A Critical Analysis of Provisions of Preliminary Enquiry Under Section 173(3) of BNSS

Introduction

Section 173(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), ostensibly codifies the mandatory duty of the police to register a First Information Report (FIR) upon receipt of information disclosing a cognisable offence. However, the introduction of subsections (3) to Section 173 creates a statutory dilemma that potentially undermines this very mandate and places the victim’s right to access the criminal justice system in jeopardy. Section 173(3) permits the officer in charge of a police station to conduct a preliminary inquiry “to ascertain whether there exists a prima facie case for proceeding in the matter” in cases where the offence is punishable for three years or more but less than seven years of imprisonment, with the prior permission of an officer not below the rank of Deputy Superintendent of Police.

Table of Contents

Conflict Between Section 173(1) and Section 173(3)

This article advances that this subsection is conceptually and operationally at odds with the legislative intent behind Section 173(1). By statutorily inserting a ‘preliminary inquiry’ requirement, the legislature has, in effect, conferred a discretion upon the police that is ex facie unfettered, unguided, and subject to arbitrary exercise. The determination of a prima facie case at the inception, without registration of an FIR, amounts to a pre-emptive adjudication of the complaint, thereby defeating the very purpose of an investigation, which is to unearth evidence. By inserting an unnecessary preliminary inquiry and multi-layered administrative steps under Section 173, the legislature bypassed this established, fair process to construct an artificial barrier between the victim and their fundamental rights.

Key Issues Highlighted

Section 173(1) mandates registration of an FIR for cognisable offences.
Section 173(3) introduces a preliminary inquiry before FIR registration in specified cases.
The preliminary inquiry requires prior approval from an officer not below the rank of Deputy Superintendent of Police.
The provision grants broad police discretion that may be exercised arbitrarily.
Determining a prima facie case before FIR registration risks prejudging the complaint.
The additional procedural requirements may impede a victim’s access to the criminal justice system.

Overview of Section 173 BNSS

Provision	Key Requirement	Potential Concern
Section 173(1) BNSS	Mandatory registration of an FIR upon receipt of information disclosing a cognisable offence.	Ensures prompt access to criminal investigation.
Section 173(3) BNSS	Permits a preliminary inquiry with prior DSP approval for offences punishable with three years or more but less than seven years.	May delay FIR registration and create an additional procedural barrier.

Provisions of Section 173 and Its Scope

Before evaluating the legislative implications and operationality of Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter ‘BNSS’), it is necessary to outline the relevant statutory text. The provision reads as follows:

Section 173: Information in Cognisable Cases

Section 173. Information in cognisable cases.

(1) All information relating to the commission of a cognisable offence, irrespective of the area where the offence is committed, may be given orally or by electronic communication to an officer in charge of a police station, and if given—

(i) orally, it shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it;

(ii) by electronic communication, it shall be taken on record by him on being signed within three days by the person giving it,

and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may by rules prescribe in this behalf:

Provided that if the information is given by the woman against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023, is alleged to have been committed or attempted, then such information shall be recorded by a woman police officer or any woman officer:

Provided further that—

(a) in the event that the person against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person’s choice, in the presence of an interpreter or a special educator, as the case may be;

(b) the recording of such information shall be videographed;

(c) The police officer shall get the statement of the person recorded by a magistrate under clause (a) of sub-section (6) of section 183 as soon as possible.

(2) A copy of the information as recorded under subsection (1) shall be given forthwith, free of cost, to the informant or the victim.

(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 a preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or

(ii) proceed with investigation when there exists a prima facie case.

(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 cognisable 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.

Key Features of Section 173 of the BNSS

Sub-section	Key Provision	Purpose
Section 173(1)	Recording of information relating to cognisable offences	Ensures mandatory recording of information and recognition of electronic complaints.
Section 173(2)	Free copy of recorded information	Protects the rights of the informant and victim.
Section 173(3)	Preliminary enquiry for offences punishable between three and seven years	Permits limited preliminary enquiry before registration of an FIR.
Section 173(4)	Remedy against refusal to register information	Provides administrative and judicial remedies.

Statutory Analysis of Section 173

An overall reconstruction of Section 173 of the BNSS reveals that the statute has adopted a qualified mandatory framework for recording information regarding cognisable offences and supplying a copy of that recorded information to the informant, a process that carries over the core rules of the former Section 154 of the CrPC.

