Imran Pratapgadhi vs. State Of Gujarat

2025 INSC 410
REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1545 OF 2025


IMRAN PRATAPGADHI …APPELLANT


VERSUS


STATE OF GUJARAT AND ANR. …RESPONDENTS


J U D G M E N T

ABHAY S. OKA, J.
FACTUAL ASPECT
th
1. On 26 January 2025, our Constitution became 75
years old. One of the most important fundamental rights
conferred on the citizens of India is under Article 19 (1)(a)
of the Constitution. It is the fundamental right of freedom
of speech and expression. This case shows that even after
75 years of the existence of our Constitution, the law
enforcement machinery of the State is either ignorant
about this important fundamental right or does not care
for this fundamental right.
Signature Not Verified
Digitally signed by
ASHISH KONDLE
Date: 2025.03.28
13:32:12 IST
Reason:
Criminal Appeal No.1545 of 2025 Page 1 of 54




2. The issue in this appeal revolves around a poem
recited in the background of a video clip. The video clip
was posted on social media by the appellant. The text of
the poem has been reproduced in paragraph 13 of the
impugned judgment, which reads thus:
“ ए खून (blood) के प्यासो (thirsty) बात सुनो
ग़र हक्क़ (truth) की लडाई जुल्म
(excesses/injustice) सही
हम जुल्म (excesses/injustice) से इश्क़
(love) ननभा देंगे
गर शम ए नगररया
- - (melting of a candle
which resembles tears)
आनतश (flame) है
हर राह वो शम्मा (light) जला देंगे
गर लाश हमारे अपनोंकी खतरा है तुम्हारी मसनद
(throne) का उस रब (god) की ़सम हस्ते हस्ते
नकतनी लाशे दफ़ना देंगे
ए खूनके प्यासों बात सुनो ”

3. The appellant is a Member of the Rajya Sabha. The
nd
2 respondent is the first informant at whose instance a
First Information Report (for short, ‘FIR’) was registered
with Jamnagar Police Station for the offences punishable
under Sections 196, 197(1), 302, 299, 57 and 3(5) of the
Bharatiya Nyaya Sanhita, 2023 (for short, ‘the BNS’). In
nd th
the complaint of the 2 respondent, he stated that on 29
December 2024, on the occasion of the birthday of one
Altaf Ghafarbhai Khafi, a member of the Municipal
Criminal Appeal No.1545 of 2025 Page 2 of 54




Corporation of Jamnagar, a mass wedding program was
held at Sanjari Education and Charitable Trust. The said
Municipal Councillor invited the present appellant to the
function. A video of the event was made. The appellant
posted the video on the social media platform ‘X’ from his
verified account. The video has the recitation of the poem
reproduced above in the background. The allegation in the
complaint is that the spoken words of the poem incite
people of one community against another, and it hurts a
community's religious and social sentiments. It is alleged
that the song had lyrics that incited people of other
communities to fight for the community's rights. It is
alleged that the video posted by the appellant created
enmity between two communities at the national level and
hatred towards each other. It was further alleged that it
had a detrimental effect on national unity.
PROCEEDINGS BEFORE THE HIGH COURT
4. The appellant filed a petition under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita (for short, ‘the
BNSS’) read with Article 226 of the Constitution of India,
praying for quashing the said FIR. While issuing notice on
the said petition, the learned Judge had directed the
appellant to file an affidavit disclosing the poem's source.
Accordingly, an affidavit was filed by the appellant. In
paragraphs 3 to 5 of the affidavit, he stated thus:
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“ 3. In compliance with this Hon'ble Court's
oral order dated 13.01.2025 in R/Special
Criminal Application (Quashing) No.551 of
2025, I stated that the poem in question,
based on available information, including
sources reviewed through ChatGPT and
public domain opinions, the poem is
attributed to either Faiz Ahmed Faiz or
Habib Jalib. However, as internet opinions
remain divided, I am unable to
conclusively ascertain the definite
authorship between the two. A copy of the
screenshot of the results of ChatGPT
search engine are annexed herewith and
marked as ANNEXURE-A.
4. It is further stated that a plain reading
of the song poem, it is a message of love
and non-violence
5. I further solemnly affirm that I am not the
writer of the song/poem in question. 6. I state
that the annexures produced with this
affidavit are true copies of their originals. ”
(emphasis added)
5. By the impugned judgment and order, the learned
Single Judge rejected the petition by holding that as the
investigation is at a very nascent stage, interference
cannot be made in view of the decision of this Court in the
case of Neeharika Infrastructure Pvt. Ltd. v State of
1
Maharashtra .

1
2021 SCC Online SC 315
Criminal Appeal No.1545 of 2025 Page 4 of 54




SUBMISSIONS
6. The submission of the appellant in support of the
appeal is that none of the ingredients of the offences
alleged against the appellant are made out on the plain
reading of the complaint and the poem. It is pointed out in
the appeal that, as it usually happens, posting the video
on the social media site ‘X’ receives several responses,
some in favour, some against. Therefore, it cannot be said
that the poem caused social disharmony amongst the
people. It is submitted that the poem does not promote
disharmony or feelings of enmity, hatred or ill-will between
the various religious, racial, language or regional groups
and castes or communities. It is submitted that, on its
plain reading, it is about sacrificing oneself to fight for
rights and truth. The poem promotes non-violence and
preaches that one must suffer injustice with love. The
submission of the learned senior counsel appearing for the
appellant is that registering FIR based on the said poem
violates the appellant's fundamental right guaranteed
under Article 19(1)(a) of the Constitution. He submitted
that the police have shown insensitivity. Even the High
Court has not attempted to appreciate the message sought

to be conveyed by the poem.
7. The Learned Solicitor General of India has taken a
fair stand and has left it to the Court to make an
Criminal Appeal No.1545 of 2025 Page 5 of 54




appropriate decision. He, however, submitted that the tall
claim made by the appellant on oath that the poem's
author can be either Faiz Ahmed Faiz or Habib Jalib is
entirely wrong. He submitted that the said contention
raised by the appellant on oath has no basis at all. He
submitted that it is the obligation of the police to register
an FIR. The High Court has followed the law while rejecting
the appellant’s petition. Therefore, the criticism made by
the learned senior counsel for the appellant about the
approach of the High Court is not correct.
th
8. The office report of 7 February 2025 records that
nd
affidavit of dasti service on 2 respondent has been filed.
None appeared for the respondent.
CONSIDERATION OF SUBMISSIONS
WORDS SPOKEN
9. A broad English translation of the said poem reads
thus:
“ Those who are blood thirsty, listen
to us
If the fight for our rights is met with
injustice
We will meet that injustice with
love
If the drops flowing from a candle
are like a flame (Analogy: if the
tears from our face are like a flame)
We will use it to light up all paths
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If the bodies of our loved ones are a
threat to your throne
We swear by God that we will bury
our loved ones happily
Those who are blood thirsty, listen
to us. ”

