INTRODUCTION
Justice Louis D Brandeis famously cautioned that the greatest dangers to liberty lurk in the insidious encroachment by men of zeal who are well-meaning but without understanding. In the Indian criminal justice system, this encroachment often occurs at the very first point of contact between the citizen and the state: the registration of a First Information Report (FIR). Historically, the law has mandated that every cognizable offence disclosed to the police must be recorded. However, for the average complainant, the police station remains the first and often most formidable barrier to justice.[1]India’s criminal procedure saw a major shift with the introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS) in 2023, which replaced the colonial-era Code of Criminal Procedure (CrPC) on July 1, 2024. While the BNSS aims to be citizen-centric, it introduces statutory frameworks for preliminary inquiries that raise a pivotal question: has mandatory FIR registration remained a rule, or has it become an exception in practice?
THE LEGAL POSITION UNDER BNSS
Under Section 173 of the BNSS, the core principle remains that information relating to the commission of a cognizable offence “shall” be reduced to writing.[2] A significant improvement is the statutory recognition of Zero FIR, which allows a victim to report a crime at any police station regardless of territorial jurisdiction, thereby addressing delays caused by jurisdictional disputes.[3]
Furthermore, the BNSS formalizes e-FIRs, enabling citizens to submit information through electronic communication, subject to signing the record within three days.
THE LALITA KUMARI PRINCIPLE
To understand the current friction, one must revisit the benchmark established by the Constitution Bench of the Supreme Court in Lalita Kumari v. Government of Uttar Pradesh. The Supreme Court addressed this by holding that if information ex facie discloses a cognizable offence, the police have no discretion and must register the FIR. This interpretation was grounded in Articles 14 and 21 of the Constitution, ensuring accessibility of the process regardless of social standing.[4]
The Court recognized a narrow safety valve in the form of a preliminary inquiry, permitted only in limited categories such as matrimonial disputes, commercial offences, medical negligence, corruption cases, and cases involving abnormal delay.
EXPANSION OF PRELIMINARY INQUIRY
The primary point of contention in the new regime is Section 173(3) of the BNSS, which introduces a punishment-based classification for inquiries that many argue dilutes the Lalita Kumari mandate. For cognizable offences punishable with imprisonment of three to seven years, a police officer may, with prior permission from an officer not below the rank of Deputy Superintendent of Police (DySP), conduct a preliminary inquiry. The stated purpose is to determine if a prima facie case exists for proceeding in the matter.[5]
The BNSS extends the inquiry timeline to 14 days, doubling the previous judicial guideline. This shift subtly transforms the police from a recording authority into a gatekeeping one. By allowing the police to assess whether a case is “worthy” of registration, the BNSS risks shifting the threshold from disclosure to evaluation. The danger lies not in the existence of inquiry, but in its normalization. By granting the police power to determine if a case is worthy of investigation before it is recorded, the law effectively issues a “temporary black gown” to men in khaki. This shift marks a subtle but significant departure from the immediacy principle that formed the core of Lalita Kumari.[6]
THE CASE OF IMRAN PRATAPGARHI
The courts have already begun to grapple with these new tensions, most notably in the 2025 judgment of Imran Pratapgarhi v State of Gujarat. In this case, an FIR was registered against a poet for a shared poem without any prior inquiry or supervisory permission. The Supreme Court quashed the FIR, noting it was registered in “mechanical haste” without following the safeguards of the new statute. [7]The Court clarified that for offences affecting free speech under Article 19(1)(a), a preliminary inquiry is invariably appropriate to prevent political or administrative harassment.[8]
However, the Court also emphasized that Section 173(3) is an exception to the general rule of immediate registration. It noted that the 14-day limit is a mandatory outer limit and cannot be used for indefinite bureaucratic stalling.
PRACTICE ON THE GROUND
Despite the clarity of the legal mandate, the reality on the ground continues to reflect a persistent culture of burking, that is, the active suppression or underreporting of crime. Instances of complainants being turned away from police stations recur across jurisdictions, revealing a continuing gap between what the law requires and how it is implemented. In many cases, the police resort to informal verification or so-called “counselling” mechanisms, often pressuring victims into private settlements rather than formally registering an FIR. This resistance is particularly pronounced in rural areas, where socially and economically vulnerable individuals face heightened barriers.
For a significant section of the population, the law exists more in statutory texts than in lived reality. The burden, therefore, shifts to the complainant, who is frequently compelled to approach a Magistrate under Section 173(4) of the BNSS merely to secure recognition of a basic legal right, making access to justice procedural rather than immediate. [9]
THE ACCOUNTABILITY GAP
The core difficulty lies in the fact that while the BNSS retains the language of mandatory registration, it does little to address the institutional reluctance that continues to undermine it, thereby risking the reintroduction of the arbitrariness that Lalita Kumari sought to eliminate.