However, Section 173(3) categorises cognisable offences based on the quantum of punishment, thereby making specific offences subject to a preliminary enquiry by a police officer prior to the registration of an FIR.

Further, Section 173(4) outlines the default remedy when such information is refused, establishing a two-tiered mechanism:

The first tier vests initial discretion in the executive.
The second tier culminates in judicial scrutiny through an application to the magistrate.

Preliminary Enquiry Under Section 173(3)

The BNSS, 2023, by way of Section 173(3), has introduced the concept of a ‘preliminary enquiry’ and prescribed its procedure for specific cognisable offences.

The legislative wisdom behind incorporating this provision, along with its operational framework and inherent lacunae, is critically examined below.

A Critical Analysis of Section 173(3)

3.1. “Without Prejudice to the Provisions Contained in Section 175”

Statutorily, while there is no structural impediment explicitly visible within the text of Section 173 itself, a holistic evaluation of its interaction with Section 175 is required to uncover potential operational friction. Section 175 BNSS represents a major reconstruction of Section 156 of the erstwhile Code of Criminal Procedure (CrPC). In adopting the old framework, the legislature added a new proviso clause to sub-section (1), retained sub-section (2) intact, and introduced stringent, restrictive criteria for the magistrate’s investigative orders under sub-section (3). Furthermore, subsection (4) was inserted to govern investigations against public servants acting in their official capacity.

To critique the operational boundaries of the preliminary inquiry, only the provisions of Sections 175(1) and 175(3) are directly relevant and reproduced below:

Section 175. Police Officer’s Power to Investigate Cognisable Case

(1) Any officer in charge of a police station may, without the order of a magistrate, investigate any cognisable case which a court having jurisdiction over the local area within the limits of such station would have power to enquire into or try under the provisions of Chapter XIV:

Provided that, considering the nature and gravity of the offence, the Superintendent of Police may require the Deputy Superintendent of Police to investigate the case.

(2) xxx…xxx…xxx

(3) Any Magistrate empowered under section 210 may, after considering the application supported by an affidavit made under sub-section (4) of section 173, and after making such inquiry as he thinks necessary and submission made in this regard by the police officer, order such an investigation as above-mentioned.

(4) xxx…xxx…xxx

Structural Paradox Between Sections 173 and 175

A structural paradox emerges when contrasting the powers of the police under these overlapping domains. Section 173(3) empowers an officer-in-charge to subject a specific category of cognisable offences (punishable by three to seven years of imprisonment) to a preliminary inquiry, subject to the prior permission of an officer not below the rank of Deputy Superintendent of Police (DySP). Concurrently, the new proviso to Section 175(1) empowers the Superintendent of Police (SP), considering the nature and gravity of an offence, to mandate a DySP to directly investigate a case.

Because the comprehensive investigative powers under Section 175(1) naturally encompass all offences registerable under Section 173, this specific band of offences falls simultaneously under the discretion of two distinct statutory actors:

The officer-in-charge seeking permission for a preliminary inquiry under Section 173(3).
The Superintendent of Police directing a full investigation under Section 175(1).

Chronological Analysis of the Statutory Powers

However, a chronological analysis reveals that this apparent conflict is functionally impossible. The preliminary inquiry power under Section 173(3) operates exclusively as a residuary, pre-registration mechanism activated before an FIR is formally recorded. Conversely, the SP’s power under the proviso to Section 175(1) to delegate an investigation to a DySP can only be operationalised after a cognisable case has been registered.

Because the SP’s power applies strictly to cases directly registered under Section 173(1) or cases where an FIR has been finalized after a preliminary inquiry, Section 175(1) can never cross paths with or impede the pre-FIR window of Section 173(3).

Magisterial Intervention Under Section 175(3)

A similar chronological barrier isolates Section 173(3) from Magisterial intervention under Section 175(3). The legislature has intentionally restricted direct access to the magistrate by mandating a strict administrative ladder under Section 173(4). An aggrieved informant must exhaust executive remedies by approaching the police hierarchy before the magistrate’s jurisdiction can be invoked.

Consequently, because the judicial remedy under Section 175(3) can only be activated after the administrative process under Section 173 has completely broken down, there is no jurisdictional occasion where the magistrate’s powers could intercept or conflict with the police officer’s active conduct of a preliminary inquiry.

Statutory Drafting Flaw

Ultimately, this temporal isolation reveals a profound flaw in the statutory drafting. Because Section 175(1) operates exclusively post-registration and Section 175(3) operates exclusively post-exhaustion, neither provision can ever operationally intersect with the pre-registration window of the preliminary inquiry.

