SRI. SANDEEP KUMAR vs STATE OF KARNATAKA

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Reserved on : 25.09.2026
Pronounced on : 16.10.2026




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

R
TH
DATED THIS THE 16 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

CRIMINAL PETITION NO.13010 OF 2026

BETWEEN:

SRI SANDEEP KUMAR
S/O AKHILESHWAR PRASAD
AGED ABOUT 26 YEARS,
ADMIN OF KARNATAKA PORTFOLIO,
TH
RESIDING AT 246-75, 8 CROSS,
TH
9 MAIN ROAD, SIRI BUILDING,
HOSALLI ROAD, BENGALURU – 560 109
(ADDRESS AS PER 35(3) NOTICE)

AADHAR ADDRESS
RESIDING AT RCF 103
SECTOR 4, BOOTHNATH ROAD,
SOUTH OF T V ROAD
BAHADURPURA HOUSING COLONY
B.H.COLONY, PATNA
BIHAR – 800 026.
…PETITIONER










Digitally
signed by
CHETAN B C
Location:
High Court of
Karnataka

(BY SRI GIRISH BHARADWAJ, ADVOCATE)

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AND:

1. STATE OF KARNATAKA
BY PUTTUR TOWN PS,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU – 560 001.

2. SRI MAHAMMAD SHAHANAWAZ
S/O ABDUL BASHEER
AGED ABOUT 21 YEARS
RESIDING AT
INDHIRANAGARA HOUSE,
NARIMOGARU VILLAGE,
PUTTUR, DAKSHINA KANNADA
KARNATAKA – 574 202.
…RESPONDENTS
(BY SMT.DEEPTHI ALVA, HCGP FOR R-1;
R-2 IS SERVED AND UNREPRESENTED)

THIS CRL.P IS FILED U/S 528 OF BNNS PRAYING TO QUASH
THE FIR AND COMPLAINT ARISING OUT OF CRIME NO.88/2026,
REGISTERED BY THE PUTTUR TOWN POLICE STATION PENDING ON
THE FILE OF THE PRL.SR.CIVIL JUDGE AND ACJM, PUTTUR FOR
OFFENCES U/S 353(2) OF BNS 2023 (ANNEXURE-A AND B
RESPECTIVELY).
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 25.09.2026, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

CAV ORDER

The petitioner is before the Court calling in question crime in
Crime No.88 of 2026 registered for the offence punishable under
Section 353(2) of the BNS, 2023.

2. Heard Sri Girish Bharadwaj , learned counsel appearing
for the petitioner and Smt. Deepthi Alva , learned High Court
Government Pleader appearing for respondent No.1. Respondent
No.2 is served and unrepresented.


3. Facts, in brief, germane, are as follows: -

3.1. It is the case of the complainant that on 08-07-2026, the
nd
2 respondent Mahammad Shahanawaz notices a post on an
account “Karnataka Portfolio” stating “Law and Order under Fire:
Six held after Hindu woman alleges knife threat in Puttur”.
Thereafter, six young people were taken into police custody on the
allegation that they had allegedly threatened a woman on her way
to work. The incident had occurred on 8-07-2026 at Purusharakatte

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in Puttur Taluk, Dakshina Kannada. According to the reports, the
woman parked her scooter at Purusharakatte to travel to Mangalore
for work when a group of youths allegedly approached her,
brandished a knife and threatened her. Having got frightened about
the incident, the lady is said to have immediately boarded an
autorickshaw and left for Puttur. The group allegedly continued to
follow the autorickshaw in a Thar SUV. The said incident is captured
nd
in the nearby CCTV camera. The 2 respondent alleged that
sharing of the post in which six young people had troubled the
nd
woman was targeting the 2 respondent and his friends and was
allegedly aimed at creating chaos with an intention to disturb social
harmony of the society and creating communal tension.

3.2. It is further alleged that sharing of such misinformation
and news without proper verification may lead to the complainant
losing his friends and goodwill in the locality. On the said post but
not on the incident, the Police wake up and register a crime against
the petitioner for offence punishable under Section 353(2) of the
BNS. Not stopping at that, on the said post, which was also carried
to other social media platforms, 7 crimes are alleged against the

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petitioner for the same offence before the same Police Station. It is
this that drives the petitioner to this Court in the subject petition.


