The Rajasthan High Court has clarified that Section 173(3) of the Bhartiya Nagarik Suraksha Sanhita, 2023, mandates a preliminary inquiry before registration of an FIR for offences punishable by less than seven years, reinforcing the procedural safeguards established in Arnesh Kumar v. State of Bihar. This ruling underscores the necessity of procedural compliance even in the early stages of investigation, particularly where coercive measures are contemplated.
Background & Facts
The Dispute
The petitioner, Govind Kumar Sharma, a Protocol Officer-cum-Administrative Officer at the District Court in Barmer, Rajasthan, challenges the registration of FIR No. 0171/2026 dated 05.05.2026 under Sections 75(2), 78(2), and 79 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), and Section 67A of the Information Technology (Amendment) Act, 2008. The FIR was registered based on a complaint filed by the second respondent, Rekha Chandak, alleging transmission of obscene electronic material.
Key Facts
- The complaint was lodged on or before 05.05.2026, triggering the registration of FIR No. 0171/2026 on the same date.
- The alleged offences under Sections 75(2), 78(2), and 79 of BNSS are punishable with imprisonment up to three years, falling below the seven-year threshold.
- Section 67A of the IT Act, 2008, prescribes imprisonment up to five years, also below the seven-year threshold.
- No preliminary inquiry was conducted prior to FIR registration.
- The complainant, Rekha Chandak, attempted to record her statement at the police station but found the Investigating Officer absent.
- As of the date of the petition (13.05.2026), no arrest, search, or seizure had been carried out; the investigation was at the stage of recording the complainant’s statement.
Procedural History
- 05.05.2026: FIR No. 0171/2026 registered without preliminary inquiry.
- 13.05.2026: Petitioner filed Criminal Misc. Petition No. 3821/2026 before the High Court of Judicature for Rajasthan at Jodhpur.
- 13.05.2026: Hearing conducted; parties submitted arguments.
- 13.05.2026: Judgment delivered by Hon’ble Mr. Justice Munnuri Laxman.
The Parties' Positions
For the Petitioner
The petitioner, through Senior Advocate Mr. Dhirendra Singh, contended that:
- Section 173(3) of the BNSS mandates a preliminary inquiry before FIR registration for offences punishable by less than seven years.
- The failure to conduct such an inquiry renders the FIR registration procedurally invalid.
- Even if investigation proceeds, any coercive action must comply with the guidelines laid down in Arnesh Kumar v. State of Bihar.
- The absence of a preliminary inquiry violates the principle of proportionality and due process.
For the Respondent
The State, represented by Public Prosecutor Mr. V.S. Rajpurohit, and the complainant, Rekha Chandak, submitted that:
- The investigation is still in its initial stage, with only the complainant’s statement pending recording.
- No coercive action has been taken against the petitioner.
- The complainant is willing to appear before the Investigating Officer, but the officer was not present during her visit.
- The Court should not interfere at this preliminary stage.
Relief Sought
The petitioner sought quashing of FIR No. 0171/2026 on the ground of non-compliance with Section 173(3) of the BNSS and the Arnesh Kumar guidelines, and directions to conduct a preliminary inquiry before any further action.
The Legal Issue
Whether the failure to conduct a preliminary inquiry under Section 173(3) of the Bhartiya Nagarik Suraksha Sanhita, 2023 before registering an FIR for offences punishable by less than seven years renders the FIR illegal and unsustainable.
Arguments Presented
For the Petitioner
The petitioner relied on Section 173(3) of the BNSS, which mandates that where a cognizable offence is punishable with imprisonment of less than seven years, a preliminary inquiry must be conducted before registration of an FIR. He argued that this provision is a statutory safeguard against arbitrary arrests and misuse of police power. He further invoked Arnesh Kumar v. State of Bihar, emphasizing that even if investigation proceeds, coercive measures must be justified by necessity and proportionality. The absence of any inquiry, he submitted, violates the procedural fairness required under Article 21 of the Constitution.
For the Respondent
The State and complainant contended that the investigation had not progressed beyond recording the complainant’s statement, and no arrest or coercive action had been initiated. They argued that judicial intervention at this stage would be premature and could impede the investigation. They also noted that the complainant had attempted to appear before the Investigating Officer but was unable to do so due to the officer’s absence, indicating procedural irregularity but not illegality.
The Court's Analysis
The Court examined the language of Section 173(3) of the BNSS, which states: "Where a cognizable offence is punishable with imprisonment for a term which may extend to less than seven years, a preliminary inquiry shall be conducted before registration of the FIR." The Court held that this provision is mandatory and not directory. The legislature’s intent, as reflected in the BNSS, is to prevent indiscriminate FIR registration and to ensure that only cases warranting formal investigation proceed.
"The requirement of preliminary inquiry under Section 173(3) is not a mere formality; it is a substantive procedural safeguard designed to prevent abuse of power and protect the liberty of individuals."
The Court further noted that while the Arnesh Kumar guidelines were framed under the CrPC, their underlying principles - proportionality, necessity, and avoidance of automatic arrest - are equally applicable under the BNSS. The Court emphasized that even if the investigation continues, any future coercive action against the petitioner must strictly adhere to the Arnesh Kumar framework, including the requirement to record reasons for arrest and to avoid arrest unless absolutely necessary.
The Court declined to quash the FIR at this stage, observing that the investigation was still in its nascent phase and no adverse action had been taken against the petitioner. However, it made clear that the failure to conduct a preliminary inquiry was a procedural defect that could not be ignored.
The Verdict
The petition was disposed of with directions. The Court held that the police must conduct a preliminary inquiry under Section 173(3) of the BNSS before proceeding further with the investigation. Any coercive action, including arrest, search, or seizure, shall be taken only after compliance with the guidelines laid down in Arnesh Kumar v. State of Bihar. The Investigating Officer is directed to record the complainant’s statement at the earliest and to submit a report on the preliminary inquiry within 14 days. All pending applications are dismissed as infructuous.
What This Means For Similar Cases
Preliminary Inquiry Is Mandatory, Not Optional
- Practitioners must now insist on compliance with Section 173(3) BNSS in all cases involving offences punishable by less than seven years.
- FIRs registered without preliminary inquiry are vulnerable to challenge, even if no coercive action has been taken.
- Courts may stay proceedings or direct quashing if the inquiry is omitted.
Arnesh Kumar Guidelines Apply Beyond CrPC
- The Arnesh Kumar principles are now binding under the BNSS regime for all coercive actions.
- Police must record reasons for arrest, avoid automatic arrest, and consider alternatives like notice under Section 41A BNSS.
- Failure to comply may render subsequent proceedings invalid.
Procedural Defects Can Be Remedied, But Not Ignored
- Courts will not quash FIRs at the earliest stage if no harm has occurred, but will impose mandatory procedural compliance.
- Investigating Officers must document the preliminary inquiry process in writing and retain records for judicial scrutiny.
- Defence counsel should raise non-compliance with Section 173(3) as a preliminary objection in all relevant cases.