Consequently, the legislature’s inclusion of the opening clause in sub-section (3)—”Without prejudice to the provisions contained in section 175″—is stripped of all functional utility, rendering the phrase a mere statutory illusion designed to simulate a check and balance that does not exist.

Comparative Analysis of Sections 173(3), 175(1) and 175(3)

Provision	Stage of Operation	Authority Exercising Power	Functional Role
Section 173(3)	Before FIR registration	Officer-in-Charge with DySP approval	Preliminary inquiry before registration of FIR
Section 175(1)	After FIR registration	Superintendent of Police	Directs DySP to investigate the registered case
Section 175(3)	After administrative remedies are exhausted	Magistrate	Orders investigation upon satisfying statutory conditions

Key Observations

Section 173(3) operates only during the pre-FIR stage.
Section 175(1) becomes applicable only after registration of a cognisable case.
Section 175(3) can be invoked only after the statutory administrative process has been exhausted.
The three provisions function sequentially rather than simultaneously.
The opening words “Without prejudice to the provisions contained in section 175” have no practical operational effect.

3.2. “On Receipt of Information Relating to the Commission of Any Cognisable Offence”

Under Section 173(3), the power of a police officer to conduct a preliminary enquiry is statutorily activated by the receipt of information relating to the commission of a cognisable offence. This information may be received by the police station either orally or in writing.

However, a critical loophole arises when such information is received, particularly where the officer-in-charge intends to conduct a preliminary enquiry before the registration of an FIR. The statute fails to clarify how such information is to be handled at this stage: if given orally, must it be reduced to writing?

Further, when it is received orally or in writing, should it be recorded in any special book? Should a copy of such information be supplied to the informant or victim? Must the informant or victim be notified in writing that the officer-in-charge has decided to conduct a preliminary enquiry into the alleged offence?

The statute remains entirely silent on these specific procedural aspects, even though they play a vital role in securing the rights of the informant or victim.

Major Procedural Gaps Under Section 173(3)

Issue	Statutory Position	Practical Concern
Oral information	No express procedure	Uncertainty regarding reduction into writing
Written information	No prescribed recording mechanism	Lack of transparency and accountability
Special register	No statutory requirement	Difficulty in monitoring preliminary enquiries
Copy to informant.	Not provided	The informant may remain unaware of official action.
Written intimation of preliminary inquiry	No statutory mandate	Weakens procedural fairness and victim rights

Key Takeaways

Section 173(3) activates upon receipt of information relating to a cognisable offence.
The BNSS does not prescribe the procedure for recording such information before FIR registration.
The law is silent regarding the maintenance of a separate register for preliminary enquiries.
No provision requires supplying a copy of the information to the informant or victim.
No statutory obligation exists to notify the informant that a preliminary inquiry has commenced.
These procedural omissions may adversely affect transparency, accountability, and the rights of victims and informants.

3.3. “Which Is Made Punishable for Three Years or More but Less Than Seven Years,”

Section 173(3) confers the power to conduct a preliminary inquiry on the officer-in-charge of a police station for a specific category of cognisable offences, namely, those punishable by imprisonment ranging from three to seven years. While the criminal framework includes cognisable offences with punishments below three years and exceeding seven years, the legislature has selectively targeted this intermediate category for preliminary enquiries.

Critically, this structure fails to establish any rational criteria or reasonable classification under Article 14 of the Constitution. Under this framework, low-level cognisable offences (punishable by under three years) bypass the inquiry phase and are registered immediately, whereas more serious offences (punishable by three to seven years) are subjected to pre-registration delays. This contradiction indicates an inverse relationship between the gravity of the crime and the applicable procedure, demonstrating a lack of an intelligible differentia, especially when a punishment-based classification is further qualified by the subjective parameter of the “nature and gravity” of the offence, leaving the rights of the victim open to arbitrary administrative discretion.

Key Constitutional Concerns

Section 173(3) applies only to offences punishable between three and seven years.
Less serious cognisable offences are registered immediately without preliminary inquiry.
More serious offences within the three-to-seven-year category face procedural delay.
The classification lacks an intelligible differentia under Article 14.
The subjective standard of “nature and gravity” increases administrative discretion.
The victim’s right to prompt FIR registration becomes vulnerable to arbitrary decision-making.

