Relevancy of Supreme Court Constitutional Bench Judgment in case of Lalita Kumari vs State of U.P. in context of section 173 BNSS.

Supreme Court in case of Lalita Kumari Vs State of U. P. Held that-

i. Registration of FIR is mandatory under Section 154 of the Cr.P.C., if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

ii. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

iii. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

iv. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

v. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a. Matrimonial disputes/ family disputes

b. Commercial offences

c. Medical negligence cases

d. Corruption cases

e. Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

vii. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

viii. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.

After repeal of Criminal Procedure Code 1973 and commencement of Bhartiya Nagrik Surkasha Sanhita 2023, the judicial pronouncement which were made with respect to BNSS, BNS, or BSA will remain applicable for their corresponding sections in BNSS, BNS and BSA if both the provisions i.e. old and corresponding are same. If there is contradiction in old and corresponding section then judicial pronouncement will not be applicable from the date on which new provision come to force.

The judgment was related to the provisions of section 154 Cr.P.C. and while addressing the core issue Hon’ble Supreme Court held that “if information discloses commission of cognizable offence police has no option other than to register FIR”

Section 173 (3) BNSS provides that “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

Above provision permit the PE in case of cognizable offences which are punishable with imprisonment for three years or more but less than seven years with prior permission of  police office not below the rank of Dy.S.P.

PE under this section can be conducted only in cognizable offence punishable with three years or more but less than seven years. The provision is having effect of nullifying the above judgment to the extent that “ if information discloses commission of cognizable offence police has no option other than to register FIR”. Now police has option that in cases of cognizable offence where punishment is three years or more but less than seven years the officer-in-charge of police need not to register FIR rather may with the prior permission of police officer not below the rank of Dy.S.P may conduct a PE.

What if the offence is cognizable but punishable with less than three years or more than seven years imprisonment . Permission is not required in these cases for conducting PE because as per above provision permission is required only if information discloses commission of cognizable offence punishable with three years or more but less than seven years imprisonment. Further if officer-in-charge wants to register the FIR he may do so, as there is no prohibition imposed by section 173(3) BNSS. It no where challenges the power of officer-in-charge to register FIR and investigate under section 175. Permission is only required if PE is to be initiated.

Scope of PE under section 173 (3) –

The scope of PE under section 173 (3) BNSS is somewhat different from the scope of PE as laid down by the Supreme Court in Lalita Kumari vs State of U.P where apex court held that “object of PE is to not to test the veracity of the case but to ascertain the commission of cognizable offence ‘ If PE discloses commission of cognizable offence, FIR is to be registered”.

Section 173 (3) BNSS will come to play only if information discloses commission of cognizable offence. The object of the PE under this provision is not to ascertain the commission of cognizable offence but to ascertain a prima facie case to proceed in the matter.

Prima facie  is a Lattin word which means  "at first sight" or "based on first impression".  The literal translation would be "at first face" or "at first appearance", In modern English, a common translation would be "on the face of it". The term prima facie is used in civil and criminal law  to suggest that upon initial examination, sufficient corroborating evidence appears to exist to support a case. In common law jurisdictions, a reference to prima facie evidence denotes evidence that, unless rebutted, would be sufficient to prove a particular proposition or fact.

Therefore the object of the PE in this section is to find out that whether there is evidence to support the case, if yes the FIR is to be registered and case is to be investigated.

However the above proposition seems to be contrary to those cases where punishment is less than three years or more than seven years where the police will not go to ascertain the prima facie case.

The position of the law may be that except in cases to which provisions of section 173 (3) are applicable, police has no option other than to register FIR if information discloses commission of cognizable offence.

If the case is other than the one to which 173(3) applies, PE can be done to ascertain the commission of cognizable offence .

The object of PE is different in the cases not covered by section 173(3)

The directions of the Supreme Court in Lalita Kumari will be applicable for all the cases which are not covered by the provision of section 173(3) BNSS.