Author: Disha Choudhary,a Law Student at School of Law, Justice and Governance, Gautam Buddha University
Abstract
This article will look at Section 173(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, applicable to certain cognizable offences which are punishable by 3-7 years, which is conditional upon prior preliminary enquiries (PE) undertaken before the registration of the First Information Report (FIR). The BNSS requires, under section 173(3), that if a PE is undertaken, it has to be approved by the specific police authority before the PE or any other investigation takes place, and it also provides a 14-day time period once approval is granted. This article will examine the constitutional validity of this provision from the perspective of the Lalita Kumari v. State of U.P. Decision, which provides that once the cognizable offences are presented to a police officer, they are required to register the FIR. It will argue that Section 173(3) provides a possibility of further expansion of police officer discretion concerning FIR registration, thereby infringing an accused’s procedural fairness and access to justice guaranteed by Article 21 of the Constitution.. This article is going to do some doctrinal and comparative research to argue that whilst it may appear that the BNSS 2023 will improve the efficiency of investigation and gives an account for police accountability through procedural intervention, the effectiveness of the BNSS 2023 hinges on police behaviour being subject to the oversight of the judiciary to reduce excesses of power and preserve the protections and perimeters of the Constitution.
