What Is Preliminary Enquiry (PE) Under BNSS?
1. Background
Prior to Lalitakumari Judgement there were discretionary procedures applied by Police, either in form of chance raid etc.
2. Post LalitaKumari
The Constitution Bench says that where the information does not disclose a cognizable offence, but indicates that inquiry is necessary, a preliminary inquiry may be conducted “only to ascertain whether cognizable offence is disclosed or not.”
3. Text of Provisions
Meaning of “Inquiry”
“inquiry” means every inquiry, other than a trial, conducted under this Sanhita by a Magistrate or Court;
Meaning of “Investigation”
Investigation: Includes all the proceedings under this Sanhita for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.
Meaning of “Cognizable Offence”
“cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant.
Section 173
173(3) Without prejudice to the provisions contained in section 175, on receipt of information relating to the commission of any cognizable offence, which is made punishable for three years or more but less than seven years, the officer in charge of the police station may with the prior permission from an officer not below the rank of Deputy Superintendent of Police, considering the nature and gravity of the offence,-
- (i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days;
Section 173(4)
Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1), may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Sanhita, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence failing which such aggrieved person may make an application to the Magistrate.
Section 225 — Magistrate’s Inquiry
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance…inquire into the case himself…for the purpose of deciding whether or not there is sufficient ground for proceeding
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath
4. Principles of Caselaws Under Section 202 of CrPC Analogues to 225 of BNSS
2006CRILJ1432
It is settled principle that while summoning an accused, the court has to see the prima facie evidence. The ‘prima facie evidence’ means the evidence sufficient for summoning the accused and not the evidence which is sufficient to warrant the conviction.
1976 AIRSC 1947
It would thus be clear from the two decisions of this Court that the scope of the inquiry under s. 202 of the. Code of Criminal Procedure is extremely limited-limited only to the ascertainment of the truth of falsehood, of the allegations made in the complaint-
- on the materials placed by the complaint before the Court;
- for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and
- for deciding the question purely from the point of view of the complainant without at all adverting to any defence that, the accused may have.
In fact it is well settled that in proceedings under s. 202 the accused has got absolutely no locus us standi and is not entitled to be heard on the question whether the process should be issued against him or not.
5. Conclusion From the Law and Provisions
In view of the Law above quoted. as stated above and Provisions of 173 being pari materia identical to 225 of BNSS following conclusion can be drawn.
6. Judicial Meaning of “Prima Facie Case” and Preliminary Enquiry
The judicial meaning of “prima facie case” [PFC] provides useful guidance as to the concept of threshold satisfaction for PE
7. Protective Function of Preliminary Enquiry
The PE is not merely a procedural option. It performs a protective function and safeguard against the initiation of criminal proceedings on allegations which, although couched as cognizable offences, do not disclose a sufficient prima-facie basis for proceeding. Thus the Intent and purpose of Safeguard cant be discounted.
8. Role of IO, DSP and SP Under Section 173
1st under 173, the IO cannot start investigation unless he registers FIR. 2ndly IO cannot do PE without reasoned permission of the DSP, and lastly, only SP can register or direct registration of FIR and investigate himself of through other officer under 173(4), failing that through 173(3). Thus if the DSP permits PE and no offence is made out, the Complainant has route under 174(4).
9. Requirement of a Reasoned DSP Order
Under 173(3) if DSP has given permission for PE, the decision to file FIR with detailed Order of satisfaction of DSP is also sin qua non, upon the IO. Else the checks and balances losses meaning.
10. Reasons Required for Preliminary Enquiry
Further if the IO at 1st instance is not satisfied that the information given by the complainant doesn’t disclose Offence, he is bound to submit a request letter to DSP with reasons as to why the PE is required to be done.
Thereon the DSP is required to also deliberate and give reasons why the PE is needed, and then alone he can grant permission.
None of these 2 process of IO and DSP can be an attempt to start a fishing inquiry. Infact 173(3) is midway between 173(4), and 173(1) and (2) of BNSS.