10. On plain reading of the original Urdu version and its
English translation, the following conclusions can be
drawn:
a) This poem has nothing to do with any religion,
community, region or race;
b) By no stretch of imagination, the contents affect
national integration;
c) It does not jeopardise the sovereignty, unity,
integrity or security of India;
d) It suggests that while fighting to secure our rights
if we are met with injustice, we will face it with
love. We will use our tears as flames to light up all
paths;

e) It gives a warning to the throne (the rulers). It
states that if the bodies of our loved ones are a
threat to the rulers, we will bury our loved ones
happily;
f) It preaches non-violence. It says that if the fight
for our rights is met with injustice, we will meet
injustice with love. This gives a message that
Criminal Appeal No.1545 of 2025 Page 7 of 54




injustice should not be retaliated, but it should be
met with love;

g) The poem refers to the throne in the context of the
fight against injustice. The reference to the throne
is symbolic. It is a reference to an entity which is
responsible for causing injustice. It gives a
warning that if the bodies of loved ones are a
threat to the throne, we will happily accept the
deaths of our loved ones. It suggests that one
should be willing to sacrifice life in the fight
against injustice; and

h) Thus, the poem does not encourage violence. On
the contrary, it encourages people to desist from
resorting to violence and to face injustice with
love. It states that if our fight with injustice results
into the death of our near and dear ones, we would
be happy to bury their bodies.
WHETHER ANY OFFENCE IS MADE OUT
11. Now, let us turn to the FIR, the English translation of
which has been annexed to the petition. The relevant part
of the FIR reads thus:
“ According to Section 196, 197(1) 302 299,
57, 3(5) of the Indian Penal Code 2023, it is
in such a way that the Imran Pratapgarhi has
created a verified X Account named Imran
Pratapgarhi Shayarlmran on social media
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platform X with the username link
https://x.com/shayarimran?ss in the bio of
which is Official Twitter Account of Imran
Pratapgarhi | Member Of Parliament Rajya
Sabha | National Chairman @INCMinority
Member of @INCIndia Yash Bharti Awardee
Account Holder has recorded a 46-second
video of a mass marriage program at Rumi
Park Morkanda Road Kalavad Naka,
Jamnagar city, Jamnagar district, Gujarat
state, titled 'Jamnagar Gujarat Ke Ek
Samuhik Vivah Program Me ShirkatThi'
Khun Ke Pyaso Baat Suno Agar Haq Ki
Jabhanda Zulma Sa Hi, Hum Zulma Se Ishq
Nibha Deng Hum Zulma Se Ishq Nibha Deng
Gar Sammegiriya Atish Hai Har Raah Wo
Samma Jala Denge Gar Laash Hamare Apno
Ki, Khatra Hai Tumari Masnad Ka, Us Rab Ki
Kasam Haste Haste Kitni Laashe Dafna Deng
Hai Khun Ke Pyaso Uploading a video vyith
the words "Baat Sunohai Khun Ke Pyaaso
Baat Sun" and using provocative language
about the religion, caste and language of
Hindus, Muslims and other castes living in
India, promoting enmity between
different groups, making statements that
are detrimental to national unity, making
statements that are harmful to national
unity, making statements with the
intention of hurting religious feelings,
making religious insults, spreading the
video among the people with the intention
of causing shock, inciting others to
commit a crime.”
(emphasis added)

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12. The poem does not refer to any religion, caste or
language. It does not refer to persons belonging to any
religion. By no stretch of imagination, does it promote
enmity between different groups. We fail to understand
how the statements therein are detrimental to national
unity and how the statements will affect national unity. On
its plain reading, the poem does not purport to affect
anyone's religious feelings.
13. Now, let us examine whether any offence as alleged
is attracted. Section 196 of the BNS reads thus:
196. Promoting enmity between different
“
groups on grounds of religion, race, place of
birth, residence, language, etc., and doing
acts prejudicial to maintenance of
harmony
.—(1) Whoever—
( a ) by words, either spoken or written, or
by signs or by visible representations or
through electronic communication or
otherwise, promotes or attempts to
promote, on grounds of religion, race, place
of birth, residence, language, caste or
community or any other ground
whatsoever, disharmony or feelings of
enmity, hatred or ill-will between different
religious, racial, language or regional
groups or castes or communities; or
( ) commits any act which is prejudicial
b
to the maintenance of harmony between
different religious, racial, language or
regional groups or castes or communities,
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and which disturbs or is likely to disturb the
public tranquillity; or
( c ) organises any exercise, movement,
drill or other similar activity intending that
the participants in such activity shall use or
be trained to use criminal force or violence
or knowing it to be likely that the
participants in such activity will use or be
trained to use criminal force or violence, or
participates in such activity intending to
use or be trained to use criminal force or
violence or knowing it to be likely that the
participants in such activity will use or be
trained to use criminal force or violence,
against any religious, racial, language or
regional group or caste or community and
such activity for any reason whatsoever
causes or is likely to cause fear or alarm or
a feeling of insecurity amongst members of
such religious, racial, language or regional
group or caste or community,
shall be punished with imprisonment which
may extend to three years, or with fine, or
with both.
(2) Whoever commits an offence specified
in sub-section (1) in any place of worship or
in any assembly engaged in the
performance of religious worship or
religious ceremonies, shall be punished
with imprisonment which may extend to five
years and shall also be liable to fine. ”

14. The offence under Section 196 is attracted when the
words, either spoken or written, or by signs or visible
representations, promote enmity between different groups,
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on the grounds of religion, race, place of birth, residence,
language, caste or, community or any other ground. The
offence will be attracted when the words either spoken or
written, or signs or visible representation, promote or
attempt to promote disharmony or feelings of enmity,
hatred or ill-will between different religious, racial,
language or regional groups or castes or communities. On
a plain reading of the poem, we find that the same has
nothing to do with any religion, caste, community or any
particular group. The poem's words do not bring about or
promote disharmony or feelings of hatred or ill-will. It only
seeks to challenge the injustice made by the ruler. It is
impossible to say that the words used by the appellant
disturb or are likely to disturb public tranquility.
Therefore, neither clause (a) nor clause (b) of Section 196
(1) are attracted. There is no allegation against the
appellant of organising any exercise, movement, drill or
similar activity. There is no allegation against the appellant
that he uttered the words in any place of worship or in any
assembly engaged in the performance of religious worship
or religious ceremonies. Hence, clause (c) will have no
application. The appellant has put a video of a mass
marriage function, and in the background, the words are
uttered. Therefore, Section 196 can have no application.

Criminal Appeal No.1545 of 2025 Page 12 of 54




15. Section 197 reads thus:
“
197. Imputations, assertions prejudicial to
national integration.—(1) Whoever, by words
either spoken or written or by signs or by
visible representations or through electronic
communication or otherwise,—
( a ) makes or publishes any imputation
that any class of persons cannot, by reason
of their being members of any religious,
racial, language or regional group or caste or
community, bear true faith and allegiance to
the Constitution of India as by law
established or uphold the sovereignty and
integrity of India; or
( b ) asserts, counsels, advises,
propagates or publishes that any class of
persons shall, by reason of their being
members of any religious, racial, language or
regional group or caste or community, be
denied, or deprived of their rights as citizens
of India; or
( c ) makes or publishes any assertion,
counsel, plea or appeal concerning the
obligation of any class of persons, by reason
of their being members of any religious,
racial, language or regional group or caste or
community, and such assertion, counsel,
plea or appeal causes or is likely to cause
disharmony or feelings of enmity or hatred or
ill-will between such members and other
persons; or
( d ) makes or publishes false or
misleading information, jeopardising the
Criminal Appeal No.1545 of 2025 Page 13 of 54




