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
This week has been incredibly rewarding in my legal practice, with two standout achievements that highlight the diverse and challenging nature of our work.
First, we successfully secured bail for a client in a POCSO case. These cases are notoriously complex and sensitive, requiring a deep understanding of the law and a strategic approach to ensure justice while upholding the rights of the accused. The outcome was a testament to our dedication, meticulous preparation, and unwavering commitment to our clients.
Second, we achieved an exceptional settlement for a client in a consumer dispute. Navigating the intricacies of consumer law and negotiating terms that are fair and favorable requires both legal acumen and a nuanced understanding of the client’s needs and the market dynamics. This settlement not only provided our client with the desired outcome but also reinforced our belief in the power of effective legal representation.
These victories are not just professional milestones but also personal affirmations of why we chose this field. Every case we handle, every client we represent, and every challenge we overcome strengthens our resolve to deliver justice and provide top-notch legal services.
Grateful for the trust our clients place in us and proud of the dedicated team that makes these successes possible. Here’s to many more victories and continued excellence in our practice.
In the evolving landscape of Indian legal procedures, the introduction of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, marks a significant milestone. This new legislation brings forth modernized practices aimed at enhancing the efficiency and accountability of the criminal justice system. A critical comparison between Section 156 of the Code of Criminal Procedure (CrPC), 1973, and Section 175 of BNSS, 2023, sheds light on the progressive changes introduced by the latter.
Section 156 of CrPC, 1973: Empowering the Police
Provision Overview:
Subsection (1): Empowers any officer in charge of a police station to investigate any cognizable case without needing prior approval from a Magistrate.
Subsection (2): Allows police officers to investigate offenses even if they were committed outside their territorial jurisdiction.
Subsection (3): Enables a Magistrate to order an investigation into any case, ensuring oversight in instances where the police may not act.
Key Takeaways:
Scope and Authority: Section 156 grants wide-ranging powers to police officers, facilitating prompt action in cognizable cases without the need for immediate judicial oversight.
Jurisdictional Flexibility: Officers can investigate offenses outside their jurisdiction, ensuring that legal boundaries do not hinder the pursuit of justice.
Magistrate’s Oversight: The provision for Magistrate-directed investigations acts as a safeguard against police inaction, allowing citizens to seek judicial intervention.
Section 175 of BNSS, 2023: Modernizing Investigations
Provision Overview:
Digitalization and Modernization: Advocates for the use of digital tools and modern investigative techniques to improve efficiency and accuracy.
Stricter Timelines: Introduces deadlines for completing investigations to ensure timely justice.
Enhanced Accountability: Implements stronger oversight mechanisms to reduce instances of police misconduct or negligence.
Key Takeaways:
Technological Integration: By incorporating digital tools, BNSS aims to streamline investigations, ensuring better evidence preservation and quicker case resolutions.
Timelines: Stricter timelines prevent unnecessary delays, promoting a more efficient justice system. However, it is essential to monitor the practicality of these deadlines to avoid rushed or incomplete investigations.
Accountability: Enhanced oversight mechanisms, such as regular audits and penalties for non-compliance, aim to ensure that police officers adhere to ethical standards and procedural requirements.
Comparative Analysis
Empowerment vs. Oversight:
CrPC Section 156: Primarily focuses on empowering police officers with broad investigative powers.
BNSS Section 175: Balances empowerment with enhanced oversight and accountability, preventing misuse of power and ensuring thorough investigations.
Technological Integration:
CrPC Section 156: Traditional in its approach, with less emphasis on modern tools.
BNSS Section 175: Embraces digital tools and modern techniques, representing a progressive shift towards a more efficient investigation process.
Timelines and Efficiency:
CrPC Section 156: Does not specify strict timelines for investigations.
BNSS Section 175: Enforces strict timelines to expedite investigations, though the implementation and adherence to these timelines need careful assessment.
Jurisdictional Flexibility:
Both sections offer flexibility in jurisdiction, but BNSS includes more structured procedures to maintain uniformity.
Conclusion
Section 156 of CrPC has been a cornerstone in empowering police officers to investigate cognizable offenses swiftly. However, its lack of emphasis on modern investigative tools and accountability has occasionally led to inefficiencies and misuse of power.
On the other hand, Section 175 of BNSS addresses these gaps by integrating digital tools, imposing stricter timelines, and enhancing oversight mechanisms. These changes aim to make the investigation process more efficient, transparent, and accountable.
The success of BNSS in revolutionizing the investigative process will hinge on its effective implementation and the ability to navigate the practical challenges that may arise.
There was at first no uniform law of criminal procedure for the whole of India. It was the Criminal Procedure Code of 1882 which gave for the first time such a uniform law of procedure. Later supplanted by Code of 1898 and then amended in 1923 and 1955. The Law Commission studied the previous codes and made various suggestion in it’s detailed 41st report. So, the code that you see, read and study now came into force on 1st April, 1974.
