FIR Registration in Speech-Related Offences — The Preliminary Inquiry Threshold Under the BNSS

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Introduction

A recurring question in cases involving a poem, a social-media post, a speech, or a cartoon is procedural rather than substantive: must the police register a First Information Report (FIR) the moment a complaint is made, or may they first inquire whether an offence is even disclosed? The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), together with a 2025 ruling of the Supreme Court, has clarified the answer for speech-related offences. This article explains the FIR-registration framework, the preliminary-inquiry exception, and a Magistrate’s role where the police decline to act.

The General Rule — Section 173(1) BNSS

Section 173(1) of the BNSS continues the long-settled rule that an officer in charge of a police station, on receiving information disclosing the commission of a cognizable offence, must register an FIR. This is the statutory expression of the principle laid down by a Constitution Bench in Lalita Kumari v. State of U.P., (2014) 2 SCC 1 — registration of an FIR is mandatory if the information discloses a cognizable offence, and no preliminary inquiry is permissible in such a case as a general rule.

The information may now be given orally or by electronic communication, and the BNSS provides for the registration of a “Zero FIR” at any police station irrespective of territorial jurisdiction.

The Exception — Section 173(3) Preliminary Inquiry

The BNSS introduced an important structural change. Section 173(3) creates a statutory exception for a defined category of cases. Where the information relates to a cognizable offence punishable with imprisonment for three years or more but less than seven years, the officer in charge may — with the prior permission of an officer not below the rank of Deputy Superintendent of Police, and having regard to the nature and gravity of the offence — conduct a preliminary inquiry to ascertain whether there is a prima facie case for proceeding, instead of registering an FIR straight away.

This is a significant departure from the pre-BNSS position, under which preliminary inquiry was confined to a narrow set of categories carved out by Lalita Kumari. Section 173(3) now gives it a statutory home for the 3-to-7-year band of offences.

Why This Matters for Speech Offences

Most criminal provisions dealing with speech fall within the 3-to-7-year band that triggers Section 173(3). These include, in the Bharatiya Nyaya Sanhita, 2023:

Section 196 — promoting enmity between different groups on grounds of religion, race, language, etc.;
Section 197 — imputations and assertions prejudicial to national integration;
Section 299 — deliberate and malicious acts intended to outrage religious feelings;
Section 353 — statements conducing to public mischief.

These offences are punishable with imprisonment generally up to three years (with aggravated forms attracting up to five years), placing them squarely within the Section 173(3) band. The more serious Section 152 BNS — acts endangering the sovereignty, unity and integrity of India — is punishable with imprisonment up to life and therefore falls outside the 173(3) band, though, as discussed below, the constitutional caution applicable to speech offences continues to apply to it.

The Imran Pratapgarhi Safeguard

The decisive judicial development came in Imran Pratapgadhi v. State of Gujarat, 2025 INSC 410, decided by the Supreme Court on 28 March 2025. The case arose from an FIR registered over a poem posted on social media. The Supreme Court quashed the FIR and, in doing so, laid down a principle of general application.

The Court held that where the offence alleged falls within the restrictions on free speech recognised in Article 19(2) of the Constitution — that is, where the complaint is, in substance, about expression — it is “always appropriate” for the police to conduct a preliminary inquiry under Section 173(3) of the BNSS before registering an FIR. The purpose, the Court explained, is to ascertain whether the speech genuinely discloses a prima facie offence, or whether it is constitutionally protected expression that has merely caused offence.

The Court treated this not as a mere procedural nicety but as a constitutional safeguard — a check against the precipitate criminalisation of speech. It also held, on the facts, that the offences alleged were not made out at all: the poem was not inflammatory and did not promote enmity, and the FIR violated the right to free speech under Article 19(1)(a).

The combined effect is a clear two-step approach for speech complaints:

Before registering an FIR, the police should ordinarily conduct a Section 173(3) preliminary inquiry, with the prescribed sanction, to test whether an offence is disclosed.
The substantive threshold remains high — mere offence, discomfort, or disagreement is not enough; the speech must cross into the territory of an actual offence, judged against the constitutional standard.

This procedural caution operates alongside the substantive standards discussed in the related explainers on this site — see Section 152 BNS and the limits of free speech.

When the Police Decline — Section 175(3) BNSS

If the police refuse to register an FIR or to act, the complainant is not without remedy. Section 175(3) BNSS empowers a Magistrate to direct investigation. But the BNSS deliberately built in safeguards against the casual invocation of this power. Before a Magistrate may order an investigation under Section 175(3), the following conditions must be satisfied:

Prior recourse to the Superintendent of Police — the complainant must first have approached the Superintendent of Police under Section 173(4), having been aggrieved by the refusal of the officer in charge to register the FIR.
Affidavit support — the application to the Magistrate must be supported by an affidavit, as required under Section 173(4). An application without an affidavit cannot be entertained.
Consideration of the police submissions — the Magistrate must consider the submissions made by the police officer explaining the refusal to register the FIR, before issuing any direction.

A direction under Section 175(3) must be a speaking order, passed after due application of mind, and only where the material discloses a cognizable offence and there is sufficient ground to investigate. The Magistrate’s inquiry is to be conducted by the Magistrate and cannot be delegated back to the police.

Important Points to Remember

The general rule under Section 173(1) BNSS is that an FIR must be registered when the information discloses a cognizable offence — the Lalita Kumari principle.
Section 173(3) BNSS permits a preliminary inquiry — with the prior permission of an officer of at least DSP rank — for cognizable offences punishable with three years or more but less than seven years.
Most BNS speech offences fall within this 3-to-7-year band; Section 152 BNS is more serious and falls outside it.
Under Imran Pratapgadhi v. State of Gujarat (2025), a preliminary inquiry under Section 173(3) is “always appropriate” before registering an FIR where the complaint concerns an offence within the Article 19(2) restrictions on free speech.
The substantive threshold for a speech offence remains high — causing offence is not, by itself, a crime.
If the police wrongly refuse to register an FIR, a Magistrate may direct investigation under Section 175(3) BNSS — but only after prior recourse to the Superintendent of Police, on an affidavit, and after considering the police’s explanation.

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