'Lalita Kumari' Judgment Misused A Lot, Says Supreme Court On Challenge To BNSS Allowing Preliminary Enquiry Before FIR

The Supreme Court on Friday orally commented that the 2013 judgment in Lalita Kumari v. State of UP, which mandated that the police must register FIR if the complaint prima facie discloses a cognizable offence, except in certain specified categories, has been abused a lot.

The Lalita Kumari judgment ruled out preliminary inquiry by the police before the registration of FIR except in cases relating to matrimonial disputes, corruption cases, medical negligence, cases with inordinate delay etc. The Court remarked that this mandate to register FIR has led to the proliferation of frivolous FIRs, and burdening the Courts with petitions seeking quashing of FIRs.

A bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi was hearing a petition challenging various provisions of the new criminal laws, Bharatiya Nyaya Sanhita and the Bharatiya Nagarik Suraksha Sanhita. One of the provisions under challenge was Section 173 of the BNSS, which allows the police to conduct a preliminary inquiry in certain category of cases. As per Section 173(3), the officer in charge of the station house office may conduct a preliminary enquiry, with the permission of DySP, in cases involving offences punishable with imprisonment between 3-7 years.

Senior Advocate Menaka Guruswamy, for the petitioner, questioned this provision as violating the Lalita Kumari judgment.

CJI Surya Kant then expressed his reservations about the Lalita Kumari verdict.

"Sometimes judgments are given sitting on ivory towers. That judgment- have you seen what kind of litigation it has generated? Once cognizable offence is disclosed, FIR has to be registered. How much that judgment has been abused in this country? Many times judicial courts are abused. All cantankerous people misuse. Without knowing our societal situations, ground realities and rural communities, without understanding how people are living, we keep on passing judgments in the name of perceived rights, and lead to completely disturbing the fabric of the country," CJI Kant said.

Justice Bagchi said that the law cannot remain crystallised in the Lalita Kumari judgment. Justice Bagchi pointed out that Lalita Kumari judgment also allowed a preliminary inquiry in certain categories, and the new BNSS has merely expanded those categories. Whether the classification is rational or not can be examined, but it cannot be argued that preliminary enquiry is contrary to Lalita Kumari judgment.

"The substratum of law with regard to access to justice cannot remain crystallised in light of Lalita Kumari. What the new law has done? For offences punishable with imprisonment between 3 to 7 years, a limited discretion is given to the police for a preliminary enquiry before registration of FIR. Preliminary enquiry was not alien to Lalita Kumari which categorised it to certain cases. The legislature has taken off from that and defined the categories statutorily with reference to the degree of punishment. You may argue if it is not a rational classification, arbitrary, etc., but you cannot say it is in the teeth of Lalita Kumari," Justice Bagchi said.

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