While drafting the code, three basic considerations, 1. Fair Trial 2. Avoidance of delay in investigation/trial 3. Fair deal to poorer sections has been kept in mind.
Object & Importance of Criminal Procedure
The law of criminal procedure is intended to provide a mechanism for the enforcement of substantive criminal law (i.e. Penal Code). The law of criminal procedure is meant to be complementary to criminal law; it creates the necessary machinery for;
the detection of crime,
arrest of suspected criminals,
collection of evidence,
determination of guilt or innocence of the suspected person, and
the imposition of proper punishment on the guilty person
lqbal Ismail Sodawala v State of Maharashtra (1975) 3 SCC 140
The Supreme Court has aptly stated in the above-mentioned case that: “It is the procedure that spells much of the difference between the rule of law and the rule of whim and caprice.”
The code further attempts to strike a just balance between the need to give discretionary powers to the functionaries under the Code to make the investigative and adjudicatory processes strong and effective and the need for controlling the probable misuse/abuse of these powers.
It has been rightly said that too much expense, delay and uncertainty (flaws and loopholes) in applying the law of criminal procedure would render even the best of penal laws useless and oppressive.
It may be noted that the procedural code is not wholly procedural or adjective in nature. There are certain provisions of the Code which partake of the nature of substantive law e.g. prevention of offences, maintenance proceedings, etc. The Code confers the ‘right of maintenance’, ‘right of habeas corpus’, ‘right of appeal’, etc.
Enactments regulating the procedure of courts seem usually to be imperative or Mandatory and not merely directory, In other words, the rules of procedure are enacted to be obeyed. The object of these rules is to simplify and shorten proceedings. The Code Is a complete code with respect to matters provided for by it. So far as it deals with any point specifically, the Code must be deemed to be exhaustive and the law must be ascertained by reference to its provisions.
However, absence of any provision on a particular matter in the Code does not mean that there is no power in a criminal court to make such order as the ends of justice required; the court may act on the principle that every procedure should be understood as permissible till it is shown to be prohibited [Hansraj (1942) Nag 333].
Fair Trial
A person accused of any offence should not be punished unless he has been given a fair trial’ and his guilt has been proved in such trial. The requirements of a fair trial relate to the character of the court (unbiased judge), the venue (atmosphere of judicial calm), the mode of conducting the trial (fair prosecutor; no prejudices or threats against the witnesses), rights of the accused in relation to defence and other rights (Law Commission, 37th Report). The fair conduct of a trial upholds the dignity of man in a free society which diligently guards the rights, claims and privileges of its citizens against any encroachment upon them. Denial of a fair trial is as much injustice to the accused as is to the victim and the society.
The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. In fact, the primary object of criminal procedure is to ensure a fair trial to every person accused of any crime.
Adversary System of Trial
The system of criminal trial envisaged by the Cr. P.C. is the adversary system based on the accusatory method. In this system the prosecutor representing the State accuses the defendant (the accused person) of the commission of some crime; and the law requires him to prove his case beyond reasonable doubt. The law also provides fair opportunity to the accused person to defend himself. Thus, in an adversary system, both the parties are allowed to plead their cases, put forward their arguments, rebuttals, etc., with the help of evidence or counter evidence. The judge, more or less, is to work as an umpire between the two contestants.
Experience has shown that adversary system is by and large dependable for the proper reconciliation of public and private interests i.e. public interest in punishing the criminals and private interest in preventing wrongful convictions. The system of criminal trial assumes that the State using its investigating resources and employing competent counsel will prosecute the accused who, in turn, will employ equally competent legal services to challenge the evidence of the prosecution.
The above assumption has been found to be incorrect in one respect. Though the adversary system envisages equal legal rights and opportunities to the parties to present their respective cases before the court, such legal rights and opportunities in practice operate unequally and harshly, affecting adversely the poor indigent accused persons who are unable to engage competent lawyers for their defence. The system therefore departs from its strict theoretical passive stance and confers on the accused not only a right to be defended by a lawyer of his choice, but also confers on the indigent accused person a right to get legal aid for his defence at State’s cost (Sec. 304).
Further, apart from attempting to give legal aid to the indigent accused persons, the Code has suitably altered the notions of judge-umpire. The judge is not to remain passive as an umpire, but he has to play a more positive and active role for protecting the public interests as well as the individual interests of the accused person. For instance, the charge against the accused is to be framed not by the prosecution but by the court after considering the circumstances of case (Sec. 228), the prosecutor cannot withdraw the case without the consent of court (Sec 321), the court can examine the accused at any time to get explanations from him (Sec. 331).
Though the notion of adversary system of trial has undergone some transformation by legislative prescriptions and judicial gloss, it can still be reasonably considered as an essentially important component of the concept of ‘fair trial.”
Final Take Away:
Although we have come a long way from the times when there was codified procedure to follow and the present code provides ample solutions to the loopholes but it still requires several additions to it so that the balance of power could be maintained. Also, a legal system which is quick yet thoughtful and affordable, keeping Justice, Liberty, Equality and Fraternity in mind.
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