sovereignty, unity and integrity or security of
India,
shall be punished with imprisonment which
may extend to three years, or with fine, or
with both.
(2) Whoever commits an offence specified in
sub-section (1) in any place of worship or in
any assembly engaged in the performance of
religious worship or religious ceremonies,
shall be punished with imprisonment which
may extend to five years and shall also be
liable to fine. ”
16. As stated earlier, the poem does not make or publish
any imputation and is not concerned with any religious,
racial, language, regional group, caste, or community. It
does not suggest that any class of persons have been
denied rights as citizens because they are members of a
religious, racial, language, regional group, caste, or
community. It does not make or publish any assertion,
counsel, plea or appeal likely to cause disharmony or
feeling of enmity or hatred or ill will. The poem does not
publish or make any false or misleading information.
17. Offence under Section 299 of the BNS is also alleged
against the appellant, which reads thus:
“
299. Deliberate and malicious acts,
intended to outrage religious feelings of any
class by insulting its religion or religious
beliefs
.—Whoever, with deliberate and
malicious intention of outraging the religious
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feelings of any class of citizens of India, by
words, either spoken or written, or by signs
or by visible representations or through
electronic means or otherwise, insults or
attempts to insult the religion or the religious
beliefs of that class, shall be punished with
imprisonment of either description for a term
which may extend to three years, or with fine,
”
or with both.
To say the least, it is ridiculous to say that the act of the
appellant is intended to outrage the religious feelings of
any class by insulting its religion or religious beliefs. The
poem only tells the rulers what the reaction will be if the
fight for rights is met with injustice.
18. Even offence under Section 302 of the BNS has been
alleged, which reads thus:
“
302. Uttering words, etc., with deliberate
intent to wound religious feelings of any
person.—Whoever, with the deliberate
intention of wounding the religious feelings of
any person, utters any word or makes any
sound in the hearing of that person or makes
any gesture in the sight of that person or
places any object in the sight of that person,
shall be punished with imprisonment of
either description for a term which may
extend to one year, or with fine, or with both. ”
An offence under Section 302 will be made out if any words
are uttered with the deliberate intention of wounding the
Criminal Appeal No.1545 of 2025 Page 15 of 54




religious feelings of any person. Even this section is not
applicable on its face.

19. Section 57 of the BNS is alleged to be applicable,
which reads thus:
“
57. Abetting commission of offence by public
or by more than ten persons
.—Whoever abets
the commission of an offence by the public
generally or by any number or class of
persons exceeding ten, shall be punished
with imprisonment of either description for a
term which may extend to seven years and
with fine. ”
We fail to understand, even if it is assumed that the
appellant has committed some offence, how he has abetted
the commission of an offence by the public generally or by
any number or class of persons exceeding ten.
OBLIGATION TO REGISTER A FIRST INFORMATION
REPORT
20. The question is whether in the facts of the case, it
was obligatory under sub-Section (1) of Section 173 of the
BNSS to register FIR. Section 173, which deals with
information in cognizable cases, reads thus:
“
173. Information in cognizable cases.—(1)
Every information relating to the commission
of a cognizable offence, irrespective of the area
where the offence is committed, may be given
Criminal Appeal No.1545 of 2025 Page 16 of 54




orally or by electronic communication to an
officer in charge of a police station, and if
given—
( i ) orally, it shall be reduced to writing by
him or under his direction, and be read over
to the informant; and every such information,
whether given in writing or reduced to writing
as aforesaid, shall be signed by the person
giving it;
( ii ) by electronic communication, it shall
be taken on record by him on being signed
within three days by the person giving it, and
the substance thereof shall be entered in a
book to be kept by such officer in such form
as the State Government may by rules
prescribe in this behalf:
Provided that if the information is given by the
woman against whom an offence under
Section 64, Section 65, Section 66,
Section 67, Section 68, Section 69,
Section 70, Section 71, Section 74,
Section 75, Section 76, Section 77,
Section 78, Section 79 or Section 124 of
the Bharatiya Nyaya Sanhita, 2023 is alleged
to have been committed or attempted, then
such information shall be recorded, by a
woman police officer or any woman officer:
Provided further that—
( a ) in the event that the person against
whom an offence under Section 64,
Section 65, Section 66, Section 67,
Section 68, Section 69, Section 70,
Section 71, Section 74, Section 75,
Section 76, Section 77, Section 78,
Section 79 or Section 124 of the Bharatiya
Nyaya Sanhita, 2023 is alleged to have been
committed or attempted, is temporarily or
Criminal Appeal No.1545 of 2025 Page 17 of 54




permanently mentally or physically disabled,
then such information shall be recorded by a
police officer, at the residence of the person
seeking to report such offence or at a
convenient place of such person's choice, in
the presence of an interpreter or a special
educator, as the case may be;
( b ) the recording of such information
shall be videographed;
( c ) the police officer shall get the
statement of the person recorded by a
Magistrate under clause ( a ) of sub-section (6)
of Section 183 as soon as possible.
(2) A copy of the information as recorded under
sub-section (1) shall be given forthwith, free of
cost, to the informant or the victim.
(3) Without prejudice to the provisions
contained in Section 175, on receipt of
information relating to the commission of any
cognizable offence, which is made punishable
for three years or more but less than seven
years, the officer in charge of the police station
may with the prior permission from an officer
not below the rank of Deputy Superintendent
of 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.
(4) Any person aggrieved by a refusal on the
part of an officer in charge of a police station
to record the information referred to in sub-
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section (1), may send the substance of such
information, in writing and by post, to the
Superintendent of Police concerned who, if
satisfied that such information discloses the
commission of a cognizable offence, shall
either investigate the case himself or direct an
investigation to be made by any police officer
subordinate to him, in the manner provided by
this Sanhita, and such officer shall have all the
powers of an officer in charge of the police
station in relation to that offence failing which
such aggrieved person may make an
application to the Magistrate. ”

Sub-Section (1) provides for giving information relating to
the commission of a cognizable offence. It may be given
orally or by electronic communication to the officer-in-
charge of a police station. If the information discloses the
commission of a cognizable offence, it is mandatory to
record the substance of the information in a book to be
kept by the officer in the form prescribed by the State
Government. No further inquiry can be made by the police
officer if the information discloses the commission of a
cognizable offence. Therefore, subject to the exception
carved out by sub-Section (3) of Section 173, which we will
deal with later, it is mandatory to record the information
in a book. Thus, it is mandatory to register the FIR if
information received discloses the commission of a
cognizable offence.
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21. Section 154 of the CrPC reads thus:
“
154. Information in cognizable cases.—(1)
Every information relating to the commission
of a cognizable offence, if given orally to an
officer in charge of a police station, shall be
reduced to writing by him or under his
direction, and be read over to the informant;
and every such information, whether given in
writing or reduced to writing as aforesaid,
shall be signed by the person giving it, and the
substance thereof shall be entered in a book to
be kept by such officer in such form as the
State Government may prescribe in this
behalf:
Provided that if the information is given
by the woman against whom an offence under
Section 326-A, Section 326-B, Section 354,
Section 354-A, Section 354-B, Section 354-C,
Section 354-D, Section 376, Section 376-A,
Section 376-AB, Section 376-B, Section 376-
C, Section 376-D, Section 376-DA,
Section 376-DB, Section 376-E or
Section 509 of the Indian Penal Code (45 of
1860) is alleged to have been committed or
attempted, then such information shall be
recorded, by a woman police officer or any
woman officer:
Provided further that—
( a ) in the event that the person against
whom an offence under Section 354,
Section 354-A, Section 354-B, Section 354-C,
Section 354-D, Section 376, Section 376-A,
Section 376-AB, Section 376-B, Section 376-
C, Section 376-D, Section 376-DA,
Section 376-DB], Section 376-E or
Section 509 of the Indian Penal Code (45 of
1860) is alleged to have been committed or
attempted, is temporarily or permanently
mentally or physically disabled, then such
information shall be recorded by a police
officer, at the residence of the person seeking
Criminal Appeal No.1545 of 2025 Page 20 of 54




to report such offence or at a convenient place
of such person's choice, in the presence of an
interpreter or a special educator, as the case
may be;
( b ) the recording of such information
shall be videographed;
( c ) the police officer shall get the
statement of the person recorded by a Judicial
Magistrate under clause ( a ) of sub-section (5-
A) of Section 164 as soon as possible.
(2) A copy of the information as recorded
under sub-section (1) shall be given forthwith,
free of cost, to the informant.
(3) Any person aggrieved by a refusal on
the part of an officer in charge of a police
station to record the information referred to in
sub-section (1) may send the substance of
such information, in writing and by post, to
the Superintendent of Police concerned who, if
satisfied that such information discloses the
commission of a cognizable offence, shall
either investigate the case himself or direct an
investigation to be made by any police officer
subordinate to him, in the manner provided by
this Code, and such officer shall have all the
powers of an officer in charge of the police
station in relation to that offence. ”


