Update: 29 March 2025

In an effort to reduce pointless formal complaints against speeches, writings, and creative endeavors, the Court of Appeals on Friday ordered that if the claimed offenses carry a sentence of three to seven years in jail, a preliminary investigation must be carried out prior to filing the FIR. After citing Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the Court made this ruling.

According to Section 173(3), if a Deputy Superintendent of Police (DSP) has given their previous consent, the authorities may carry out an initial inquiry under 14 days to set up a strong prima facie case for offenses carrying a sentence of three to seven years in jail. According to Article 19(2), the Court pointed out that some offenses pertaining to speech and expression are recognized as acceptable limits. Before filing a formal complaint, police officers must perform an initial investigation if the evidence indicates a claim of committing an offense that carries a sentence of three to seven years. In order to protect the basic right to free speech and expression protected by Article 19(1)(a) of the Constitution, the Court embraced this conclusion.

A court made up of Justices Abhay S. Oka and Ujjal Bhuyan noted: Consequently, if subsection (3) of Section 173 applies to an accusation of the carrying out of an offense addressed by the law mentioned in clause (2) of Article 19, it is always suitable to carry out an initial examination to determine whether a prima facie case is established to get started against the person being charged. This will assure the preservation of the fundamental rights safeguarded by subclause (a) of paragraph (1) of Article 19. Consequently, in these situations, the higher police officer mentioned in subsection (3) of Section 173 must typically authorize the inspector to carry out an initial investigation.

The Gujarat Police filed a formal complaint in opposition to Congress Rajya Sabha MP Imran Pratapgarhi, but the court dismissed it because the Instagram post included a clip of video with the poem “Ae khoon ke pyase baat suno” in the frame.

The Court further said that prior to enforcing the criminal law in response to a claim of an offense within Section 196 of the Bharatiya Nyaya Sanhita (BNS), pertaining to statements that incite animosity amongst groups, the police official must determine the impact of the remarks.

“After reading or hearing written words, the officer in charge who receives the details must determine if an offense within Section 196 has been proven. To ascertain whether the information presented supports being convicted of a crime that is punishable by law, one must either read or hear what has been written. The same is true for offenses covered by BNS Sections 197, 299, and 302. Consequently, the law enforcement official in charge of the police station must take into account the implications of written or spoken words in order to determine if the data they receive constitutes a crime. The investigating officer’s action will not be considered an initial examination, which is prohibited by Section 173 sub-Section (1).”

If the details that are acquired reveal a cognizable offense, Section 173(1) of the BNS requires the filing of a formal complaint. The court pointed out that the clause is quite equivalent to Section 154 of the CrPC, that was in effect prior to the BNS’s establishment. When the police get accurate details regarding a crime that can be prosecuted, they are required by this provision to file a formal complaint. The Court did, however, highlight the differences made possible by BNS Section 173(3). In contrast to the CrPC, the BNS contains a particular clause that permits, under certain conditions, an initial assessment prior to filing a formal complaint.

The Court further clarified the difference in the evaluation mandated by Section 154 of the CrPC and an initial investigation according to Section 173(3). It made reference to the rules established in the 2014 case of Lalita Kumari v. Government of U.P., which states that a preliminary investigation is only allowed when the details that are obtained do not reveal a crime that can be prosecuted but rather indicate that more research is necessary to ascertain the nature of the offense. But under the BNS, the investigation under Section 173(3) goes farther, enabling law enforcement to determine if there is enough justification to move on with filing a formal complaint, the Court stated.