Source: Supreme Court 

Why in News? 

A bench of Justice Abhay S Oka and Justice Ujjal Bhuyan held that when allegation is of the commission of offence covered by law referred to in Article 19 (2), if Section 173 (3) is applicable, it is always appropriate to conduct a preliminary inquiry to ascertain whether a prima facie case is made out. 

• The Supreme Court held this in the case of Imran Pratapgadhi v. State of Gujarat (2025). 

What was the Background of Imran Pratapgadhi v. State of Gujarat (2025) Case?   

• On 26th January 2025, the Indian Constitution completed 75 years of existence. 
• The case involves a fundamental right under Article 19(1)(a) of the Indian Constitution - the right to freedom of speech and expression. 
• The appellant, a Member of the Rajya Sabha, posted a video clip on social media platform 'X' with a poem recited in the background. 
• The incident occurred after the appellant attended a mass wedding program on 29th December 2024, organized on the birthday of Altaf Ghafarbhai Khafi, a Municipal Councillor of Jamnagar. 
• The 2nd respondent (first informant) filed a First Information Report (FIR) at Jamnagar Police Station against the appellant. 
• The FIR was registered for offences under Sections 196, 197(1), 302, 299, 57, and 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS). 
• The complaint alleges that the poem in the video: 
  • Incites people of one community against another. 
  • Hurts religious and social sentiments of a community. 
  • Creates enmity between two communities at the national level. 
  • Has a detrimental effect on national unity. 
• The text of the poem has been reproduced in paragraph 13 of the impugned judgment (and is quoted in the provided text). 
• The case suggests that despite 75 years of constitutional existence, law enforcement either lacks awareness of or disregards the fundamental right to freedom of speech and expression. 
• The Appellant filed a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) read with Article 226 of the Constitution, seeking to quash the FIR, and subsequently submitted an affidavit stating that the poem was likely authored by either Faiz Ahmed Faiz or Habib Jalib (based on ChatGPT research), asserting that the poem conveyed a message of love and non-violence. 
• The High Court (learned Single Judge) rejected the petition, reasoning that the investigation was at a "very nascent stage" and citing the Supreme Court's decision in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra as grounds for not interfering with the investigation. 

What were the Court’s Observations? 

• The Court first of all discussed the law on preliminary investigation before registration of FIR. 
• The Court observed that as per Section 173 (3) of BNSS in the category of cases mentioned a police officer is empowered to conduct preliminary inquiry to ascertain if a prima facie case is made out for proceeding. 
• Under Section 173 (3) of BNSS after holding preliminary inquiry if the officer comes to a conclusion that a prima facie case exists to proceed, he should proceed to investigate the case and register the FIR. 
• Sub-Section (3) of Section 173 of the BNSS confers a discretion on the officer receiving information relating to the commission of a cognizable offence to conduct a preliminary inquiry to ascertain whether a prima facie case exists to proceed. This option is available when the offence alleged is made punishable for 3 years or more but less than 7 years. 
• In the facts of the present case all the offences except the one falling under Section 57 of BNS are punishable by imprisonment for less than 7 years. 
• The Court finally held that in the facts of the present case even without taking recourse to sub-Section (3) of Section 173 of the BNSS, the information furnished to the police officer did not attract the offences punishable under Sections 196, 197, 299 and 302 of the BNS. 
• The Court also observed that in the facts of the present case it is impossible to attribute any mens rea to the appellant. 
• The Court thus, in the facts of the case set aside the order passed by the High Court.

What are the Changes Made in BNSS with respect to Preliminary Inquiry? 

• Section 173 (3) of BNSS provides for preliminary inquiry which is a significant departure from Section 154 of CrPC which does not provide for any such inquiry. 
• Section 173 (3) of BNSS provides the following: 
  • Upon receiving information about a cognizable offence that carries a punishment of three to less than seven years, the officer in charge of the police station must obtain prior permission from an officer not below the rank of Deputy Superintendent of Police before proceeding further. 
  • After obtaining such permission and considering the nature and gravity of the offence, the officer in charge has two options available. 
  • The first option is to conduct a preliminary inquiry within fourteen days to determine if a prima facie case exists that warrants further action. 
  • The second option is to directly proceed with a full investigation if a prima facie case already exists. 
• Under CrPC the scope of preliminary inquiry is as follows: 
  • As held in the case of Lalita Kumari v. State of Uttar Pradesh (2014) only a limited preliminary inquiry is permissible to ascertain whether information received discloses a cognizable offence. 
  • A preliminary inquiry can be made under CrPC only if the information does not disclose the commission of a cognizable offence but indicates the necessity for an inquiry. 
• Under BNSS preliminary inquiry is provided under Section 173 (3) of BNSS: 
  • Section 173 (3) of BNSS is an exception to Section 173 (1) of BNSS. 
  • 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. 
  • 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.