22. Sub-Section (1) of Section 173 of BNSS is
substantially the same as Sub-Section (1) of Section 154
of the Code of Criminal Procedure, 1973 (for short, ‘the
CrPC’). Therefore, the law laid down by this Court in the
2
case of Lalita Kumari v. Govt. of U.P. on Section 154 of
the CrPC will be relevant. Paragraph 120 of the said
decision containing conclusions/directions reads thus:

2
(2014) 2 SCC 1
Criminal Appeal No.1545 of 2025 Page 21 of 54




“120. In view of the aforesaid discussion, we
hold:
120.1. The registration of FIR is
mandatory under Section 154 of the Code,
if the information discloses commission of
a cognizable offence and no preliminary
inquiry is permissible in such a situation.
120.2. If the information received does
not disclose a cognizable offence but
indicates the necessity for an inquiry, a
preliminary inquiry may be conducted
only to ascertain whether cognizable
offence is disclosed or not.
120.3. If the inquiry discloses the
commission of a cognizable offence, the FIR
must be registered. In cases where
preliminary inquiry ends in closing the
complaint, a copy of the entry of such closure
must be supplied to the first informant
forthwith and not later than one week. It
must disclose reasons in brief for closing the
complaint and not proceeding further.
120.4. The police officer cannot avoid his
duty of registering offence if cognizable
offence is disclosed. Action must be taken
against erring officers who do not register the
FIR if information received by him discloses a
cognizable offence.
120.5. The scope of preliminary inquiry is
not to verify the veracity or otherwise of the
information received but only to ascertain
whether the information reveals any
cognizable offence.

Criminal Appeal No.1545 of 2025 Page 22 of 54




120.6. As to what type and in which cases
preliminary inquiry is to be conducted will
depend on the facts and circumstances of
each case. The category of cases in which
preliminary inquiry may be made are as
under:
( a ) Matrimonial disputes/family disputes
( b ) Commercial offences
( c ) Medical negligence cases
( d ) Corruption cases
( e ) Cases where there is abnormal
delay/laches in initiating criminal
prosecution, for example, over 3 months'
delay in reporting the matter without
satisfactorily explaining the reasons for
delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may
warrant preliminary inquiry.
120.7. While ensuring and protecting the
rights of the accused and the complainant, a
preliminary inquiry should be made time-
bound and in any case it should not exceed
fifteen days generally and in exceptional
cases, by giving adequate reasons, six weeks'
time is provided. The fact of such delay and
the causes of it must be reflected in the
General Diary entry.
120.8. Since the General Diary/Station
Diary/Daily Diary is the record of all
information received in a police station, we
direct that all information relating to
cognizable offences, whether resulting in
registration of FIR or leading to an inquiry,
must be mandatorily and meticulously
Criminal Appeal No.1545 of 2025 Page 23 of 54




reflected in the said diary and the decision to
conduct a preliminary inquiry must also be
reflected, as mentioned above. ”
(emphasis added)
23. Section 154 of the CrPC does not provide for making
any preliminary inquiry. However, as held in the case of
2
Lalita Kumari , a preliminary inquiry is permissible if the
information received does not disclose a cognizable offence
and indicates the necessity for an inquiry. A preliminary
inquiry must be conducted only to ascertain whether a
cognizable offence is disclosed. However, sub-Section (3) of
Section 173 of the BNSS makes a significant departure
from Section 154 of the CrPC. It provides that when
information relating to the commission of a cognizable
offence which is made punishable for 3 years or more but
less than 7 years is received by an officer-in-charge of a
police station, with the prior permission of a superior
officer as mentioned therein, the police officer is
empowered to conduct a preliminary inquiry to ascertain
whether there exists a prima facie case for proceeding in
the matter. However, under Section 154 of the CrPC, as
2
held in the case of Lalita Kumari , only a limited
preliminary inquiry is permissible to ascertain whether the
information received discloses a cognizable offence.
Moreover, a preliminary inquiry can be made under the
CrPC only if the information does not disclose the
Criminal Appeal No.1545 of 2025 Page 24 of 54




commission of a cognizable offence but indicates the
necessity for an inquiry. Sub-Section (3) of Section 173 of
the BNSS is an exception to sub-Section (1) of Section 173.
In the category of cases covered by sub-Section (3), a police
officer is empowered to make a preliminary inquiry to
ascertain whether a prima facie case is made out for
proceeding in the matter even if the information received
discloses commission of any cognizable offence. That is
very apparent as sub-Section (3) of Section 173 refers
explicitly to receiving information relating to the
commission of a cognizable offence. Therefore, in a case
where sub-Section (3) of Section 173 is applicable, even if
the information pertaining to the commission of any
cognizable offence is received, an inquiry can be conducted
to ascertain whether a prima facie case exists for
proceeding in the matter. The intention appears to be to
prevent the registration of FIRs in frivolous cases where
punishment is up to 7 years, even if the information
discloses the commission of the cognizable offence.
However, under Section 154 of the CrPC, the inquiry
permitted by paragraph 120.2 of the decision in the case
2
of Lalita Kumari is limited only to ascertain whether the
cognizable offence is disclosed.
24. Under sub-Section (3) of Section 173 of the BNSS,
after holding a preliminary inquiry, if the officer comes to
a conclusion that a prima facie case exists to proceed, he
Criminal Appeal No.1545 of 2025 Page 25 of 54




should immediately register an FIR and proceed to
investigate. But, if he is of the view that a prima facie case
is not made out to proceed, he should immediately inform
the first informant/complainant so that he can avail a
remedy under sub-Section (4) of Section 173.
25. Before we go into the applicability of sub-Section (3)
of Section 173 of the BNSS to the facts of the case, we must
deal with sub-Section (1) of Section 173. Take a case where
a person approaches an officer-in-charge of a police station
either personally or by electronic communication and
alleges that he has seen ‘A’ assaulting ‘X’ with a stick. If
the injury caused is simple, it will be an offence punishable
under Section 115 (2) of the BNS. As per the first Schedule
of the BNSS, it is a non-cognizable offence. Therefore,
based on such information, FIR cannot be registered. If
grievous hurt is caused, it will be an offence punishable
under Section 117 (2) of the BNS, which is a cognizable
offence. Therefore, the allegations made in the information
furnished to an officer-in-charge of a police station must
be examined by the officer only with a view to ascertain
whether a cognizable offence is made out. Taking the
information as correct, the officer has to determine
whether it makes out a case of the commission of a
cognizable offence. If the allegation makes out a case of a
cognizable offence, unless the offence falls in sub-Section
(3) of Section 173, it is mandatory to register FIR.
Criminal Appeal No.1545 of 2025 Page 26 of 54




