Amongst other things, BNSS has introduced a crucial amendment regarding preliminary enquiry (herein after referred to as “PE”).  

Here’s how the newfangled provision reads: 

Now, in cases that are punishable with imprisonment of more than 3 years but less than 7 years, a preliminary enquiry may be conducted by the police officer, before registration of an FIR, with a view to ascertain whether a prima facie case exists. This enquiry has to be completed within 14 days, and commenced with the prior permission of an officer not below the rank of DSP. 

As background, while the 1973 CrPC contained no specific provision on conducting a PE, the concept of some enquiry prior to the FIR did exist in some police acts/laws. The concept was formally introduced (or – rather – recognised) by way of a judge-made law. As per the judgment, in order to find out whether a cognizable case is disclosed at all, a PE could be conducted. Specific categories of cases were named as fit for a PE such as: matrimonial, commercial, medical negligence, corruption cases, and abnormally delayed cases. This was the essence of the Lalita Kumari Judgement.

The new amendment above appears to be an attempt to recognise the concept and put it on a statutory footing. 

Now, while the concept of a PE, by itself, is unexceptionable and salutary, (especially given our background of rampant abuse of criminal law); however, its implementation in the present shape and manner raises a few questions. 

Things to ponder:  

1. The use of “may” appears to give a discretion to the police officer to do or not to do a PE. Does this discretion make the addition itself counterproductive and the police officer may, even in cases where PE should have been done, omit to do it? 
2. Having said that, if the provision is made mandatory for a particular class of cases, would it be counterproductive, insofar as it may halt the formal registration of FIR in certain cases where time is of the essence? 
3. Also, what about cases punishable with less than 3 years or more than 7 years? Does their exclusion from the section mean that a PE is not possible in such cases?   
4. What are the consequences of failure to finish the PE in 14 days?
5. Also, the above would have to be reconciled with some special rules/guidelines. For instance, CBI manual’s timeline for completion of PE is 3 months (as opposed to 14 days here); Now, the question that arises is: which timeline is to prevail? 14 days or 3 months?
6. Wasn’t Lalita Kumari a better standard & more comprehensive guidance insofar as it illustrated 5 specific categories of cases where PE is eminently desirable? 
7. Is the requirement of permission from the DSP counterproductive as the process of taking permission may delay the process, which may be problematic given the fact that it is not just the FIR but also the PE that would remain stalled in the meanwhile?                          

It is clear that the provision, though well-intentioned, leaves a lot unanswered.            

Authored by Bharat Chugh & Kritika Malik. Btw, Adv. Kritika Malik is the newest addition to The Chambers of Bharat Chugh (“CBC”) family. She loves dogs, carnations, sweet in entrées and savoury in desserts – all things antithetical to what they should be.