Preliminary Inquiry Must Be Conducted Before Registering FIR in Speech-Related Offences Punishable Up To 7 Years: Supreme Court Explains Section 173(3) BNSS

In a significant ruling Supreme Court of India laid down an authoritative interpretation of Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The Court clarified that in cases where offences arising from speech or expression are punishable with imprisonment of less than 7 years, police officers are expected to exercise discretion and conduct a preliminary inquiry before registering an FIR. This judgment is poised to have a far-reaching impact on safeguarding free speech from frivolous prosecutions.
Failure to Hold Preliminary Inquiry Defeats The Very Purpose of Section 173(3) — Supreme Court on Protecting Article 19(1)(a)
The case arose from a criminal complaint against Imran Pratapgarhi, a Rajya Sabha Member, based on the recital of a poem during a mass wedding program. The FIR was lodged under various provisions of the Bharatiya Nyaya Sanhita, 2023 (BNS), including Sections 196, 197(1), 299, 302, and 57, alleging that the poem promoted enmity and disrupted communal harmony. The High Court refused to quash the FIR on the ground that the investigation was at a “nascent stage.”
The Supreme Court, however, held that the police failed to perform a statutory obligation under Section 173(3) BNSS, rendering the registration of FIR legally unsustainable.
Court’s Finding on Section 173(3) BNSS: “Meant to Prevent Frivolous FIRs in Speech Cases”
The Court highlighted a crucial legislative change under the BNSS compared to the old CrPC: “Sub-section (3) of Section 173 of the BNSS makes a significant departure from Section 154 of CrPC. It provides that when information relating to the commission of a cognizable offence, punishable for three years or more but less than seven years, is received, the officer may conduct a preliminary inquiry to ascertain whether there exists a prima facie case.”
The Court found that this provision was introduced precisely to protect individuals, particularly in speech-based offences, from harassment through unfounded criminal proceedings: “The intention appears to be to prevent the registration of FIRs in frivolous cases where punishment is up to 7 years, even if the information discloses the commission of a cognizable offence.”
Preliminary Inquiry is Not Optional Where Article 19(1)(a) Is Involved
The Court underlined that when the allegations are based on speech and punishable within the range specified, police must normally opt for a preliminary inquiry, stating: “If an option under sub-Section (3) is not exercised by the police officer in such a case, he may end up registering an FIR against a person who has exercised his fundamental right under Article 19(1)(a) even though clause (2) of Article 19 is not attracted.”
The judgment explained that preliminary inquiry serves as a constitutional filter in such cases: “In speech-related offences where the maximum punishment is less than 7 years, preliminary inquiry is intended to secure the liberty of thought and expression — a basic feature of the Constitution.”
Courts Mandated to Read Section 173(3) Harmoniously With Article 19(1)(a) and Article 51A(a)
The Court stressed the constitutional duty of police officers to uphold fundamental rights: “The police officers must abide by the Constitution and respect its ideals. Article 19(1)(a) confers a fundamental right on all citizens to freedom of speech and expression. The police machinery is a part of the State within the meaning of Article 12 of the Constitution. Moreover, the police officers, being citizens, are bound to abide by the Constitution.”
The Court added: “Liberty of thought and expression is one of the ideals of our Constitution. It must not be lightly interfered with.”
Supreme Court’s Guidance: Preliminary Inquiry Should Be the Rule in Free Speech FIRs
Justice Oka, writing for the Bench, gave a direct guideline: “When the commission of cognizable offences is alleged, where punishment is for imprisonment up to 7 years, which is based on spoken or written words, it will always be appropriate to exercise the option under sub-Section (3) of Section 173 and conduct a preliminary inquiry to ascertain whether there exists a prima facie case to proceed.”

The Court further directed that: “Higher police officers referred to in sub-Section (3) must normally grant permission to conduct a preliminary inquiry in free speech cases.”
By clarifying the scope of Section 173(3) BNSS, the Supreme Court has created a new procedural safeguard for speech-related offences, emphasizing that the protection of free expression must not be sacrificed at the altar of mechanical FIR registration.
The judgment is likely to be widely cited whenever criminal proceedings are initiated against speech, dissent, or artistic expression.
Date of Decision: 28 March 2025