26. Coming back to the offence punishable under Section
196 of the BNS to decide whether the words, either spoken
or written or by sign or by visible representations or
through electronic communication or otherwise, lead to
the consequences provided in the Section. The police
officer to whom information is furnished will have to read
or hear the words written or spoken, and by taking the
same as correct, decide whether an offence under Section
196 is made out. Reading of written words, or hearing
spoken words will be necessary to determine whether the
contents make out a case of the commission of a
cognizable offence. The same is the case with offences
punishable under Sections 197, 299 and 302 of the BNS.
Therefore, to ascertain whether the information received
by an officer-in-charge of the police station makes out a
cognizable offence, the officer must consider the meaning
of the spoken or written words. This act on the part of the
police officer will not amount to making a preliminary
inquiry which is not permissible under sub-Section (1) of
Section 173.
27. We will give an example. A person utters the following
words. “If the rulers attack me, I will not retaliate and, on
the contrary, face the attack with love. If I do that, it will
lead to the defeat of the rulers.” If the person who furnishes
information, alleges that these words are spoken or written
to promote enmity between different groups as provided in
Criminal Appeal No.1545 of 2025 Page 27 of 54




Section 196, while deciding whether the information is of
commission of a cognizable offence, the officer concerned
will have to read and understand the meaning of the
alleged spoken words. This exercise does not amount to
making a preliminary inquiry which is prohibited under
sub-Section (1) of Section 173 of BNSS.
28. Sub-Section (3) of Section 173 of the BNSS confers a
discretion on the officer receiving information relating to
the commission of a cognizable offence to conduct a
preliminary inquiry to ascertain whether a prima facie case
exists to proceed. This option is available when the offence
alleged is made punishable for 3 years or more but less
than 7 years. In the facts of the case, all the offences except
the offence under Section 57 of the BNS are punishable by
imprisonment for less than 7 years. Section 57, on the face
of it, is not applicable. Therefore, this option was also
available to the police officer in the present case. The
officer did not exercise the said option.
29. At this stage, we may refer to clause (a) of Article 51-
A of the Constitution, which reads thus:
“
51-A. Fundamental duties.—It shall be
the duty of every citizen of India—
(a) to abide by the Constitution and
respect its ideals and institutions, the
National Flag and the National Anthem;
Criminal Appeal No.1545 of 2025 Page 28 of 54




………………………………………………….. ”

The police officers must abide by the Constitution and
respect its ideals. The philosophy of the Constitution and
its ideals can be found in the preamble itself. The preamble
lays down that the people of India have solemnly resolved
to constitute India into a sovereign, socialist, secular,
democratic republic and to secure all its citizens liberty of
thought, expression, belief, faith and worship. Therefore,
liberty of thoughts and expression is one of the ideals of
our Constitution. Article 19(1)(a) confers a fundamental
right on all citizens to freedom of speech and expression.
The police machinery is a part of the State within the
meaning of Article 12 of the Constitution. Moreover, the
police officers being citizens, are bound to abide by the
Constitution. They are bound to honour and uphold
freedom of speech and expression conferred on all citizens.
Clause (2) of Article 19 of the Constitution carves out an
exception to the fundamental right guaranteed under sub-
clause (a) of clause (1) of Article 19. If there is a law covered
by clause (2), its operation remains unaffected by sub-
clause (a) of clause (1). We must remember that laws
covered by the clause (2) are protected by way of an
exception provided they impose a reasonable restriction.
Article 19(2) is an exception to the freedom enumerated
under Article 19(1)(a). The reasonable restrictions provided
Criminal Appeal No.1545 of 2025 Page 29 of 54




for in Article 19(2) must remain reasonable and not
fanciful and oppressive. Article 19(2) cannot be allowed to
overshadow the substantive rights under Article 19(1),
including the right to freedom of speech and expression.
Therefore, when an allegation is of the commission of an
offence covered by the law referred to in clause (2) of Article
19, if sub-Section (3) of Section 173 is applicable, it is
always appropriate to conduct a preliminary inquiry to
ascertain whether a prima facie case is made out to
proceed against the accused. This will ensure that the
fundamental rights guaranteed under sub-clause (a) of
clause (1) of Article 19 remain protected. Therefore, in such
cases, the higher police officer referred to in sub-Section
(3) of Section 173 must normally grant permission to the
police officer to conduct a preliminary inquiry. Therefore,
when the commission of cognizable offences is alleged,
where punishment is for imprisonment up to 7 years,
which is based on spoken or written words, it will always
be appropriate to exercise the option under sub-Section (3)
of Section 173 and conduct a preliminary inquiry to
ascertain whether there exists a prima facie case to
proceed. If an option under sub-Section (3) is not exercised
by the police officer in such a case, he may end up
registering an FIR against a person who has exercised his
fundamental right under Article 19 (1)(a) even though
clause (2) of Article 19 is not attracted. If, in such cases,
Criminal Appeal No.1545 of 2025 Page 30 of 54




the option under sub-Section (3) of Section 173 is not
exercised, it will defeat the very object of incorporating
sub-Section (3) of Section 173 of the BNSS and will also
defeat the obligation of the police under Article 51-A (a).
30. Even while dealing with the performance of an
obligation under sub-Section (1) of Section 173, where the
commission of the offence is based on spoken or written
words, the police officer concerned will have to keep in
mind the fundamental rights guaranteed under Article
19(1)(a) read with an exception carved out under clause (2)
of Article 19. The reason is that he is under an obligation
to abide by the Constitution and to respect the ideals
under the Constitution. The Constitution is more than 75
years old. By this time, the police officers ought to have
been sensitized about their duty of abiding by the
Constitution and respecting the ideals of the Constitution.
If the police officers are not aware of these obligations, the
State must ensure that they are educated and sensitized
by starting massive training programs.
31. In the facts of the case, even without taking recourse
to sub-Section (3) of Section 173 of the BNSS, the
information furnished to the police officer did not attract
the offences punishable under Sections 196, 197, 299 and
302 of the BNS.

Criminal Appeal No.1545 of 2025 Page 31 of 54




STANDARD TO BE APPLIED
32. At this stage, we cannot resist the temptation of
quoting what Bose and Puranik, JJ., authored as the
Judges of the erstwhile Nagpur High Court. In the case of
Bhagwati Charan Shukla v. Provincial Government,
3
C.P. & Berar , in paragraph 67, it is held thus:

3
1946 SCC OnLine MP 5
Criminal Appeal No.1545 of 2025 Page 32 of 54




therefore to the extent of the formula the two
things are the same. The only difference is
that under the Press Act we have to consider
not only whether there is sedition in fact but
also whether the words tend, directly or
indirectly, to excite to sedition and whether
they are intended or are likely to produce that
effect. We pause to observe that here, as in
the case of reasonable doubt in criminal
cases, and as in the case of putting in fear
of hurt in a matter of assault, we must use
the standards of reasonable, strong-
minded, firm and courageous men, and
not those of weak and vacillating minds,
nor of those who scent danger in every
hostile point of view. Using those standards
we hold as a fact that the effects apprehended
by the Crown and required by the section are
not likely to be caused by this article, nor do
the words used, viewed in their proper
setting, tend to cause that effect. The paper
is in English. It has a limited circulation. It is
read by those who know and understand
English. It is a party paper and is read mainly
by persons who are politically minded. They
are aware of contemporary political thought
and occurrences. They realise as well as any
one else that neither His Excellency the
Governor nor his advisers went round
shooting and killing persons. They know that
these acts were done by the troops and by the
police. They know that there was a demand
for an impartial investigation and a judicial
enquiry. They know that the demand was
refused and they know that the whole
complaint, so far as Government is
Criminal Appeal No.1545 of 2025 Page 33 of 54

