Supreme Court Ruling on FIRs: A New Era

“Ae khoon ke pyase, baat suno…”

When Rajya Sabha MP Imran Pratapgarhi posted these poetic lines on Instagram—lines echoing dissent and anguish—the Gujarat police responded by registering an FIR against him, citing provisions under the Indian Penal Code. But what followed wasn’t just a legal tussle over a social media post. It sparked a profound judicial reflection on how our criminal justice system must evolve in the age of voices and verses.

The Supreme Court of India recently delivered a landmark judgment that not only quashed the FIR but also took the opportunity to dissect the core procedural shifts introduced by the newly minted Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—India’s replacement for the long-standing Code of Criminal Procedure, 1973 (CrPC).

The Old Order: CrPC and FIRs Without Pause

For decades, the rule was clear. Under Section 154 of the CrPC, if you walked into a police station and reported a cognizable offence, the police had no choice—they had to register an FIR. No second-guessing. No inquiry. Even if the complaint sounded outrageous, if it disclosed a cognizable offence, it had to be recorded.

This was reaffirmed in the famous Lalita Kumari case, where the Supreme Court clarified that a preliminary inquiry was not permissible unless the information failed to disclose a clear cognizable offence.

And while that ensured accountability and swift action, it also left space for frivolous or politically motivated complaints to enter the criminal justice pipeline, sometimes chilling free speech and honest dissent in the process.

Enter BNSS: A Law That Hears Before It Strikes

The BNSS seeks to address this imbalance, and in doing so, makes a “significant departure” from its predecessor.

In the recent judgment, the Supreme Court—through a bench comprising Justice Abhay Oka and Justice Ujjal Bhuyan—zeroed in on Section 173 of the BNSS, the counterpart of Section 154 CrPC. At first glance, the two look nearly identical. But the twist lies in sub-section (3) of the new provision.

Under Section 173(3) of BNSS, when an officer receives information about a cognizable offence punishable by 3 to less than 7 years of imprisonment, they can pause, seek permission from a superior officer, and conduct a preliminary inquiry—just to see whether there’s actually a prima facie case.

In other words, before the ink hits the FIR register, the officer has a window to filter out the noise from real offence.

Why This Matters: A Poet’s Case in Point

In Pratapgarhi’s case, the poem’s words were powerful, perhaps unsettling to some. But the Supreme Court emphasized that freedom of speech, especially political and poetic expression, is constitutionally protected.

Registering an FIR over such expression, without the due caution BNSS now allows, could result in misuse of process. And that’s precisely what the new law aims to prevent.

The Court explained: Just because words are spoken or written, doesn’t mean they amount to a criminal offence. A police officer must first read, understand, and apply legal reasoning. That act—of merely interpreting content—isn’t a “preliminary inquiry” barred under Section 173(1), the Court clarified. But under Section 173(3), if the offence falls within that 3-7 year range, an actual preliminary inquiry can and should be conducted before registering an FIR.

A Legal Tightrope: Speed vs. Scrutiny

The judiciary acknowledged the tightrope walk here. Too much discretion, and justice may be delayed or denied. Too little, and we risk weaponizing criminal law against dissenters, journalists, poets, and activists.

With Section 173(3), BNSS introduces a calibrated discretion. Not a license to avoid registering FIRs, but a tool to screen allegations with lower gravity—provided the officer gets a green light from a senior.

It’s a subtle but powerful change. One that says: “Let the law listen before it acts.”

A New Chapter in Criminal Justice

This judgment is not just about a poem or a politician. It’s about how the law treats the first whisper of an allegation. It’s about building a system that is as sensitive to constitutional freedoms as it is to criminal violations.

So as BNSS begins to shape the new face of procedural law in India, the message from the top court is clear: In a democracy, FIRs are not just legal documents—they are instruments of power. And power must be exercised with reason, not reflex.

Adv. Jayendra Dubey
advdubeyjayendra@gmail.com
Available At:
Chamber Number 222/6, District Court Compound, Surajpur, Greater Noida, Gautam Buddha Nagar 201306
Also At: IJLS & Partners, P3-362, Paramount Golfmart, Surajpur, Greater Noida, Gautam Buddha Nagar 201306