima facie case' in the context of a preliminary enquiry under S.173(3) of the BNSS and guidelines for the police to exercise discretion vis-à-vis conduct of preliminary enquiries would help.
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