A significant concern is the absence of clear statutory standards. Expressions such as “nature and gravity” and “prima facie case” remain undefined, leaving room for subjective interpretation and delay in registration. This is further compounded by the requirement of prior approval from a Deputy Superintendent of Police, which, in the absence of a strict time-bound framework, may lead to administrative inaction rather than meaningful oversight.
Equally important is the question of procedural fairness. The Supreme Court has consistently emphasized that criminal procedure must safeguard both the rights of the accused and the complainant. In Satender Kumar Antil v Central Bureau of Investigation, the Court reiterated that personal liberty cannot be sacrificed at the altar of procedural convenience, a concern that becomes particularly relevant at the stage of FIR registration, where delay itself can defeat the purpose of the law.[10]
Taken together, the discretionary fourteen-day window under the BNSS risks expanding what was intended to be a narrow exception into a broader regime of controlled access to justice.[11].
WAY FORWARD
Bridging the gap between legal mandate and actual practice requires focused reforms. The process of granting approval for preliminary inquiry must be time-bound to prevent delay, and greater transparency at the threshold stage is essential. A system of digital acknowledgement upon receipt of information could improve accountability.
The absence of consequences for wrongful refusal to register an FIR continues to weaken the system, making clear accountability measures necessary. Extending basic legal assistance at the initial stage could also help prevent coercive or informal practices that discourage formal registration.
CONCLUSION
Mandatory FIR registration under the BNSS continues to stand as a rule in law, yet for many citizens it still operates as an exception in practice. Although the new Sanhita introduces progressive mechanisms such as e-FIR and Zero FIR, the expanded scope of preliminary inquiry risks reviving a discretionary framework in which access to justice depends more on administrative will than on legal entitlement.
It requires a shift in institutional practice toward rights-based enforcement. If the FIR is indeed the gateway to justice, the BNSS must ensure that this gateway remains open, governed by law and guided by rights, rather than narrowed by discretion.
Author(s) Name: Shraddha Dongare (MNLU , Nagpur)
References:
[1] Shivam Jadaun, ‘BALANCING ACT: THE DISCREPANCY BETWEEN SECTION 173(3) BNSS AND THE SUPREME COURT RULING IN LALITA KUMARI V GOVERNMENT OF UTTAR PRADESH’ (NUJS SACJ, 25 December 2024) <https://www.nujssacj.com/post/balancing-act-the-discrepancy-between-section-173-3-bnss-and-thesupreme-court-ruling-in-lalita-kum> accessed 24 May 2026
[2] Bharatiya Nagarik Suraksha Sanhita 2023, s 173(1)
[3] Shivananda Sahu, ‘Justice on Time: A Legal Appraisal of Time-Bound Investigations, Zero FIR and e-FIR under BNSS, 2023’ (2025) 7(5) International Journal For Multidisciplinary Research 1, 4 <https://www.ijfmr.com/research-paper.php?id=58738> accessed 24 May 2026
[4] Lalita Kumari v Government of Uttar Pradesh and Ors (2014) 2 SCC 1 [120]
[5] Bharatiya Nagarik Suraksha Sanhita 2023, s 173(3)
[6] Sharnam Agarwal and Yashika Chouksey, ‘From Lalita Kumari to Section 173(3) BNSS: FIR Registration, Police Discretion, and the Constitution after the BNSS’ (Law School Policy Review, 22 March 2026) <https://lawschoolpolicyreview.com/2026/03/22/from-lalita-kumari-to-section-1733-bnss-fir-registration-police-discretion-and-the-constitution-after-the-bnss/> accessed 20 May 2026
[7] Imran Pratapgarhi v State of Gujarat and Anr (2025) INSC 410 [34]
[8] Richa Kochar and Vijayata Uikey, ‘Imran Pratapgarhi v State of Gujarat (2025 INSC 410): Re-defining Preliminary Enquiry under Section 173 BNSS’ (2026) 9(1) International Journal of Law Management & Humanities 1421, 1425 <https://ijlmh.com/paper/imran-pratapgarhi-v-state-of-gujarat-2025-insc-410-re-defining-preliminary-enquiry-under-section-173-bnss/> accessed 10 May 2026
[9] Vaibhav Tripathi Saxam, ‘FIR: A Right or a Request?’ (Sharma and Sharma Law Chambers) <https://saslawchambers.com/fir-a-right-or-a-request/> accessed 10 May 2026
[10] Satender Kumar Antil v Central Bureau of Investigation and Anr (2022) 10 SCC 51 [67]
[11] Chandra Mauli Mishra, ‘CRITICAL ANALYSIS OF SECTION 173 OF BNSS’ (2025) 3(3) International Journal of Legal Affairs and Exploration 569, 574 <https://ijlae.com/wp-content/uploads/2025/06/CRITICAL-ANALYSIS-OF-SECTION-173-OF-BNSS-By-Chandra-Mauli-Mishra.pdf> accessed 10 May 2026