Allahabad High Court
MOHD. IQBAL ALIAS IQBAL BALAversusSTATE OF U.P. AND 6 OTHERS
- Decided
Holding
Mandamus cannot be issued as the statute confers discretion, though police must endeavour to comply with Section 173(3) when the offence is punishable up to seven years.
Summary
Petitioner Mohd. Iqbal sought a writ of mandamus directing the police not to register any further FIRs against him without first conducting a preliminary inquiry as mandated by Section 173(3) of the Bhartiya Nagrik Suraksha Sanhita (BNSS). The petitioner also asked for video‑conferenced statements and that he not be made an accused without court leave. The Court examined the language of Section 173(3), noting that it grants police discretion to hold a preliminary inquiry for offences punishable up to seven years, but contains no non‑obstante clause making such inquiry mandatory. Consequently, the Court held that it could not issue a mandamus compelling a mandatory inquiry, but directed the police to endeavour to comply with the statutory safeguard where the circumstances warrant. The petition was therefore disposed of with the directions that the respondents should follow Section 173(3) when appropriate.
Issues considered
- Whether a writ of mandamus can be issued directing police to conduct a preliminary inquiry before registering an FIR under Section 173(3) of the BNSS.
- Whether Section 173(3) of the BNSS imposes a mandatory duty on the police to hold a preliminary inquiry.
Legislation cited
- Bhartiya Nagrik Suraksha Sanhita — s. 173(3)
Subjects
- mandamus
- FIR
- preliminary inquiry
- police discretion
- Section 173
- BNSS
- writ petition
- Article 226
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. WRIT PETITION No. - 13002 of 2026
Mohd. Iqbal Alias Iqbal Bala
.....Petitioner(s)
Versus
State Of U.P. And 6 Others
.....Respondent(s)
Counsel for Petitioner(s) : Abhishek Tandon, Vivek Kumar
Srivastava
Counsel for Respondent(s) : G.A.
Court No. - 46
HON'BLE RAJEEV MISRA, J.
HON'BLE DR. AJAY KUMAR-II, J.
1. Heard Mr. P.C. Srivastava, learned Senior Counsel assisted by
Mr. Abhishek Tandon, the learned counsel for petitioner and Mr. Manish
Goyal, the learned Additional Advocate General, assisted by Mr. Sanjay
Singh, the learned A.G.A. 1st representing State-respondents No.1 to 7.
2. Perused the record.
3. Petitioner Mohd. Iqbal Alias Iqbal Bala has approached this Court by
means of present writ petition under Article 226 of the Constitution of India
with the following prayer:
"A) Issue a writ, order or direction in the nature of mandamus directing the
Respondents not to lodge/register any further First Information Report(s) against the
Petitioner without conducting preliminary enquiry in respect of the offence(s) alleged
to have been committed by the Petitioner; AND
B) Issue a writ, order or direction in the nature of mandamus directing the
Respondents/Investigating Officer to record the statement(s) of the Petitioner, if
required, through video conferencing, prior to lodging/registering any First
Information Report against the Petitioner; AND
C) Issue a writ, order or direction in the nature of mandamus directing the
Respondents not to add/make the Petitioner as an accused in any pending First
Information Report(s) and/or any new First Information Report(s) lodged hereinafter,
without the leave of this Hon'ble Court; AND/OR
D) Issue any other suitable writ, order or direction as this Hon'ble Court may deem fit
and proper in the facts and circumstances of the instant matter.
CRLP No. 13002 of 2026
2
E) Award cost of this petition in favour of the Petitioner."
4. Section 173 Bhartiya Nagrik Suraksha Sanhita for short "B.N.S.S." is
relevant for the controversy in hand. Accordingly, the same is reproduced
herein below:-
"Sub-section (3) of Section 173 clearly provides that in case the offence
complaint is punishable to the sentence for three years but less than seven
years, then in such a case officer concerned may hold a preliminary inquiry
but after obtaining permission from an officer concerned but not below the
rank of Deputy Superintendent of Police.
5. The language of the statute does not contain any non-obstante clause,
therefore it is the discretion of the Police Officer to hold or not to hold a
preliminary inquiry before registering an FIR. In this state of affair, no
mandamus as prayed for can be issued by this Court directing the
respondents to mandatorily hold an inquiry before registering an FIR.
6. However, since the statute itself has provided a safeguard before an FIR is
lodged therefore in case any matter comes to the State-respondents regarding
lodging of the F.I.R. and the offence complained of is punishable with a
sentence upto seven years or less, then in such a circumstance, the State-
respondents shall endeavour to first comply with the provisions of Section
173 (3) BNSS before registering the F.I.R. if the situation so demands.
7. With the aforesaid directions, the writ petition stands finally disposed of.
September 29, 2026
Neeraj
(Dr. Ajay Kumar-II,J.) (Rajeev Misra,J.)
Digitally signed by :-
NEERAJ KUMAR SINGH
High Court of Judicature at Allahabad
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