The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, marks a significant legislative shift, replacing India’s longstanding Code of Criminal Procedure (CrPC), 1973. While retaining the core framework for criminal investigations, it introduces key enhancements, including clear guidelines on pre-FIR investigations.
A long-standing question in India’s legal landscape is whether police can initiate preliminary inquiries or gather facts before officially recording a First Information Report (FIR). This is not merely theoretical – it has practical implications:
- Example 1 (Complex Crime): Police intelligence indicates a large-scale cyber fraud involving multiple individuals. Conducting initial surveillance or discreetly interviewing witnesses before filing an FIR may prevent alerting perpetrators and preserve evidence.
- Example 2 (Imminent Threat): An anonymous tip suggests a kidnapping or major robbery later that day. Police may need to monitor or secure the scene to prevent the crime, without immediately filing an FIR.
These scenarios illustrate the tension between swift police action and due process. Over decades, courts have addressed this grey area, and the BNSS now codifies guidance on how and when pre-FIR investigations may proceed.
Statutory Framework Under BNSS, 2023:
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Section 173(1) BNSS:
Mandates immediate FIR registration upon receiving information of any cognizable offence, reinforcing the directives of Lalita Kumari v. UP (2014).
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Section 173(3) BNSS:
Provides for a preliminary inquiry before FIR registration for specific offences:
- Scope: Cognizable offences punishable with 3-7 years of imprisonment.
- Procedure: Requires prior approval from an officer not below DSP rank.
- Time Limit: Inquiry must conclude within 14 days to ascertain whether a prima facie case exists.
This codifies judicial exceptions from Lalita Kumari, allowing limited preliminary inquiries to filter frivolous complaints.
Key Judicial Pronouncements:
- Lalita Kumari v. UP (2014): Immediate FIR required for serious crimes; preliminary inquiry allowed in sensitive cases. BNSS formalizes this with a 14-day limit.
- Khwaja Nazir Ahmad v. King Emperor (1945): FIR not a prerequisite; police may secure evidence before formal registration.
- State of Haryana v. Bhajan Lal (1992): Outlined circumstances justifying preliminary inquiries and limits on police discretion.
- Tapan Kumar Singh v. Bihar (2003): Brief or vague information can trigger FIR for cognizable offences.
- Union of India v. Prakash P. Hinduja (2003): Credible information alone suffices to initiate police action.
- Sirajuddin v. Madras (1970): Preliminary inquiries protect public officials from false allegations.
Practical Implications:
Under BNSS, police may conduct structured preliminary inquiries, limited to 14 days for specified offences, with Dy. SP approval. At the same time, immediate FIR registration remains mandatory for all cognizable offences, ensuring prompt investigations. Police are also authorized to take protective measures, such as securing crime scenes or preserving evidence, even before an FIR is formally recorded.
This framework balances the need for swift FIR registration with safeguards against frivolous or malicious complaints, ensuring that investigations remain lawful, effective, and procedurally fair.
Conclusion:
The BNSS, 2023, codifies judicial exceptions into statutory law, explicitly permitting preliminary inquiries under defined conditions. Guided by precedents like Lalita Kumari and Khwaja Nazir Ahmad, the law allows investigations to begin before FIR registration in specific circumstances, enabling police to gather facts, secure evidence, and prevent crime while upholding due process. By clarifying the scope of pre-FIR actions, the BNSS fosters a more transparent, efficient, and equitable criminal justice system.
