Author(s): Ananya Samyal
Paper Details: Volume 3, Issue 3
Citation: IJLSSS 3(3) 18
Page No: 265 – 270
I. INTRODUCTION
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces the Code of Criminal Procedure, 1973 (CrPC), introduces several new and amended provisions. While some of these changes are seen as progressive steps toward societal advancement, others have sparked controversy and debate. Naturally, the Act has received both praise and criticism for its reforms.
A particularly contentious provision is Section 173, which governs the filing of First Information Reports (FIRs) in cognizable cases. This provision, previously encapsulated under Section 154[1] of the CrPC, has been modified under BNSS with several additions. This paper aims to analyze the provision by comparing it with its previous version, examining relevant case laws and discussing critical arguments. The central question under consideration is whether Section 173 genuinely ensures a speedy and efficient trial or if it represents yet another failure of the executive authorities, turning a well-intentioned law into a missed opportunity.
II. RESEARCH QUESTION
Does Section 173 of the BNSS ensure speedy justice, or does it introduce barriers to efficient legal proceedings? By examining Section 173(1) and Section 173(3), this paper seeks to determine whether the changes align with the objectives of a transparent and swift criminal justice system.
III. ANALYSIS
A. SECTION 173(1): EXPANSION OF FIR JURISDICTION
Section 173(1)[2] mandates that any information regarding the commission of a cognizable offence, regardless of the location, must be reported either orally or through electronic communication to the officer in charge of a police station.
Although the Bharatiya Nagarik Suraksha Sanhita (BNSS) does not provide a formal definition of a First Information Report (FIR), it accords significant importance to it. In Manoj Kumar Sharma v. State of Chhattisgarh (2016)[3], the Supreme Court emphasized the critical role of a written FIR, highlighting that it serves as the first step in an investigation and is integral to the administration of justice. An FIR is a crucial tool for police officers, enabling them to understand the nature of the crime, identify victims and suspects, and gather other relevant information.
Previously, a person filing an FIR was restricted by the jurisdiction where the offence was committed. To address this issue, the J.S. Verma Committee[4], established in the aftermath of the Nirbhaya Case (2012)[5], recommended the concept of Zero-FIR in its report. This concept allows an FIR for acognizable offence to be registered at any police station, irrespective of territorial jurisdiction.[6]
Building upon this principle, Section 173(1)(ii)[7] of the Bharatiya Nagarik Suraksha Sanhita (BNSS) further expands the law by permitting the registration of an FIR through electronic communication (E-FIR), provided that the complainant signs it within three days, irrespective of the police station’s jurisdiction. This provision was not previously present in Section 154 of CrPC. So this was a progressive move on part of our legislators. And while this provision offers significant relief to marginalized communities by expediting investigations and reducing the need for victims to repeatedly relive traumatic experiences, it also presents certain challenges.
For instance, the Parliamentary Standing Committee has emphasized the need for such FIRs to be registered exclusively through recognized portals to prevent the misuse of the system, such as the filing of false or frivolous complaints that could waste law enforcement resources.
B. SECTION 173(3): PRELIMINARY INQUIRY AND ITS IMPLICATIONS
The most contentious aspect of this provision lies in Clause (3)[8], which grants the officer in charge the authority to conduct apreliminary inquiry within fourteen days before registering an FIR to establish a prima facie case.[9]
In Lalita Kumari v. State of U.P. & Ors. (2014)[10], the petitioner’s father filed a writ of habeas corpus seeking the protection of his minor daughter, who had been kidnapped. Despite submitting a written report to the officer in charge, the authorities failed to take action, and the FIR was registered only after the intervention of the Superintendent of Police.