Category of Cognisable Offence	Punishment	Procedure Under Section 173(3)	Issue Highlighted
Low-level offences	Below 3 years	Immediate registration	No preliminary inquiry
Intermediate offences	3–7 years	May undergo preliminary inquiry	Registration delayed
Serious offences	Above 7 years	Outside this provision	Different statutory treatment

3.4. “The Officer in Charge of the Police Station May”

While the power to conduct a preliminary enquiry under Section 173(3) of the BNSS is subject to the prior permission of a superior officer, the statutory framework completely fails to mandate a reasoned exercise of discretion by the officer-in-charge. Crucially, the provision remains entirely silent on whether the initiating officer must record reasons in writing before applying for permission to hold an enquiry. Furthermore, it fails to specify whether such recorded grounds must be forwarded to the sanctioning authority or communicated to the informant. By omitting a clear, mandatory internal procedure, the statute creates a profound procedural gap. This vacuum leaves the baseline rights of the informant unprotected and creates an environment ripe for the unchecked, unfair misuse of executive power at the threshold of the criminal justice process.

Further, under Section 173(3), the legislature explicitly utilises the word “may” to confer wide discretion upon the officer-in-charge when determining whether to initiate a preliminary enquiry before registering specific mid-level offences (punishable by three to seven years of imprisonment). Although this discretion is ostensibly qualified by a statutory directive to consider the “nature and gravity” of the offence, the use of “may” effectively grants absolute choice to the station officer. In practice, it transforms an administrative assessment into a subjective gatekeeping mechanism. It gives the officer-in-charge total latitude to decide whether to register information immediately under Section 173(1) or to defer the creation of a formal record by forcing the complaint into a fourteen-day preliminary filter.

Procedural Gaps Created by the Word “May”

No statutory requirement to record reasons before seeking permission.
No obligation to communicate reasons to the informant.
No requirement that written grounds accompany the request for approval.
The discretion granted by the word “may” creates a subjective gatekeeping process.
The complaint may be delayed by a fourteen-day preliminary inquiry instead of immediate FIR registration.

Statutory Aspect	Position Under Section 173(3)	Resulting Concern
Recording of reasons	Not mandated	Lack of accountability
Communication to informant	Not required	Reduced transparency
Written request to superior officer	Not prescribed	No documentary basis for approval
Officer’s discretion	Use of the word “may”	Potential arbitrary exercise of power

3.5. “With the Prior Permission from an Officer Not Below the Rank of Deputy Superintendent of Police”

The requirement to obtain prior permission from an officer not below the rank of Deputy Superintendent of Police (DySP) is structurally hollow, as the statute fails to establish any criteria governing how this permission should be granted or refused. While the “nature and gravity” of the offence serves as the statutory baseline for the officer-in-charge to seek an enquiry, the sanctioning authority is left with no objective material or formal record to evaluate.

By impliedly permitting the officer-in-charge to seek permission without reducing the underlying basis to a written, reasoned request, the legislature allows the supervisory check to become a mere rubber-stamping exercise. When a DySP grants or denies permission without a structured evidentiary record, the exercise of authority becomes inherently arbitrary. Consequently, the literal text of Section 173(3) places arbitrary, unmonitored power in the hands of the police, ultimately conditioning a citizen’s fundamental right to lodge an FIR upon unrecorded and unreviewable administrative whims.

Issues with the Prior Permission Mechanism

No statutory criteria for granting or refusing permission.
No requirement for a written and reasoned request by the officer-in-charge.
No objective material available for the DySP to evaluate.
The supervisory approval risks becoming a rubber-stamping exercise.
The citizen’s right to lodge an FIR becomes dependent on unrecorded administrative discretion.

Requirement	Statutory Position	Constitutional Concern
Prior permission of DySP	Mandatory	No governing standards
Written reasons by officer-in-charge	Not required	Lack of transparency
Objective record before DySP	Absent	Arbitrary approval process
Judicial review of decision	Difficult due to absence of recorded reasons	Unchecked executive discretion

Summary of Constitutional Objections

The punishment-based classification under Section 173(3) is alleged to violate Article 14.
The use of the word “may” grants broad discretionary powers without adequate safeguards.
The statute does not require written reasons before initiating a preliminary enquiry.
The DySP approval mechanism lacks objective standards and documentary safeguards.
The cumulative effect may permit arbitrary exercise of police discretion at the FIR registration stage.