33. What is held by Bose and Puranik, JJ. has been
quoted with approval in at least two cases. The first such
case is in the decision of Manzar Sayeed Khan v. State
4
of Maharashtra . The second case is the decision in the
5
case of Ramesh v. Union of India . Finally, the view taken
by Bose and Puranil,JJ., as the Judges of Nagpur High
Court, is again quoted with approval by this Court in the
6
case of Javed Ahmad Hajam v. State of Maharashtra
6 ,
. This Court in the case of Javed Ahmad Hajam was
dealing with an offence punishable under Section 153-A of
the IPC. Section 153-A of the IPC is pari materia with

4
(2007) 5 SCC 1
5
(1988) 1 SCC 668
6
(2024) 4 SCC 156

Criminal Appeal No.1545 of 2025 Page 34 of 54




Section 196 of the BNS. The only difference is that the
words ‘or through electric communication’ have been
added in clause (a) of Section 196 of the BNS, which were
not in clause (a) of Section 153-A of the IPC. When an
offence punishable under Section 196 of BNS is alleged,
the effect of the spoken or written words will have to be
considered based on standards of reasonable, strong-
minded, firm and courageous individuals and not based
on the standards of people with weak and oscillating
minds. The effect of the spoken or written words cannot be
judged on the basis of the standards of people who always
have a sense of insecurity or of those who always perceive
criticism as a threat to their power or position.
INGREDIENT OF MENS REA
4
34. In the case of Manzar Sayeed Khan and the case
7
of Patricia Mukhim v. State of Meghalaya , the
ingredient of mens rea has been read into Section 153-A of
IPC by this Court. Paragraphs 8 to 14 of the decision in
6,
the case of Javed Ahmad Hajam which analyses both
the above decisions, read thus:
“8. This Court in Manzar Sayeed Khan referred
to the view taken by Vivian Bose, J., as a Judge
of the erstwhile Nagpur High Court in Bhagwati
Charan Shukla v. Provincial Govt. A Division
Bench of the High Court dealt with the offence

7
(2021) 15 SCC 35
Criminal Appeal No.1545 of 2025 Page 35 of 54

Criminal Appeal No.1545 of 2025 Page 36 of 54




interest of sovereignty and integrity of India,
security of the State, friendly relations with
foreign States, public order, decency or morality
or in relation to contempt of Court, defamation
or incitement to an offence. Speech crime is
punishable under Section 153-AIPC. Promotion
of enmity between different groups on grounds
of religion, race, place of birth, residence,
language, etc. and doing acts prejudicial to
maintenance of harmony is punishable with
imprisonment which may extend to three years
or with fine or with both under Section 153-A.
As we are called upon to decide whether a prima
facie case is made out against the appellant for
committing offences under Sections 153-A and
505(1)( c ), it is relevant to reproduce the
provisions which are as follows:
*
9 . Only where the written or spoken words have
the tendency of creating public disorder or
disturbance of law and order or affecting public
tranquillity, the law needs to step in to prevent
such an activity. The intention to cause disorder
or incite people to violence is the sine qua non of
the offence under Section 153-AIPC and the
prosecution has to prove the existence of mens
rea in order to succeed .
10 . The gist of the offence under Section 153-
AIPC is the intention to promote feelings of
enmity or hatred between different classes of
people . The intention has to be judged primarily
by the language of the piece of writing and the
circumstances in which it was written and
published. The matter complained of within the
ambit of Section 153-A must be read as a whole.
Criminal Appeal No.1545 of 2025 Page 37 of 54




One cannot rely on strongly worded and
isolated passages for proving the charge nor
indeed can one take a sentence here and a
sentence there and connect them by a
meticulous process of inferential reasoning.”
(emphasis in original and supplied)
10. Now, coming back to Section 153-A, clause
( a ) of sub-section (1) of Section 153-AIPC is
attracted when by words, either spoken or
written or by signs or by visible representations
or otherwise, an attempt is made to promote
disharmony or feelings of enmity, hatred or ill
will between different religious, racial, language
or regional groups or castes or communities.
The promotion of disharmony, enmity, hatred
or ill will must be on the grounds of religion,
race, place of birth, residence, language, caste,
community or any other analogous grounds.
Clause ( b ) of sub-section (1) of Section 153-
AIPC will apply only when an act is committed
which is prejudicial to the maintenance of
harmony between different religious, racial,
language or regional groups or castes or
communities and which disturbs or is likely to
disturb the public tranquillity.
11. Now, coming to the words used by the
appellant on his WhatsApp status, we may note
here that the first statement is that August 5 is
a Black Day for Jammu and Kashmir. 5-8-2019
is the day on which Article 370 of the
Constitution of India was abrogated, and two
separate Union Territories of Jammu and
Kashmir were formed. Further, the appellant
has posted that “Article 370 was abrogated, we
are not happy”. On a plain reading, the
Criminal Appeal No.1545 of 2025 Page 38 of 54




appellant intended to criticise the action of the
abrogation of Article 370 of the Constitution of
India. He has expressed unhappiness over the
said act of abrogation. The aforesaid words do
not refer to any religion, race, place of birth,
residence, language, caste or community. It is a
simple protest by the appellant against the
decision to abrogate Article 370 of the
Constitution of India and the further steps
taken based on that decision. The Constitution
of India, under Article 19(1)( a ), guarantees
freedom of speech and expression. Under the
said guarantee, every citizen has the right to
offer criticism of the action of abrogation of
Article 370 or, for that matter, every decision of
the State. He has the right to say he is unhappy
with any decision of the State.
12. In Manzar Sayeed Khan , this Court has
read “intention” as an essential ingredient
of the said offence. The alleged objectionable
words or expressions used by the appellant, on
its plain reading, cannot promote disharmony
or feelings of enmity, hatred or ill will between
different religious, racial, language or regional
groups or castes or communities. The
WhatsApp status of the appellant has a
photograph of two barbed wires, below which it
AUGUST BLACK DAY
is mentioned that “ 5 — —
JAMMU KASHMIR
& ”. This is an expression of his
individual view and his reaction to the
abrogation of Article 370 of the Constitution of
India. It does not reflect any intention to do
something which is prohibited under Section
153-A. At best, it is a protest, which is a part of
Criminal Appeal No.1545 of 2025 Page 39 of 54




his freedom of speech and expression
guaranteed by Article 19(1)( a ).
13. Every citizen of India has a right to be
critical of the action of abrogation of Article 370
and the change of status of Jammu and
Kashmir. Describing the day the abrogation
happened as a “Black Day” is an expression of
protest and anguish. If every criticism or protest
of the actions of the State is to be held as an
offence under Section 153-A, democracy, which
is an essential feature of the Constitution of
India, will not survive.
14. The right to dissent in a legitimate and
lawful manner is an integral part of the rights
guaranteed under Article 19(1)( a ). Every
individual must respect the right of others to
dissent. An opportunity to peacefully protest
against the decisions of the Government is an
essential part of democracy. The right to dissent
in a lawful manner must be treated as a part of
the right to lead a dignified and meaningful life
guaranteed by Article 21. But the protest or
dissent must be within four corners of the
modes permissible in a democratic set up. It is
subject to reasonable restrictions imposed in
accordance with clause (2) of Article 19. In the
present case, the appellant has not at all
crossed the line. ”