Therefore, central issue in the case was whether a police officer is duty-bound to register an FIR upon receiving information regarding the commission of a cognizable offence under Section 154 of the CrPC, or whether the officer has the discretion to conduct a preliminary inquiry to verify the authenticity of the information before registration.[11] The Supreme Court held that Section 154(1) of the CrPC mandates the immediate registration of aFIR if the information discloses a cognizable offence. If the information is ambiguous, a preliminary inquiry may be conducted only to determine whether a cognizable offence has been committed, and such an inquiry must be concluded within seven days. Furthermore, all information—whether leading to an FIR or an inquiry—must be meticulously recorded in the General Diary, and officers failing to register a valid FIR should face disciplinary action.[12]
Thus, the Lalita Kumari case established a landmark precedent, affirming several guidelines that if an offence is cognizable, the registration of an FIR is mandatory, and a preliminary inquiry is not permitted in such cases.[13]
The new law, which was intended to be a pillar of civil rights, is now being manipulated to erode individual liberties. Under Section 173(3), a police officer is granted the discretion to delay the registration of an FIR in cognizable cases for up to fourteen days while conducting a preliminary inquiry to establish prima facie evidence. However, as discussed earlier, this provision directly contradicts the Supreme Court’s ruling in Lalita Kumari, which mandates theimmediate registration of an FIR upon disclosure of a cognizable offence. This discrepancy raises concerns about the legality and potential misuse of this provision.[14]
The legislature’s rationale for introducing this provision is to reduce the number of FIRs and prevent frivolous cases from overburdening the police. However, the Criminal Procedure Code (CrPC) already provides safeguards against false complaints, including prosecution for filing fake FIRs. Thus, there are existing mechanisms to filter out frivolous cases, making this new provision not only redundant but also dangerous. Instead of protecting justice, it opens the door for arbitrary police action, where officers could intentionally delay cases or avoid registering complaints altogether.[15]
Historically, the Supreme Court has recognized limited circumstances in which a preliminary inquiry may be warranted—such as in matrimonial disputes, corruption cases, and medical negligence cases—to protect the rights of the accused from wrongful detention based solely on allegations. However, the broad discretionary power now vested in police officers under Section 173(3) allows them to withhold the registration of FIRs in any cognizable offence, which seriously undermines access to justice. The corrupt influence of the wealthy and powerful over law enforcement further exacerbates this issue, as police officials may selectively exercise this discretion, ensuring that cases against influential individuals never see the light of day. This could result in manipulation, fabrication, and suppression of cases, turning the criminal justice system into a tool of oppression rather than protection.
In Pradeep Nirankarnath Sharma v. State of Gujarat (2025)[16], the Supreme Court, citing Lalita Kumari, reaffirmed that police officers have no discretion in registering an FIR when a cognizable offence is disclosed. The judgment clarified that a preliminary inquiry is permissible only in cases where the existence of a cognizable offence is uncertain and requires verification.[17] The ruling further stressed that mandatory FIR registration is essential to uphold transparency and accountability in executive actions. This landmark decision has brought Section 173(3) under scrutiny, as its provisions continue to contradict established judicial precedents.[18]
Section 173(3) could also be seen as violating Article 21 of the Indian Constitution[19], which guarantees the right to a fair trial. By allowing police officers a fourteen-day preliminary inquiry, the provision introduces delays that may hamper evidence collection, enable witness tampering, and weaken the victim’s case. Additionally, granting police excessive discretion in deciding whether an FIR should be registered creates room for bias, corruption, and procedural injustice, contradicting the principles of natural justice and due process upheld by the Supreme Court
IV. CONCLUSION
Rather than ensuring a fair and speedy trial, Section 173(3) provides an opportunity for police officers and influential individuals to manipulate the criminal justice system. By enabling delays in registering FIRs, the provision allows wrongdoers to escape accountability, making it harder for victims to seek justice.
Moreover, this unfettered power granted to the police creates room for inconsistent practices, corruption, and potential delays in investigations, ultimately weakening the rule of law. The provision undermines landmark Supreme Court judgments, which have consistently emphasized the importance of immediate FIR registration in cognizable offences. Additionally, the provision raises concerns under Article 21, as it potentially violates the right to a fair trial by enabling delays, bias, and procedural inefficiencies.
To truly ensure speedy justice, Section 173 must be amended to align with judicial precedents. The fourteen-day window for a preliminary inquiry should be removed or strictly limited to exceptional cases. Additionally, robust oversight mechanisms must be implemented to prevent abuse of discretion by police officers.