3.6. Considering the Nature and Gravity of the Offence

Under Section 173(3) of the BNSS, the discretion to conduct a preliminary enquiry is qualified by the criteria of “considering the nature and gravity of such offence.” However, the evaluation of these factors is left to the subjective satisfaction of the police. Even though the statute requires prior permission from a deputy superintendent of police, the assessment still rests on police discretion. The legislature has conferred unguided discretion on police officers; therefore, the appreciation of “nature and gravity” may vary from officer to officer. What requires a preliminary enquiry for one officer might not for another.

On the basis of nature and gravity, the legislature has already classified offences into cognisable and non-cognisable, providing specific remedial measures. Section 173(3), however, introduces an impermissible mechanism of ‘re-classification’ at the hands of an executive officer. By allowing a police officer to conduct a preliminary enquiry into a selected class of cognisable offences using his own perception, the provision effectively permits the executive to override, dilute, and reclassify categories established by the legislature. This second filter gives the police unchecked, unfair control, which directly violates Articles 14 and 21 of the Constitution and the doctrine of separation of powers.

While Section 173(3) contemplates considering the ‘nature and gravity’ of an offence, it provides no legislative guidance or statutory standard. In this statutory vacuum, a pertinent question arises: what degree of ‘nature’ and what type of ‘gravity’ is the officer expected to consider? In the absence of objective criteria, the test becomes inherently subjective and susceptible to arbitrary application, conferring uncanalised discretion upon the police officer.

Such discretion is not contemplated by the principal object of Section 173(1), which mandates the registration of an FIR once information discloses a cognisable offence, irrespective of its nature or gravity. The statute does not classify cognisable offences for FIR registration. Therefore, introducing the concept of a preliminary enquiry based on the unguided criteria of ‘nature and gravity’ is not only vague and unworkable, but also in derogation of the mandatory nature of Section 173(1). To permit an officer to refuse registration because an offence is not of ‘sufficient gravity’ grants them judicial power to adjudicate at a pre-investigation stage, militating against the object of setting the criminal law in motion. Consequently, this test is manifestly arbitrary, void for vagueness, and ultra vires the scheme of the Code.

Consequence of the Sequence of Clauses Is Material in the Context of Interpretation of the Section

While conferring powers of preliminary enquiry, the legislature provided criteria and conditions with specific implications: “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, consider the nature and gravity of the offence.” The legislature provided the condition first—“with the prior permission from an officer not below the rank of Deputy Superintendent of Police”—and later provided the criteria—“considering the nature and gravity of the offence.”

Further, the operational field of clauses (i) (i) and (ii) is qualified on the basis of the said criteria. Therefore, it appears that the condition becomes principal, and the criteria collateral. However, the vital issue of discretion in conducting a preliminary enquiry revolves around the criteria. Critically examining this sequence, it appears that following the said sequence, mechanical discretion operates in the field of pre-permission, while material discretion operates in post-permission. Had the legislature applied the ‘criteria’ first and the ‘condition’ later, it would have sufficed the intent of the legislature.

This structural flaw highlights a departure from the Principle of Purposive Interpretation in the law-making process, which dictates that the grammatical syntax and structural sequence of a provision must actively serve, rather than frustrate, the primary legislative intent. By subordinating the substantive criteria to a prior procedural condition, the draftsman has inadvertently allowed a mechanical administrative step to overshadow the core material evaluation, resulting in a structural inversion that compromises the clarity of the statutory mandate.

Legislative Component	Observation
Condition	Prior permission from the Deputy Superintendent of Police
Criteria	Considering the nature and gravity of the offence
Issue Highlighted	Criteria becomes subordinate to procedural permission, creating structural inconsistency.

3.7. (i) Proceed to Conduct Preliminary Enquiry

Sub-section (3) of Section 173 contains two clauses. Both clauses are preceded by the word “may”, which confers discretion upon the officer-in-charge of the police station to conduct a preliminary enquiry, subject to the prior permission of the sanctioning authority. This discretion is qualified by a subjective condition and the underlying criteria, and thereafter, both clauses (i) and (ii) are appended to this statutory requirement.

Upon obtaining permission from the sanctioning authority, the officer-in-charge of a police station is vested with two statutory options, as specified under clauses (i) (i) and (ii). Clause (i) permits the officer to “proceed to conduct a preliminary enquiry” into the alleged offence. While conferring such power on the officer-in-charge of the police station, the provision is conspicuously silent on the procedural modalities for initiating and conducting this enquiry.

