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by sayum
26 August 2026 10:38 AM
“Statutory Remedy Before SP and Magistrate Is Mandatory Precondition” – In a significant ruling interpreting the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023, the High Court of Tripura at Agartala, by judgment dated 23/02/2026, dismissed a writ petition filed by Ranjit Debbarma, MLA, seeking a mandamus for registration of an FIR against a media editor and others.
Hon’ble Justice Dr. T. Amarnath Goud upheld the police action of closing the complaint as “No Cognizable Offence” after conducting a preliminary enquiry under Section 173(3) BNSS, 2023. The Court held that the petitioner had failed to exhaust the statutory remedies under Sections 173(4) and 175 of BNSS before invoking Article 226 of the Constitution.
The judgment clarifies the scope of preliminary enquiry under the BNSS regime and marks an important departure from the CrPC-era jurisprudence under Lalita Kumari v. Govt. of U.P.
The petitioner, a sitting MLA from 24-Ramchandraghat (ST) Assembly Constituency, lodged a written complaint on 26.10.2025 before the Officer-in-Charge, West Agartala Police Station. He alleged that an electronic media platform, “Headlines Tripura National,” owned by one Sri Pranab Sarkar, had broadcast news claiming that he possessed a fake Bangladeshi Voter ID Card and fabricated Birth Certificate.
The petitioner asserted that such broadcast was deliberate, malicious and intended to destroy his political career. He sought registration of an FIR under provisions of:
The police entered the complaint in the General Diary and, invoking Section 173(3) BNSS, conducted a limited preliminary enquiry with prior approval.
By communication dated 08.11.2025, the Officer-in-Charge disposed of the complaint as “No Cognizable Offence (NCO)” and declined to register an FIR, while clarifying that the matter would be reopened if fresh verifiable evidence emerged.
Aggrieved, the petitioner approached the High Court under Article 226 seeking quashing of the communication and a direction to register an FIR.
The High Court examined the following crucial questions:
“Whether under Section 173(3) BNSS police can conduct preliminary enquiry even when a cognizable offence is alleged?”
“Whether writ jurisdiction under Article 226 can be invoked directly without exhausting the statutory remedies under Sections 173(4) and 175 BNSS?”
“Whether the allegations disclosed offences under the SC/ST Act, IT Act, or cognizable provisions of BNS?”
Court’s Observations on Section 173 BNSS – A Shift From Lalita Kumari
The Court undertook a detailed comparison between Section 154 CrPC and Section 173 BNSS.
Referring to Lalita Kumari, the Court reproduced the classic mandate that:
“If the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith.”
However, the Court emphasized that Section 173(3) BNSS marks a “significant departure” from Section 154 CrPC.
Relying on the Supreme Court decision in Imran Pratapgadhi v. State of Gujarat (2026) 1 SCC 721, the Court noted:
“Sub-Section (3) of Section 173 of the BNSS is an exception to sub-Section (1)… 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.”
The High Court observed that the legislative intent behind Section 173(3) is to prevent registration of FIRs in frivolous cases punishable between three and seven years.
It concluded that the respondent-police had acted “in consonance with the provisions of BNSS, 2023” and that refusal to register FIR after preliminary enquiry was legally sustainable.
Defamation Under BNS – Non-Cognizable Offence
The police had observed that the allegations primarily disclosed reputational harm.
The Court agreed that criminal defamation under Section 356 BNS is “non-cognizable and bailable.” Therefore:
“Police cannot register an FIR for defamation alone; cognizance ordinarily lies on a private complaint before the competent Magistrate.”
Thus, mandamus could not be issued for registration of FIR on a non-cognizable allegation.
No Prima Facie Case Under SC/ST Act
The petitioner contended that as he belongs to a Scheduled Tribe, the broadcast attracted the SC/ST (Prevention of Atrocities) Act.
The Court rejected this contention, holding that:
“A mere allegation of preparing a fake birth certificate and Bangladeshi ID card does not automatically trigger the SC/ST (Prevention of Atrocities) Act, 1989.”
It observed that the complaint did not disclose any insult, intimidation or humiliation “on account of” his Scheduled Tribe status — an essential ingredient under the statute.
The Court found no prima facie targeted caste-based conduct and held that the provisions of the Act were not attracted.
IT Act Provisions Not Attracted
The Court also examined Sections 66C, 66D, 67 and 67A of the IT Act.
It held that the complaint did not disclose:
The Court categorically observed:
“From the complaint itself, it is revealed that no offence of publication or transmission of any material in electronic form, as provided under Section 67 of the IT Act, is made out.”
Thus, no cognizable offence under the IT Act was prima facie disclosed.
Alternative Remedy Under Sections 173(4) and 175 BNSS
The High Court strongly emphasized the statutory hierarchy under BNSS.
Quoting the Supreme Court’s interpretation in XXX v. State of Kerala (2026 SCC OnLine SC 114), the Court reiterated that approaching the Superintendent of Police under Section 173(4) is a “mandatory precondition” before invoking the jurisdiction of the Magistrate.
It held that the petitioner had directly invoked Article 226 without exhausting remedies before the Superintendent of Police or the Magistrate under Section 175.
The Court ruled:
“Without exhausting the remedies under Section 173(1) and 173(4) of BNSS, 2023, the petitioner has approached this High Court… which according to this court is not permissible.”
Scope of Writ Jurisdiction – No Mandamus for FIR
The Court reiterated that writ jurisdiction should not be exercised to direct registration of FIR when statutory remedies exist and the police have acted in conformity with Section 173(3).
It held that:
“This Court does not deem it appropriate to issue any mandamus directing the authorities for consideration of the petitioner’s complaint since the same is barred under Section 173(1) and 173(4) of BNSS.”
Accordingly, the writ petition was dismissed, and the communication dated 08.11.2025 was upheld.
However, liberty was granted to the petitioner to approach the competent Magistrate under the BNSS framework.
The Tripura High Court’s ruling underscores the transformative shift introduced by Section 173(3) BNSS, permitting limited preliminary enquiry even when cognizable offences are alleged within the three-to-seven-year punishment bracket.
The judgment reinforces that under the BNSS regime, statutory remedies before the Superintendent of Police and Magistrate must be exhausted before invoking writ jurisdiction.
The Court ultimately dismissed the writ petition, upheld the “No Cognizable Offence” finding, and granted liberty to pursue remedies under the BNSS before the Magistrate.
Date of Decision: 23/02/2026