The spirit of justice lies not only in creating laws but also in ensuring their fair and impartial execution. Section 173, in its current form, risks undermining the very objective it seeks to achieve—ensuring a swift, transparent, and accessible criminal justice system. Therefore, immediate legislative review and judicial intervention are necessary to prevent the erosion of individual liberties and restore public trust in law enforcement.
[1] The Code of Criminal Procedure 1973, S 154
[2] The Bharatiya Nagarik Suraksha Sanhita 2023
[3] Manoj Kumar Sharma & Ors. v. State of Chhattisgarh & Anr. [2016] Criminal Appeal No. 775 (SC).
[4] Drishti IAS, ‘J.S. Verma Committee on Sexual Harassment at Workplace Act’ (Drishti IAS, 11 March 2024) https://www.drishtiias.com/daily-updates/daily-news-analysis/j-s-verma-committee-on-sexual-harassment-at-workplace-act accessed 21 March 2025.
[5] Mukesh & Anr v. State for NCT of Delhi & Ors. [2017] 6 SCC 1 (SC).
[6] Pink Legal, ‘Zero FIR’ (Pink Legal, n.d.) https://pinklegal.in/topics/police/zero-fir.html#:~:text=What%20is%20a%20Zero%20FIR,can%20conduct%20a%20detailed%20investigation. accessed 21 March 2025.
[7] The Bharatiya Nagarik Suraksha Sanhita 2023, S 173(1)(ii)
[8] The Bharatiya Nagarik Suraksha Sanhita 2023, S. 173(3)
[9] https://www.myjudix.com/post/comparative-analysis-between-section-154-crpc-and-section-173-bnss-key-differences
[10] Lalita Kumari v. State of U.P. & Ors. (2014) 2 SCC 1 (SC).
[11] Dhyeya Law, ‘Lalita Kumari v. Government of Uttar Pradesh’ (Dhyeya Law, n.d.) https://www.dhyeyalaw.in/lalita-kumari-v-government-of-uttar-pradesh accessed 21 March 2025.
[12] Drishti Judiciary, ‘Lalita Kumari v. State of U.P. & Ors. (2014)’ (Drishti Judiciary, n.d.) https://www.drishtijudiciary.com/landmark-judgement/code-of-criminal-procedure/lalita-Kumari-v-state-of-up-&-ors-2014 accessed 21 March 2025.
[13] Shillong Police, ‘Mandatory Registration of FIR: Supreme Court Guidelines’ (Shillong Police, n.d.) https://shillongpolice.gov.in/Supereme_Court_Rulings_Judgements/02_Mandatory_Registration_FIR_Supreme_Court_Guidelines.pdf accessed 21 March 2025.
[14]Shashwat Kaushik, ‘FIR Registration under Bharatiya Nagarik Suraksha Sahita’ (iPleaders, 22 August 2024) https://blog.ipleaders.in/fir-registration-under-bharatiya-nagarik-suraksha-sahita/#Introduction accessed 21 March 2025.
[15] Aditya Arun and Anushka Singh, ‘Introduction of BNSS: A Step Forward or Backward’ (LiveLaw, 12 July 2024) https://www.livelaw.in/lawschool/articles/introduction-bnss-step-forward-backward-263140 accessed 21 March 2025.
[16] Pradeep Nirankarnath Sharma v. State of Gujarat & Ors. [2025] 6 SCC 350 (SC).
[17] Gursimran Kaur Bakshi, ‘Lalita Kumari Judgment Doesn’t Create Absolute Rule That Preliminary Enquiry Is Necessary in Every Case Before FIR: Supreme Court’ (LiveLaw, 19 March 2024) https://www.livelaw.in/supreme-court/lalita-kumari-judgment-doesnt-create-absolute-rule-that-preliminary-enquiry-is-necessary-in-every-case-before-fir-supreme-court-286704 accessed 21 March 2025.
[18] Law Trend, ‘SC Clarifies Lalita Kumari Judgment on Law on Preliminary Inquiry Before Lodging FIR’ (Law Trend, 18 March 2025) https://lawtrend.in/sc-clarifies-lalita-kumari-judgment-on-law-on-preliminary-inquiry-before-lodging-fir/ accessed 21 March 2025.
[19] The Constitution of India 1950, Article 21