The statute fails to prescribe:

Whether the informant must be intimated in writing about the initiation of a preliminary enquiry.
The extent to which the officer may exercise powers conferred upon a police officer during the investigation of a cognisable offence.
Whether entries pertaining to day-to-day proceedings are required to be recorded in the General Diary or any other register, and if so, the manner of such record-keeping.
The procedure for concluding the preliminary enquiry.
Whether the outcome or decision of the enquiry must be communicated to the informant.

This statutory vacuum on fundamental procedural safeguards is likely to foster arbitrariness and undermine the informant’s right to a fair and transparent process.

3.8. To Ascertain Whether There Exists a Prima Facie Case for Proceeding in the Matter

The object of a preliminary enquiry under Section 173(3) of the BNSS, 2023, must remain consistent with the principal object of Section 173 as a whole. Since the provision for a preliminary enquiry is introduced to subserve the purpose of the principal section, its object must not travel beyond or override the object of Section 173 as a whole.

The principal object of Section 173(1) is to set the criminal law in motion upon receipt of information disclosing a cognisable offence. In contrast, the preliminary enquiry contemplated under Section 173(3) is intended to ascertain whether a prima facie case exists “for proceeding in the matter.” This introduces an additional criterion not envisaged in the main provision.

Thus, the statute creates an artificial classification between cognisable offences themselves, those where an FIR is registered forthwith upon disclosure of an offence, and those subjected to a preliminary enquiry to test for a prima facie case. Since this classification lacks a rational nexus with the object of Section 173, it appears to be unreasonable and potentially violates Article 14 of the Constitution.

3.9. Within a Period of Fourteen Days

The said clause stipulates a timeline of fourteen days for conducting the preliminary enquiry. While the legislature has prescribed this period, it has failed to clarify the terminus a quo for its commencement. It is unclear whether the fourteen-day period is inclusive of the time spent applying for and obtaining permission from the sanctioning authority.

Procedural delays, whether intentional or otherwise, in seeking and granting such permission are foreseeable. The absence of statutory clarity on whether this delay period is to be included or excluded from the prescribed fourteen days creates ambiguity. This legislative omission directly impacts the rights of the informant or victim, as an extended and indefinite enquiry under the guise of ‘seeking permission’ would defeat the very object of prescribing a time-bound enquiry.

3.10. The Interpretation of “Or”

[This implication is evaluated immediately following the analysis of the expressions in clause (ii).]

3.11. (ii) Proceed with Investigation When There Exists a Prima Facie Case

This is clause (ii) of Section 173(3). In clause (ii), the legislature has used the expression “proceed with investigation”. Under the broader context of Section 173, the term “investigation” logically occurs only after the registration of an FIR. However, while detailing the procedural aspects of Section 173(3) of the BNSS, the legislature has omitted any express provision regarding the contingencies of FIR registration.

Clause (i) provides for the ascertainment of a prima facie case, while clause (ii) confers the power upon the officer in charge of the police station to proceed with the investigation. Yet, between these two contingencies, no explicit provision exists for the registration of the offence. Crucially, Section 173(3) remains entirely silent on the procedure and the interim handling of information.

The statute fails to specify the timeline within which an FIR must be registered once a preliminary enquiry is completed within the mandatory fourteen-day window and a prima facie case is established. This silence facilitates congenital administrative delays, occasional pauses, and the hazardous practice of keeping proceedings in abeyance.

Interpretation of the Term “Or”

Significantly, clauses (i) (i) and (ii) are connected by the disjunctive conjunction “or” at the end of the clause. This structural arrangement indicates that these clauses represent alternative remedies available to the officer-in-charge. Consequently, the officer may employ either option to the exclusion of the other, provided prior permission is obtained.

If clause (ii) is construed literally within this framework, it operates with two distinct implications:

An investigation can be initiated only with the prior permission of the sanctioning authority.
An investigation can proceed by directly bypassing the preliminary enquiry under the clause, provided a “prima facie case” already exists.

This drafting framework raises a critical question of law: under what circumstances, upon receiving information of a cognisable offence and obtaining the requisite permission, would a “prima facie case” exist without conducting the preliminary enquiry contemplated in the clause? The statute provides no guidance.