Hence, will have to be read into Section 196 of
mens rea
the BNS. In this case, looking to the text of the words
spoken and the context in which those were spoken, it is
impossible to attribute any to the appellant.
mens rea
Criminal Appeal No.1545 of 2025 Page 40 of 54




IMPUGNED JUDGMENT
35. Now, we come to the impugned judgment. The
decisions of this Court in the case of Manzar Sayeed
4 6
Khan and Javed Ahmad Hajam were relied upon by the
appellant before the High Court. Therefore, the High Court
was aware that it was dealing with the appellant's
fundamental right guaranteed under Article 19 (1)(a) of the
Constitution. The High Court quoted both decisions
extensively in the judgment. What is surprising is the
finding recorded by the High Court. The finding on merits
is only in paragraph 22 of the judgment, which reads thus:
“ 22. Looking to the tenor of the poem, it
certainly indicates something about the
throne. The responses received to the said
post by other persons also indicate that
message was posted in a manner which
certainly create disturbance in social
harmony. It is expected from any citizen of
India that he should behave in a manner
where the communal harmony or social
harmony should not be disturbed, and the
petitioner, who is a Member of Parliament,
is expected to behave in some more
restricted manner as he is expected to know
more about the repercussions of such post. ”
36. In the instant case, as we have seen, no prima facie
case can be said to have been made out against the
appellant qua the sections invoked. In such a case,
registration of the FIR appears to be a very mechanical
Criminal Appeal No.1545 of 2025 Page 41 of 54




exercise and is a clear abuse of the process of law. In fact,
registration of such FIR virtually borders on perversity. We
are surprised that this very crucial aspect escaped the
notice of the High Court. The High Court ought to have
nipped the mischief at the threshold itself.
37. We fail to understand how the High Court concluded
that the message was posted in a manner that would
certainly disturb social harmony. Thereafter, the High
Court gave a reason that the investigation was at a nascent
stage. There is no absolute rule that when the investigation
is at a nascent stage, the High Court cannot exercise its
jurisdiction to quash an offence by exercising its
jurisdiction under Article 226 of the Constitution of India
or under Section 482 of the CrPC equivalent to Section 528
of the BNSS. When the High Court, in the given case, finds
that no offence was made out on the face of it, to prevent
abuse of the process of law, it can always interfere even
though the investigation is at the nascent stage. It all
depends on the facts and circumstances of each case as
well as the nature of the offence. There is no such blanket
rule putting an embargo on the powers of the High Court
to quash FIR only on the ground that the investigation was
at a nascent stage. If such embargo is taken as an absolute
rule, it will substantially curtail the powers of the High
Criminal Appeal No.1545 of 2025 Page 42 of 54




Court which have been laid down and recognised by this
8
Court in the case of State of Haryana v. Bhajan Lal .
IMPORTANCE OF THE FREEDOM OF EXPRESSION
AND THE DUTY OF THE COURTS
38. Free expression of thoughts and views by individuals
or groups of individuals is an integral part of a healthy,
civilised society. Without freedom of expression of
thoughts and views, it is impossible to lead a dignified life
guaranteed by Article 21 of the Constitution. In a healthy
democracy, the views, opinions or thoughts expressed by
an individual or group of individuals must be countered by
expressing another point of view. Even if a large number
of persons dislike the views expressed by another, the right
of the person to express the views must be respected and
protected. Literature including poetry, dramas, films,
stage shows, satire and art, make the life of human beings
more meaningful. The Courts are duty-bound to uphold
and enforce fundamental rights guaranteed under the
Constitution of India. Sometimes, we, the Judges, may not
like spoken or written words. But, still, it is our duty to
uphold the fundamental right under Article 19 (1)(a). We
Judges are also under an obligation to uphold the
Constitution and respect its ideals. If the police or
executive fail to honour and protect the fundamental

8
1992 Supp (1) SCC 335
Criminal Appeal No.1545 of 2025 Page 43 of 54




rights guaranteed under Article 19 (1)(a) of the
Constitution, it is the duty of the Courts to step in and
protect the fundamental rights. There is no other
institution which can uphold the fundamental rights of the
citizens.
39. Courts, particularly the constitutional Courts, must
be at the forefront to zealously protect the fundamental
rights of the citizens. It is the bounden duty of the Courts
to ensure that the Constitution and the ideals of the
Constitution are not trampled upon. Endeavour of the
courts should always be to protect and promote the
fundamental rights, including the freedom of speech and
expression, which is one of the most cherished rights a
citizen can have in a liberal constitutional democracy. The
Courts must not be seen to regulate or stifle the freedom
of speech and expression. As a matter of fact, the Courts
must remain ever vigilant to thwart any attempt to
undermine the Constitution and the constitutional values,
including the freedom of speech and expression.
40. Before we part with this judgment, we must refer to
two important judgments. More than two decades ago, a
Full Bench of the Bombay High Court was examining an
order of the Government of Maharashtra directing
forfeiture of all copies, manuscripts etc. of a play called
Mee Nathuram Godse Boltoy in Anand Chintamani
Criminal Appeal No.1545 of 2025 Page 44 of 54




9
Dighe and anr. Vs. State of Maharashtra and ors. .
While quashing the order of forfeiture passed by the
Government of Maharashtra, Justice Dr. D.Y.
Chandrachud (as he then was) speaking for the Bench
observed that Government in that particular case seemed
to have acted in the wake of the criticism voiced against
the play and of the sense of outrage of those who believed
that the play unfairly criticized the father of the nation. He
highlighted the eternal values on which the Constitution
of a democracy is founded. Acceptance of the freedom to
express a view which may not accord with the mainstream
are cardinal values. A society wedded to the rule of law
cannot trample upon the rights of those who assert views
which may be regarded as unpopular or contrary to the
views shared by the majority. Right of the playwright, of
the artist, writer and of the poet will be reduced to husk if
the freedom to portray a message – whether it be in canvas,
prose or verse – is to depend upon the popular perception
of the acceptability of that message. Popular perceptions
cannot override constitutional values such as the
guarantee of freedom. Relevant portion of the aforesaid
judgment is extracted hereunder with approval:
“ 19. …….But, it is important to realise that
there are eternal values on which the
Constitution of a democracy is founded.

9
2001 SCC OnLine Bom 891
Criminal Appeal No.1545 of 2025 Page 45 of 54




Tolerance of a diversity of view points
and the acceptance of the freedom to
express of those whose thinking may not
accord with the mainstream are cardinal
values which lie at the very foundation of
a democratic form of Government. A
society wedded to the rule of law, cannot
trample upon the rights of those who
assert views which may be regarded as
unpopular or contrary to the views
shared by a majority. The law does not
have to accept the views which have been
expressed by the petitioner in the play in
order to respect the right of the
petitioner as a playwright to express
those views. Respect for and tolerance of
a diversity of viewpoints is what
ultimately sustains a democratic society
and Government. The right of the
playwright, of the artist, writer and of the
poet will be reduced to husk if the
freedom to portray a message - whether
it be in canvas, prose or verse - is to
depend upon the popular perception of
the acceptability of that message.
Popular perceptions, however strong
cannot override values which the
constitution embodies as guarantees of
freedom in what was always intended to
be a free society.”
(emphasis added)
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10
41. In Shreya Singhal v. Union of India , this Court
was examining the vires of Section 66A of the Information
Technology Act, 2000 which provided for punishment for
sending offensive messages through communication
service etc. In the above context the Bench referred to
Article 19(1)(a), Article 19(2), Preamble to the Constitution
of India and the previous decisions of this Court and after
a threadbare analysis observed that when it comes to
democracy, liberty of thought and expression is a cardinal
value that is of paramount significance under our
constitutional scheme. It is one of the most basic human
rights.
42. Following is the summary of our conclusions:
(i) Sub-Section (3) of Section 173 of the BNSS
makes a significant departure from Section 154
of CrPC. It provides that when information
relating to the commission of a cognizable offence
which is made punishable for 3 years or more but
less than 7 years is received by an officer-in-
charge of a police station, with the prior
permission of a superior officer as mentioned
therein, the police officer is empowered to
conduct a preliminary inquiry to ascertain
whether there exists a case for
prima facie