11. Preliminary Enquiry Cannot Become a Substitute for Investigation
Assume the informant supplies facts A and B. If, before registration of the FIR, the police collect C and D through acts which amount to investigation, the question arises whether C and D can legitimately be used to constitute the prima-facie case required by Section 173(3).
If the police are permitted to conduct an investigation first, collect C and D, and then use C and D to conclude that a prima-facie case existed for registration of the FIR, the statutory sequence is potentially reversed.
The PE cannot become a device by which the State conducts the very investigation which Section 173 requires to commence only after FIR registration
12. Documentation of Preliminary Enquiry and Judicial Scrutiny
Therefore when the route of PE is taken, the entire documentation of complaint, process of the written reasons of the IO recorded in his proposal for permission for PE, the written reasons of the DSP for grant of written permission to conduct PE, the evidence collected in the PE etc. and final approval of the DSP are mandatory to be part of FIR.
Where Section 173(3) is invoked, the PE necessarily generates a decision-making record.
Since the existence of a PFC is the statutory condition for moving from the PE to FIR and investigation, the material and reasons forming the basis of that determination cannot be treated as legally irrelevant or immune from judicial scrutiny.
Where Parliament conditions the exercise of coercive statutory power upon the formation of a specified satisfaction, courts have required that the existence and rational basis of that satisfaction remain judicially examinable, even where the statute does not expressly prescribe a detailed speaking order.
13. PE Is Not Preliminary Investigation
One basic is that the PE cannot be permitted to become a substitute for the investigation which the statute requires to follow only upon registration of the FIR.
We need to understand that the PE is not Preliminary Investigation, which falls post FIR stage.
It may be noted that PE is not equal to Investigation.
Therefore the IO and DSP are required to be look into the merit of the complaint only, and allow complainant to give evidence to support his complaint.
At this stage neither IO nor the DSP can permit doing investigation.
They have to concentrate only on PFC, and which burden is on the Complainant.
14. Purpose of Preliminary Enquiry Under Section 173(3)
From the above 1 fact is clear that PE as in 202/225, is due to doubt of satisfaction of ingredients of the Offence on the basis of information disclosed in the complaint, and the IO need to determine whether PFC exists for filing FIR.
15. Constitutional Significance of Preliminary Enquiry
The PE is the State’s decision-making process for crossing the hurdle and threshold of doubt, to go into coercive criminal process of FIR and is amiable to Writ Jurisdiction.
Therefore, once the State invokes that exceptional pre-FIR mechanism and uses PE material to cross the threshold of doubt, into FIR, Article 21 provides that the PE cannot become an invisible State process immune from scrutiny and the record of the IO and DSP can be called in question.
Once the State invokes the exceptional pre-FIR PE mechanism under Section 173(3), and the resulting PFC determination becomes the basis for commencing the coercive criminal process, Article 14 and Article 21 require that the legality of that decision-making process remain capable of effective judicial scrutiny.
The PE cannot be treated as an invisible executive process wholly immune from examination merely because it precedes the FIR.
16. Conclusion
A. PE Cannot Substitute Investigation
The PE therefore cannot lawfully be converted into a substitute for investigation. Material may be considered in the PE only to the extent legitimately necessary to ascertain whether the statutory threshold exists; the PE cannot become an unrestricted exercise in collecting evidence in order to manufacture that threshold.
B. Constitutional Safeguards and Judicial Scrutiny
This distinction has constitutional significance.
The Section 173(3) determination is a State decision which determines whether the individual will be subjected to the formal criminal process of FIR and investigation.
Article 14 requires that the statutory discretion not be exercised arbitrarily, while Article 21 requires the procedure by which the State subjects a person to coercive criminal process to be neutral, fair, just and reasonable.
Accordingly, once Section 173(3) is invoked, the PE cannot be treated as an invisible executive process wholly immune from judicial scrutiny.
The material and reasons forming the basis of the prima-facie determination must remain capable of being called for and examined by the constitutional court where the legality of the FIR or the Section 173(3) process is challenged.
Written By: Sandeep N. Kapatkar, Advocate Pune
