INDIA Trends and Developments Contributed by: Kamal Shankar, Varun Lamba, Arjun Narang and Shivam Jain, AZB & Partners
establish her independent source of income, whereas the other judge set aside the conviction on the lack of mens rea on the part of the appellant. The bench has referred the matter for constitution of a larger bench, and the issue is still pending. It is worth highlighting that the Supreme Court in P Shanti noted that the accused/appellant therein assisted the “public servant” in accumulation of assets disproportionate to the known sources of income, and thus upheld the conviction of the appellant/ accused. Preliminary Inquiry Not Mandatory Prior to Registration of a First Information Report (FIR) Section 173 of the Bharatiya Nyaya Suraksha Sanhita, 2023 (BNSS), similar to the corresponding provision under the Code of Criminal Procedure, 1973 (CrPC), empowers the police to register an FIR upon receiv - ing information about the commission of a cognisable offence. Under the CrPC regime, the Supreme Court, in light of the lacunae in the law and by way of judge-made law, has enabled a police officer to conduct a preliminary inquiry (in certain categories of cases) to ascertain whether a cognisable offence was disclosed in the complaint. However, under the BNSS, the legislature has given a statutory recognition to the concept of preliminary inquiry in cases punishable with impris - onment for three years or more but less than seven years, wherein the police officer may conduct a pre - liminary inquiry to ascertain whether there exists a prima facie case for proceeding in the matter within a period of 14 days. While a preliminary inquiry may be conducted in some cases to assess the credibility of the information, it is not mandatory before an FIR is registered, and this is within the discretion of the police officer. This aligns with the objective of ensuring that corruption-related cases are investigated promptly and thoroughly, with - out unnecessary delays. The courts in India have held that, while a preliminary inquiry may help to determine whether the information reveals the commission of a cognisable offence, it is not a prerequisite for an FIR under the PC Act.
In State of Karnataka v TN Sudhakar Reddy , 2025 SCC Online SC 382, the Supreme Court clarified that a pre - liminary inquiry is not mandatory before registering an FIR under the PCA. The Court observed that the purpose of such an inquiry is not to verify the accuracy of the information but simply to ascertain whether it reveals a cognisable offence. Thus, the Court con - cluded that a preliminary inquiry cannot be used as a tool to delay the registration of an FIR or to give the accused an undue advantage. The Supreme Court noted that a preliminary inquiry is not sine qua non for registering a case against a public servant who is accused of corruption, and that it is neither a vested right of the accused nor a manda - tory prerequisite for registration of a criminal case. The Court noted that the purpose of a preliminary inquiry is not to verify the veracity of the information received, but merely to ascertain whether said information reveals the commission of a cognisable offence. Nota - bly, the Court emphasised that whether a preliminary inquiry is necessary or not will vary according to the facts and circumstances of each case. In State of Karnataka v Channakeshava HD , 2025 SCC OnLine SC 753, the Court further reinforced this view, noting that the law does not grant the accused a vest - ed right to insist on a preliminary inquiry before an FIR is registered. The Court emphasised that the need for a preliminary inquiry should be assessed based on the facts of each case but should not be an impediment to the registration of an FIR in cases of corruption. While a preliminary inquiry is not mandated, the PC Act provides for prior approval of the competent authority before enquiring into or investigating alleged offences by public servants in the discharge of their official functions or duties. Section 17A of the PC Act, which came into effect on 26 July 2018, aims to pro - tect honest public servants from harassment during inquiries in respect of the decisions taken or acts done in the bona fide performance of their official functions or duties. Section 17A of the PC Act provides that an investigation into offences under the Act can begin only after the approval of a competent authority. The remit of the competent authority in this regard is only limited to whether the alleged offence is relatable to any recommendation made or decision taken by such
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