10
(2015) SCC 1
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proceeding in the matter. However, under
Section 154 of the CrPC, as held in the case of
2
Lalita Kumari , only a limited preliminary
inquiry is permissible to ascertain whether the
information received discloses a cognizable
offence. Moreover, a preliminary inquiry can be
made under the CrPC only if the information does
not disclose the commission of a cognizable
offence but indicates the necessity for an inquiry.
Sub-Section (3) of Section 173 of the BNSS is an
exception to sub-Section (1) of Section 173. In the
category of cases covered by sub-Section (3), a
police officer is empowered to make a preliminary
inquiry to ascertain whether a prima facie case is
made out for proceeding in the matter even if the
information received discloses commission of any
cognizable offence.
(ii) Under sub-Section (3) of Section 173 of the
BNSS, after holding a preliminary inquiry, if the
officer comes to a conclusion that a prima facie
case exists to proceed, he should immediately
register an FIR and proceed to investigate. But, if
he is of the view that a prima facie case is not
made out to proceed, he should immediately
inform the first informant/complainant so that
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he can avail a remedy under sub-Section (4) of
Section 173.
(iii) In case of the offence punishable under Section
196 of the BNS to decide whether the words,
either spoken or written or by sign or by visible
representations or through electronic
communication or otherwise, lead to the
consequences provided in the Section, the police
officer to whom information is furnished will have
to read or hear the words written or spoken, and
by taking the same as correct, decide whether an
offence under Section 196 is made out. Reading
of written words, or hearing spoken words will be
necessary to determine whether the contents
make out a case of the commission of a
cognizable offence. The same is the case with
offences punishable under Sections 197, 299 and
302 of BNS. Therefore, to ascertain whether the
information received by an officer-in-charge of
the police station makes out a cognizable offence,
the officer must consider the meaning of the
spoken or written words. This act on the part of
the police officer will not amount to making a
preliminary inquiry which is not permissible
under sub-Section (1) of Section 173.
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(iv) The police officers must abide by the
Constitution and respect its ideals. The
philosophy of the Constitution and its ideals can
be found in the preamble itself. The preamble
lays down that the people of India have solemnly
resolved to constitute India into a sovereign,
socialist, secular, democratic republic and to
secure all its citizens liberty of thought,
expression, belief, faith and worship. Therefore,
liberty of thought and expression is one of the
ideals of our Constitution. Article 19(1)(a) confers
a fundamental right on all citizens to freedom of
speech and expression. The police machinery is
a part of the State within the meaning of Article
12 of the Constitution. Moreover, the police
officers being citizens, are bound to abide by the
Constitution. They are bound to honour and
uphold freedom of speech and expression
conferred on all citizens.
(v) Clause (2) of Article 19 of the Constitution carves
out an exception to the fundamental right
guaranteed under sub-clause (a) of clause (1) of
Article 19. If there is a law covered by clause (2),
its operation remains unaffected by sub-clause
(a) of clause (1). We must remember that laws
covered by the clause (2) are protected by way of
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an exception provided they impose a reasonable
restriction. Therefore, when an allegation is of the
commission of an offence covered by the law
referred to in clause (2) of Article 19, if sub-
Section (3) of Section 173 is applicable, it is
always appropriate to conduct a preliminary
inquiry to ascertain whether a prima facie case is
made out to proceed against the accused. This
will ensure that the fundamental rights
guaranteed under sub-clause (a) of clause (1) of
Article 19 remain protected. Therefore, in such
cases, the higher police officer referred to in sub-
Section (3) of Section 173 must normally grant
permission to the police officer to conduct a
preliminary inquiry.
(vi) When an offence punishable under Section 196
of BNS is alleged, the effect of the spoken or
written words will have to be considered based on
standards of reasonable, strong-minded, firm
and courageous individuals and not based on the
standards of people with weak and oscillating
minds. The effect of the spoken or written words
cannot be judged on the basis of the standards of
people who always have a sense of insecurity or
of those who always perceive criticism as a threat
to their power or position.
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(vii) There is no absolute rule that when the
investigation is at a nascent stage, the High
Court cannot exercise its jurisdiction to quash an
offence by exercising its jurisdiction under Article
226 of the Constitution of India or under Section
482 of the CrPC equivalent to Section 528 of the
BNSS. When the High Court, in the given case,
finds that no offence was made out on the face of
it, to prevent abuse of the process of law, it can
always interfere even though the investigation is
at the nascent stage. It all depends on the facts
and circumstances of each case as well as the
nature of the offence. There is no such blanket
rule putting an embargo on the powers of the
High Court to quash FIR only on the ground that
the investigation was at a nascent stage.
(viii) Free expression of thoughts and views by
individuals or group of individuals is an integral
part of a healthy civilised society. Without
freedom of expression of thoughts and views, it is
impossible to lead a dignified life guaranteed by
Article 21 of the Constitution. In a healthy
democracy, the views, opinions or thoughts
expressed by an individual or group of
individuals must be countered by expressing
another point of view. Even if a large number of
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persons dislike the views expressed by another,
the right of the person to express the views must
be respected and protected. Literature including
poetry, dramas, films, stage shows including
stand-up comedy, satire and art, make the lives
of human beings more meaningful. The Courts
are duty-bound to uphold and enforce
fundamental rights guaranteed under the
Constitution of India. Sometimes, we, the
Judges, may not like spoken or written words.
But, still, it is our duty to uphold the
fundamental right under Article 19 (1)(a). We
Judges are under an obligation to uphold the
Constitution and respect its ideals. If the police
or executive fail to honour and protect the
fundamental rights guaranteed under Article 19
(1)(a) of the Constitution, it is the duty of the
Courts to step in and protect the fundamental
rights. There is no other institution which can
uphold the fundamental rights of the citizens.
(ix) 75 years into our republic, we cannot be seen to
be so shaky on our fundamentals that mere
recital of a poem or for that matter, any form of
art or entertainment, such as, stand-up comedy,
can be alleged to lead to animosity or hatred
amongst different communities. Subscribing to
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such a view would stifle all legitimate expressions
of view in the public domain which is so
fundamental to a free society.
43. Though this judgment is authored by one of us
(Abhay S. Oka, J.), it is based on valuable inputs by Ujjal
Bhuyan, J.
44. In the circumstances, the impugned order deserves
to be set aside. We, accordingly, quash and set aside the
impugned order. We also quash and set aside FIR No.
11202008250014 of 2025, registered with City A-Division
Police Station, Jamnagar, and further proceedings based
thereon. The Appeal is accordingly allowed.

……………………..J.
(Abhay S. Oka)

……………………..J.
(Ujjal Bhuyan)
New Delhi;
March 28, 2025

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