With the aim of curbing frivolous FIRs against speeches, writings and artistic expressions, the Supreme Court on Friday mandated that a preliminary inquiry must be conducted before lodging the FIR, if the offences alleged are punishable with imprisonment between three to seven years.
The Court held so after referring to Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
Section 173(3) provides that for offences punishable with imprisonment between three to seven years, the police may conduct a preliminary enquiry within 14 days to establish a prima facie case, with prior approval from a Deputy Superintendent of Police (DSP).
The Court noted that there are certain offences dealing with speech and expressions, which are recognised as reasonable restrictions as per Article 19(2) of the Constitution. If there is an allegation regarding the commission of such an offence, and if it is punishable by 3-7 years, then the police must conduct a preliminary inquiry before registering the FIR. The Court adopted this interpretation to safeguard the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution.
A bench comprising Justice Abhay S Oka and Justice Ujjal Bhuyan observed :
“Therefore, when an allegation is of the commission of an offence covered by the law referred to in clause (2) of Article 19, if sub Section (3) of Section 173 is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the accused. This will ensure that the fundamental rights guaranteed under sub-clause (a) of clause (1) of Article 19 remain protected. Therefore, in such cases, the higher police officer referred to in sub Section (3) of Section 173 must normally grant permission to the police officer to conduct a preliminary inquiry.”
With the aim of curbing frivolous FIRs against speeches, writings and artistic expressions, the Supreme Court on Friday mandated that a preliminary inquiry must be conducted before lodging the FIR, if the offences alleged are punishable with imprisonment between three to seven years.
The Court held so after referring to Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
Section 173(3) provides that for offences punishable with imprisonment between three to seven years, the police may conduct a preliminary enquiry within 14 days to establish a prima facie case, with prior approval from a Deputy Superintendent of Police (DSP).
The Court noted that there are certain offences dealing with speech and expressions, which are recognised as reasonable restrictions as per Article 19(2) of the Constitution. If there is an allegation regarding the commission of such an offence, and if it is punishable by 3-7 years, then the police must conduct a preliminary inquiry before registering the FIR. The Court adopted this interpretation to safeguard the fundamental right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution.
A bench comprising Justice Abhay S Oka and Justice Ujjal Bhuyan observed :
“Therefore, when an allegation is of the commission of an offence covered by the law referred to in clause (2) of Article 19, if sub Section (3) of Section 173 is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the accused. This will ensure that the fundamental rights guaranteed under sub-clause (a) of clause (1) of Article 19 remain protected. Therefore, in such cases, the higher police officer referred to in sub Section (3) of Section 173 must normally grant permission to the police officer to conduct a preliminary inquiry.”
"The police officer to whom information is furnished will have to read or hear the words written or spoken, and by taking the same as correct, decide whether an offence under Section 196 is made out. 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."
Court explains changes from S.154 CrPC
Section 173(1) of the BNS mandates the registration of an FIR if the information received discloses a cognizable offence. The court noted that provision is largely similar to Section 154 of the CrPC, which was in force before the introduction of the BNS. Under this section, the police are duty-bound to register an FIR upon receiving credible information about a cognizable offence.
However, the Court emphasized the distinction introduced by Section 173(3) of the BNS. Unlike the CrPC, the BNS includes a specific provision allowing for a preliminary inquiry before registering an FIR in certain circumstances.
“sub-Section (3) of Section 173 of the BNSS makes a significant departure from Section 154 of the CrPC. It provides that when information relating to the commission of a cognizable offence which is made punishable for 3 years or more but less than 7 years is received by an officer-in-charge of a police station, with the prior permission of a superior officer as mentioned therein, the police officer is empowered to conduct a preliminary inquiry to ascertain whether there exists a prima facie case for proceeding in the matter.”
The Court reasoned that the purpose of this provision is to act as a safeguard against the misuse of the legal process.
“Therefore, in a case where sub-Section (3) of Section 173 is applicable, even if the information pertaining to the commission of any cognizable offence is received, an inquiry can be conducted to ascertain whether a prima facie case exists for proceeding in the matter. The intention appears to be to prevent the registration of FIRs in frivolous cases where punishment is up to 7 years, even if the information discloses the commission of the cognizable offence.”
The Court also elaborated on the distinction between a preliminary inquiry under Section 173(3) and the assessment required under Section 154 of the CrPC. It referred to the guidelines laid down in the case of Lalita Kumari v. Government of U.P. (2014) case, as per which a preliminary inquiry is permissible only when the information received does not disclose a cognizable offence but suggests the need for further inquiry to determine the nature of the offence. However, under the BNS, the inquiry under Section 173(3) extends further, allowing the police to evaluate whether there is sufficient basis to proceed with the registration of an FIR, the Court said.
In the facts of the present case, the Court opined that offences alleged against Pratapgarhi were not made out even without taking recourse to Section 173)(3) of the BNSS.
Case Title – Imran Pratapgadhi v. State of Gujarat
