The Preliminary Enquiry under the | BNSS 2023

The Preliminary Enquiry under the BNSS, 2023: Section 173(3), the Band of Offences, the Rank Requirement, the Fourteen-Day Limit and What Such an Enquiry May Ascertain

The rule is that registration of an FIR is mandatory where the information discloses a cognizable offence. The officer has no discretion to weigh whether the allegation is likely to be true, and no power to enquire before recording it. That has been the settled position for many years.

But the courts recognised a narrow exception: in certain classes of case, where it was not clear on the face of the information whether a cognizable offence was disclosed at all, a preliminary enquiry could be held to ascertain that — and that alone. Section 173(3) takes that judicially created exception, gives it statutory form, and then disciplines it with a defined band of offences, a rank requirement and a deadline.

1. The Provision

Figure 1: Section 173(3)

Section 173(3), BNSS 2023

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; or

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

Element	The requirement	Why it matters
The band of offences	Punishable with three years or more but less than seven	Below three years and at seven or above there is no power to hold one. Registration follows at once where a cognizable offence is disclosed
The permission	Prior permission of an officer not below the rank of Deputy Superintendent of Police	A station officer cannot decide for himself to hold one — which removes the discretion most open to abuse
The consideration	Having regard to the nature and gravity of the offence	The power is not to be exercised mechanically in every case within the band
The time limit	Fourteen days	The Code contained no limit at all, and enquiries were known to continue for months while no FIR existed and the informant had no remedy
The object	To ascertain whether there exists a prima facie case for proceeding	Not to verify the truth of the allegation, nor to assess the credibility of the informant, nor to weigh whether a conviction is likely

2. What Such an Enquiry May and May Not Do

Figure 2: The limits

📖 State of Telangana v. Sri Managipet @ Managipet Sarveshwar Reddy, (2019) 19 SCC 87

Facts: A first information report was registered in a case of alleged possession of assets disproportionate to known sources of income, and it was contended that the registration was bad because no preliminary enquiry had been held beforehand, such an enquiry being said to be mandatory in cases of that description.

Held: The Supreme Court held that a preliminary enquiry is not mandatory even in the classes of case in which it is permissible, and that the settled position does not make it a condition precedent to registration. The Court held that where the information already discloses the commission of a cognizable offence, the officer is bound to register and a preliminary enquiry would be superfluous; the enquiry is an option available where it is not clear from the information itself whether a cognizable offence is made out. It held that the object of such an enquiry is only to ascertain whether the information reveals a cognizable offence, and not to verify the veracity or otherwise of the information received — that being the function of the investigation which follows. The Court declined to quash the proceedings, holding that the absence of a preliminary enquiry, where the material already disclosed an offence, was no ground of complaint for the accused.

Ratio: A preliminary enquiry is not mandatory and is not a condition precedent to registration. Where the information already discloses a cognizable offence the officer must register; the enquiry is an option only where it is unclear whether an offence is made out.

📖 Charansingh v. State of Maharashtra, (2021) 5 SCC 469

Facts: During an enquiry conducted before the registration of a first information report in a case of alleged disproportionate assets, the person concerned was called by notice and asked to furnish information about his assets. He challenged the notice as an infringement of his right against self-incrimination and as being without authority.

Held: The Supreme Court held that an enquiry conducted before the registration of an FIR is not an investigation, and that a person called during such an enquiry is not an accused: Article 20(3) is not attracted, because that protection is available only to a person against whom a formal accusation has been made. The Court held that the purpose of such an enquiry is only to ascertain whether a cognizable offence is disclosed, that the authority may call for information and documents for that limited purpose, and that doing so does not amount to compelling a person to be a witness against himself. But the Court emphasised the limits: the enquiry is not an investigation, it confers no power of search, seizure or arrest, and it must not be converted into an investigation by another name. It held that an enquiry conducted within those limits is lawful, and declined to quash the notice.

Ratio: An enquiry before registration is not an investigation and the person called is not an accused, so Article 20(3) is not attracted. But it confers no power of search, seizure or arrest, and must not be converted into an investigation by another name.

