The new criminal laws were brought into force amid much furore and dissent. In addition to renumbering the provisions, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces the erstwhile Code of Criminal Procedure, 1908 (CrPC), has introduced Section 173(3), which empowers the police to conduct a preliminary inquiry in a certain class of cognisable offences before registration of a First Information Report (FIR).
At first glance, allowing for a preliminary inquiry to be conducted in suitable cases would prevent the registration of malicious or arbitrary FIRs, but there is a catch. The wording of Section 173(3) effectively enables police officers at the first instance to delay registration of an FIR, despite a cognisable offence (offences for which the police do not need a warrant to investigate) being made out in the complaint. As such, the potential for abuse of the provision by errant police officials is ever present, more so in cases where the complainant / first informant may be from a religious or ethnic minority or a member of a historically marginalised community.
Internal surveys have revealed that the police often act in excess of their authority when registering FIRs, including instances of wilful failure to register an FIR. This abuse of authority is more rampant in circumstances when the complainant / first informant is a member of a historically marginalised community. The enactment of Section 173(3) could possibly serve as another tool in the police’s arsenal to delay and frustrate attempts by individuals who may seek enforcement of their rights.
While the Union government has framed and formulated a Standard Operating Procedure (SOP) for conducting such preliminary enquiries under the BNSS, it remains to be seen whether police officials can be sanctioned for failing to comply with the terms of such SOPs.
The ruling of the Supreme Court in Lalita Kumari vs State of Uttar Pradesh was the first authoritative pronouncement on the scope of conduct of a preliminary inquiry. The issue for consideration in the case was whether a police officer is bound to register an FIR upon receipt of any information relating to the commission of a cognisable offence or whether the police officer has the power to conduct a ‘preliminary inquiry’ to test the veracity of such information before registration of an FIR.
The Supreme Court held that if a complaint discloses the commission of a cognisable offence, the police must mandatorily register an FIR, and that no preliminary inquiry is permissible in such a situation. At the same time, the Court acknowledged the possibility of miscreants abusing the criminal justice system, resulting in the registration of frivolous FIRs’. As such, the Supreme Court identified certain exceptions to the rule of mandatory registration of FIR, and in such cases, a preliminary inquiry may be conducted. These exceptions include, but are not limited to:
Matrimonial disputes/family disputes
Commercial disputes
Medical negligence cases
Corruption cases
Cases where there is an abnormal delay in the institution of criminal proceedings (more so in cases where the complainant / first informant fails to offer a satisfactory explanation for the delay)
The courts have since clarified that the accused cannot claim for the conduct of a preliminary inquiry as a matter of right and that it is not the position of law that proceedings cannot be instituted without the conduct of a preliminary inquiry.
The Section states that upon receipt of any information relating to the commission of a cognizable offence, which is made punishable for three years or more but less than seven years, the police officer may, with the prior permission of an officer not below the rank of a DSP, proceed to conduct a preliminary inquiry to ascertain whether a prima facie case exists. Such a preliminary inquiry is to be conducted within fourteen days. This discretion offered to the police officer, despite the information relating to the commission of a cognisable offence, sits in direct contravention to the law laid down by Lalita Kumari.
Furthermore, the use of the words prima facie case in the statute could result in situations where the officer may conduct a mini-trial to determine whether such a prima facie case exists or not. The Supreme Court has consistently held that the scope (or objective) of the preliminary inquiry is not to verify the veracity of the information received but only to ascertain whether the information reveals the commission of a cognisable offence.
It would be pertinent to state that Section 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, categorically states that no preliminary inquiry shall be required for the registration of an FIR for offences under the Act. Furthermore, Section 199(c) of the BNSS makes it punishable for the police to fail to record information on offences against women and children. As such, these classes of offences would remain exempt from the application of Section 173(3) of the BNSS.
The introduction of a statutory prescription enabling preliminary inquiry invites the possibility of its abuse. These apprehensions are not unfounded. In Lalita Kumari, the Supreme Court, referring to the V.S. Malimath Committee on Reforms of Criminal Justice System and NCRB statistics, remarked that the number of FIRs not registered is approximately equal to the number of FIRs actually registered.
In an internal survey conducted by the Maharashtra State Police back in 2017, it was found that in 50% of the cases, police stations refused to register an FIR, despite the offences being cognisable (or burking as it is called). It was further revealed that in numerous cases where FIRs were registered, the police would minimise the offences as originally reported by applying non-cognisable sections. This was done to delay the commencement of investigation, to ensure that pendency rates did not increase in their official statistics.
The failure in timely registration of an FIR and recording of detailed statements of the complainant and eyewitnesses at the first instance can cause grave prejudice to the case of the complainant. Delays can result in memories fading, which leads to potentially inaccurate or incomplete factual narration of events, which can directly hamper the quality of investigation and subsequent prosecution.
As such, any abuse of S.173(3) is only bound to disproportionately affect complainants / first informants who may be economically disadvantaged, or may belong to a religious or ethnic minority, or are a member of a historically marginalised community. A research exercise undertaken by the University of Delhi, citing Rachel Wahl noted that caste-based inequalities had a dramatic influence on policing and the manner in which they treated first informants/complainants who were Muslims or were members who belonged from a Scheduled Caste or a Scheduled Tribe.
A 2019 survey conducted by Common Cause found that half of the police force that participated in the survey demonstrated an anti-Muslim bias, making them less likely to intervene in stopping crimes against Muslims. It is more often the case that such individuals, in the absence of social capital and economic resources, result in the unfortunate reality where they remain unaware of their rights and remedies in law.
The Ministry of Home Affairs, perhaps anticipating haphazard enforcement of the provision, rolled out a Standard Operating Procedure (SOP) for the conduct of preliminary enquiry under the Sanhita. The SOP fixes timelines within which permissions are to be sought for the conduct of the preliminary inquiry and identifies possible courses of action in the event an officer fails to complete the inquiry within 14 days, including initiation of departmental action.
That being said, the preface to the SOP states that the document is a suggested guideline, making it an administrative document. This raises questions about the enforceability and binding value of such an SOP in the event an erring police official fails to comply with the provisions of the SOP.
Furthermore, the SOP does not derive its authority from any provision of the BNSS, nor is it an enactment passed by the legislature, making it unenforceable in a court of law.
There is no doubt that a preliminary inquiry, if done right and in strict adherence to the terms of the SOP framed by the Ministry will help filter, and eventually discourage, frivolous complaints at the threshold, thereby enabling the police establishment to better focus its resources. It is pertinent that the statutes (which have been accused of being hastily enacted) are suitably amended in the near future to provide for suitable consequences in the event police officials default in conducting the preliminary inquiry within the prescribed timelines.
Historical (and more recent experiences) have resulted in a continuing mistrust of the police establishment by minorities and rightfully so. The onus is now on the state and the police to do everything in their capability to ensure that justice is not only done but is also seen to be done.
Abhay Shetty is a practising advocate in Bengaluru. He is currently an Associate at AZB & Partners with their Dispute Resolution practice.
Views expressed are the author’s own.