On registration of an FIR immediately, the BNSS, under Section 173(3), states that for cognizable offences, where the punishment is more than three years but less than seven years, a police officer is allowed 14 days to conduct a preliminary enquiry before registering an FIR and then proceed with investigation in the case.

“…Police, considering the nature and gravity of the offence,—

(i) proceed to conduct preliminary enquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of fourteen days; or

(ii) proceed with investigation when there exists a prima facie case,” the law states.

This change goes against the landmark 2013 Supreme Court ruling in Lalita Kumari vs State of Uttar Pradesh that it is mandatory for the police to register an FIR. Registration of an FIR without delay is a direction reiterated by the Supreme Court in several cases since the Lalita Kumari guidelines.

“While the Lalita Kumari judgement mandates that FIRs must be registered if the information discloses a cognizable offence, and allows preliminary enquiries only to determine if a cognizable offence is revealed, the BNSS, 2023, expands this scope. Under BNSS, preliminary enquiries are conducted to ascertain if there is a prima facie case for offences punishable with three years or more but less than seven years of imprisonment. Unlike the Lalita Kumari guidelines, which specify categories like matrimonial disputes, commercial offences, and medical negligence, BNSS applies broadly to all relevant offences within the defined punishment range,” states the Standard Operating Procedure for police by the Bureau of Police Research & Development.

On the right of the accused to be heard, the BNSS makes a key change in the provision. Section 200 of the CrPC prescribes the procedure relating to examination of a complainant by the magistrate while taking cognizance. It mandates that a magistrate taking cognizance can do so after examining the complainant on oath. Once cognizance is taken, the accused is then formally summoned.

The BNSS, in Section 223, retains the provision but adds a curious proviso or exception. “Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard,” the exception states. This means that a magistrate cannot even take cognizance of an offence without hearing the accused. This is a new development since the settled law does not allow the accused to produce documents even after the cognizance stage.

“An accused also has the right to remain silent before a case is made out against him. There is a chance that the judge may refuse to take cognizance, so compelling the accused to speak may prejudice his rights,” advocate Soutik Banerjee told The Indian Express.

The Supreme Court, in its 2004 decision in State of Orissa vs Debendranath Padhi, had said that the accused does not have a right to produce documents to prove their innocence during the Framing of Charges stage of a trial. The judge can only consider material produced by the prosecution to avoid a “roving and fishing inquiry” and a “mini-trial at the framing of charges stage.”

The BNSS provision also restricts the scope for a judge to take cognizance in offences where the accused is a public servant and the offence is alleged to have been committed in the course of his discharge of official function.

The judge cannot take cognizance “unless” the accused public servant is given an opportunity to “make assertions as to the situation that led to the incident so alleged” and his superior officer submits a report containing the facts and circumstances of the incident.

The CrPC provision does not have this wide exemption – it only exempts examination of the complainant when the complainant is a public servant and is acting in discharge of his official duties.