It may	It may not
Ascertain whether the information discloses a cognizable offence at all	Verify the truth of the allegation, or decide whether the informant is to be believed
Examine whether the allegation, taken as true, amounts to an offence in law	Assess whether a conviction is likely, or weigh the sufficiency of the evidence
Call for and examine records and documents bearing on that question	Be used to delay registration where a cognizable offence is plainly disclosed
Summon and question a person, Article 20(3) not being attracted where no formal accusation has been made	Extend beyond fourteen days, or be held without the prior permission of an officer not below the rank of Deputy Superintendent
Be held where registration would expose a person to a prosecution the material cannot support	Be held at all where the offence falls outside the statutory band; nor exercise any power of search, seizure or arrest

⚠ Three points that follow

A preliminary enquiry is not an investigation. It confers no power of search, seizure or arrest, and the powers of investigation arise only on registration. An officer who searches or arrests during a preliminary enquiry has acted without authority.

Where it concludes that no cognizable offence is made out, the informant must be told. A copy of the closure entry should be supplied to him forthwith, with reasons in brief, so that he may pursue the remedies the Sanhita gives him under sections 173(4) and 175(3).

And the fourteen-day limit is the discipline that makes the power tolerable. An enquiry which has not concluded within that period cannot be used to keep the matter in suspense: if a cognizable offence is disclosed, the officer must register; if it is not, he must close and inform the informant.

3. Key Takeaways

The position stated shortly

1. Registration is mandatory where the information discloses a cognizable offence, and no preliminary enquiry is permissible in that situation.

2. Section 173(3) takes the judicially recognised exception, gives it statutory form, and disciplines it.

3. It is available only where the offence is punishable with three years or more but less than seven.

4. It requires the prior permission of an officer not below the rank of Deputy Superintendent of Police — a station officer cannot decide for himself.

5. It must be completed within fourteen days. The Code contained no limit at all.

6. Its object is only to ascertain whether a prima facie case exists — whether the information discloses a cognizable offence.

7. It is not mandatory even where permissible, and is not a condition precedent to registration: Managipet.

8. It is not an investigation: the person called is not an accused, Article 20(3) is not attracted, and it confers no power of search, seizure or arrest: Charansingh.

9. It must not be converted into an investigation by another name, nor used to delay registration where an offence is plainly disclosed.

10. Where it concludes that no cognizable offence is made out, a copy of the closure entry with brief reasons should be supplied to the informant forthwith.

4. Frequently Asked Questions

When may a preliminary enquiry be held?

Only where the offence is punishable with three years or more but less than seven, with the prior permission of an officer not below the rank of Deputy Superintendent of Police, having regard to the nature and gravity of the offence — and it must be completed within fourteen days.

Is a preliminary enquiry mandatory?

No. It is not a condition precedent to registration, and where the information already discloses a cognizable offence the officer is bound to register and an enquiry would be superfluous: State of Telangana v. Managipet.

What may such an enquiry ascertain?

Only whether the information discloses a cognizable offence — whether there exists a prima facie case for proceeding. It is not to verify the truth of the allegation or to assess whether a conviction is likely.

Is a person called during a preliminary enquiry an accused?

No. An enquiry before registration is not an investigation and the person called is not an accused, so Article 20(3) is not attracted — that protection being available only to a person against whom a formal accusation has been made: Charansingh v. State of Maharashtra.

Can the police search or arrest during a preliminary enquiry?

No. A preliminary enquiry is not an investigation and confers no power of search, seizure or arrest. Those powers arise only on registration, and an officer who exercises them during an enquiry acts without authority.

What if the enquiry concludes that no offence is made out?

The informant should be supplied forthwith with a copy of the closure entry, with brief reasons, so that he may pursue his remedies — an application to the Superintendent of Police under section 173(4) or to the Magistrate under section 175(3).

Related Topics

The Electronic FIR and the Zero FIR: Section 173, BNSS
The Zero FIR under the BNSS, 2023
Information to the Police and Powers to Investigate
Forensic Investigation under the BNSS, 2023: Section 176(3)
Cognizable and Non-Cognizable Offences under the BNSS, 2023
Major Changes Introduced by the BNSS, 2023