The Supreme Court has held that when an allegation pertains to an offence covered under the restrictions outlined in Article 19(2) of the Constitution, it is appropriate to conduct a preliminary inquiry under Section 173(3) of the Bharatiya Nyaya Sanhita (BNSS) to ascertain whether a prima facie case exists before proceeding against the accused.

The Court made the observation while refusing to entertain a Writ Petition challenging the immunity granted to judges from immediate criminal prosecution, citing the recent controversy involving Justice Yashwant Varma and seeking an FIR against him.

The Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan held, "When an allegation is of the commission of an offence covered by the law referred to in clause (2) of Article 19, if subSection (3) of Section 173 is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out to proceed against the accused."

The Court said, "Sub-Section (3) of Section 173 of the BNSS makes a significant departure from Section 154 of CrPC. It provides that when information relating to the commission of a cognizable offence which is made punishable for 3 years or more but less than 7 years is received by an officer-incharge of a police station, with the prior permission of a superior officer as mentioned therein, the police officer is empowered to conduct a preliminary inquiry to ascertain whether there exists a prima facie case for proceeding in the matter."

Unlike the Lalita Kumari judgment, which restricted preliminary inquiries only to cases where the information did not disclose a cognizable offence, BNSS now permits a police officer, with prior approval of a superior officer, to conduct a preliminary inquiry even when a cognizable offence is disclosed.

"Sub-Section (3) of Section 173 of the BNSS is an exception to sub-Section (1) of Section 173. In the category of cases covered by sub-Section (3), a police officer is empowered to make a preliminary inquiry to ascertain whether a prima facie case is made out for proceeding in the matter even if the information received discloses commission of any cognizable offence," the Bench observed.

It stated, "Under sub-Section (3) of Section 173 of the BNSS, after holding a preliminary inquiry, if the officer comes to a conclusion that a prima facie case exists to proceed, he should immediately register an FIR and proceed to investigate. But, if he is of the view that a prima facie case is not made out to proceed, he should immediately inform the first informant/complainant so that he can avail a remedy under sub-Section (4) of Section 173."

The Court has ruled that police officers must evaluate the content of spoken or written words to determine whether an offence is made out under Section 196 before proceeding with a case. The Court clarified that merely reading or listening to the alleged statements to assess their legality does not amount to a preliminary inquiry, which is otherwise restricted under Section 173(1) of BNS.

The Bench further emphasized that this principle extends to offences under Sections 197, 299, and 302 of BNS, where the police must first ascertain whether the alleged words or expressions meet the legal threshold for a cognizable offence. This ruling reinforces procedural safeguards in cases concerning free speech and expression while ensuring a balanced approach to law enforcement.

Cause Title: Imran Pratapgadhi v. State of Gujarat [Neutral Citation No. 2025 INSC 410]

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Justice Abhay S.OkaJustice Ujjal Bhuyan

Sukriti Mishra

    Sukriti Mishra was a Legal Correspondent at Verdictum. She covered the Supreme Court. She completed her graduation with BA. LL.B (Hons.) from The ICFAI University, Dehradun. Sukriti started covering courts in March 2022. She had previously worked with another legal news portal, where she covered the Delhi High Court and Trial Courts.