However, for interpretative purposes, even if one attempts to make the provision meaningful by substituting the conjunctive “and” for the disjunctive “or” at the end of the clause, or alternatively, by restructuring the clause (i) to commence immediately after the word “may” used in sub-section (3), even then, neither a coherent legislative objective nor a substantive statutory purpose is manifested by such a modified structure. Ultimately, the current use of “or” renders the provision internally inconsistent, creating insurmountable complications for both literal and purposive interpretations.

Procedural Infirmities and Ambiguities in Section 173(3) of BNSS

Section 173(3) BNSS introduces the statutory concept of a “preliminary enquiry” for specified categories of cognisable offences, punishable for three years or more but less than seven years of imprisonment. This provision permits an officer-in-charge to conduct an enquiry prior to the formal registration of a First Information Report (FIR).

However, the legislature has failed to define “preliminary enquiry” within the statute. Consequently, the scope, procedure, and legal boundaries of this mechanism remain entirely ambiguous. The provision exhibits critical statutory silences:

i) Absence of Timelines

The provision prescribes no timeframe for the officer-in-charge to seek the mandatory prior permission from an officer not below the rank of Deputy Superintendent of Police. Similarly, no statutory window is stipulated for the superior officer to grant or reject such a request. This regulatory vacuum effectively grants unbridled discretion to police authorities, potentially defeating the rule of prompt FIR registration.

ii) Lack of Reasoned Orders & Communication

The statute does not mandate the recording of reasons for invoking powers under Section 173(3). Furthermore, there is no requirement to communicate these reasons or the progress of the enquiry to the informant. This absence demonstrates a clear lack of transparency.

iii) Undefined Procedure & Powers

The BNSS fails to prescribe the exact manner in which a preliminary enquiry must be conducted. It remains silent on which investigative powers under the Sanhita may be lawfully exercised during this pre-FIR stage.

iv) Ambiguity on Power of Arrest

It is textually unclear whether a police officer is empowered to effectuate an arrest of a suspect during the pendency of such a preliminary enquiry.

v) Evidentiary Value of Materials

The procedure for collecting material and recording statements remains unguided. Crucially, the eventual evidentiary value of any data or statements collected during this informal stage is left undefined.

vi) Deficit of Conclusion & Accountability

The statute provides no guidance on how the enquiry is to be formally concluded. It does not mandate recording these enquiries in the station General Diary, nor does it require informing the informant if a prima facie case is made out.

Summary of Key Procedural Gaps Under Section 173(3) BNSS

Issue	Statutory Deficiency	Potential Consequence
Absence of Timelines	No prescribed time limits for seeking or granting approval.	Delay in FIR registration and excessive police discretion.
Lack of Reasoned Orders & Communication	No obligation to record or communicate reasons.	Reduced transparency and accountability.
Undefined Procedure & Powers	No prescribed procedure for conducting the enquiry.	Uncertainty regarding permissible investigative actions.
Ambiguity on Power of Arrest	No express provision regarding arrest during preliminary enquiry.	Conflicting interpretations and legal uncertainty.
Evidentiary Value of Materials	No guidance regarding collection or evidentiary status of materials.	Uncertainty during subsequent criminal proceedings.
Deficit of Conclusion & Accountability	No statutory procedure for concluding the enquiry or informing the informant.	Lack of procedural safeguards and accountability.

Key Procedural Deficiencies in Section 173(3) BNSS

Absence of statutory timelines for obtaining prior approval.
No requirement for reasoned orders or communication with the informant.
Failure to prescribe the procedure governing preliminary enquiries.
Uncertainty regarding the police power to arrest during the enquiry.
No statutory guidance on the evidentiary value of materials collected.
Absence of provisions governing the conclusion of the enquiry and accountability.

Conclusion

By conferring unguided and unfettered discretion upon the police under Section 173(3) of the BNSS, the legislature directly jeopardises the fundamental statutory right of a citizen to mandate the registration of an FIR under Section 173(1). Furthermore, the absolute legislative silence on fundamental procedural aspects leaves this newly carved-out power highly susceptible to arbitrary exercise, failing the tests of certainty, non-arbitrariness, and procedural fairness enshrined under Article 21 of the Constitution of India. Ultimately, time will determine whether the unguided statutory discretion conferred upon the police, coupled with this lack of procedural certainty, will strengthen the criminal justice system by filtering out frivolous complaints or weaken it by jeopardising the core constitutional rights guaranteed to victims under Articles 14 and 21.

Written By: Shri. Kiran S. Pawar, Advocate, Islampur Bar Association (Maharashtra) 415409.

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