4. The learned counsel Sri Girish Bharadwaj appearing for
the petitioner would vehemently contend that initially there was a
post on social media platform ‘X’ and news in the platform
described the incident of stalking and following a woman by 6
young people in the jeep. The petitioner only shares the information
what was already posted in a social media and re-posts the same.
The statement of the petitioner do not refer to identifiable groups
for an offence under Section 353(2) of the BNS. The petitioner is
not the author of the post nor originator of the publication. It is only
a re-publication in the social media. This cannot become ingredients
of the crime is the submission of the learned counsel. He would
nd
contend that the 2 respondent using his clout in the area, as if the
post is targeting him, registers crimes, not one but 7 crimes against
all the media journals including the petitioner. He thus seeks
quashment of the crime registered against him.

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5. The learned High Court Government Pleader Smt. Deepthi
st
Alva appearing for the 1 respondent would however refute the
submissions in contending that the crime so registered alleges a
mix of certain statements with regard to the incident that has
happened in Puttur. All the procedure that is necessary to be
followed has been followed in the case at hand. A notice under
Section 35(3) of the BNSS is also issued. Therefore, the statement
of the petitioner did create certain disharmony and would seek that
investigation must be permitted to be continued.

6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.

7. The afore-narrated facts, dates and link in the chain of
events are all a matter of record. They would not require any
iteration. The incident that triggers for registration of multiple
crimes against all the news channels, social media and the
petitioner is necessary to be noticed. It reads as follows:

“ ೆ
,
ಾಾ ಾಯವರು

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,
ಪ ತೂರು ನಗರ ೕ ಾೆ
, . . .
ಪ ತೂರು ದ ಕ ೆ

,
ಂದ

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: 8904428403
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:ಷಯ ;ಾ<ಾ ಕ =ಾಲ8ಾಣ&ಾದ ?@ಟ2 ಎCD ನ  ಕ7ಾ+ಟಕ ೕಟ+
(Karnataka portfolio @karnatakaportf)
Eೕ Fೕ

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. 08-07-2026
ಪ ರುಷರಕTೆL ಜಂUV ಆO ೆಲಸ <ಾX ೊಂXರು8ೇ7ೆ 57ಾಂಕ ರಂದು ಪ ತೂನ
"Law and Order Under Fire: Six
ಪ ರುಷರಕTೆL ಎಂಬ  ನYೆದ ಘಟ7ೆಯನುH ಉ,ೆ/ೕ1R
Held After Hindu Woman Alleges Knife Threat in Puttur, Six youths
were taken into police custody after they allegedly threatened a
woman with a knife while she was on her way to work. The incident
occurred on Wednesday (July 8) at Purusharakatte in Puttur taluk of
Dakshin Kannada district. According to reports, the woman had parked
her scooter at Purusharakatte as usual to travel to Mangaluru for work
when a group of youths allegedly approached her, brandished a knife,
and threatened her. Frightened by the incident, she immediately
boarded an autorickshaw and left for Puttur. However, the group
allegedly continued to pursue her. Around six youths reportedly
followed the autorickshaw in a Thar SUV and allegedly threatened her
again. The alleged incident of the youths brandishing a knife and
intimidating the woman was captured on a nearby CCTV camera."

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- 8 -


,
ಧ ೆNಯುಂTಾOದು/ ;ಾವ+ಜbಕ mಾಂa ಮತು  ;ೌ%ಾದ+8ೆ ೆ %ಾbnಾಗುವ ;ಾಧh8ೆ %ಾಗೂ ೋಮು
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%ಾಗೂ ನನH ;ೆHೕIತರ :ರುದJ ;ಾ<ಾ ಕ =ಾಲ8ಾಣದ  %ಾMದ ಕ7ಾ+ಟಕ ೕಟ+ Eೕ Fೕ
(Karnataka portfolio @karnatakaportf )” -
ಎಂಬ ?@ಟ2 ಎCD tಾ8ೆಯನುH %ೊಂ5ರುವ

ವhM ಯ Qೕ ೆ ಸೂಕ  ಾನೂನು ಕ)ಮ ೈೊಳ_`ವ6ೇ ೋ ೆ

,
ಪ ತೂರು ನಗರ ೕ ಾೆ
: 09-07-2026
57ಾಂಕ

ಇaೕ ತಮ" :mಾ@R

ಸI/-“

It is not a stray incident or a generated incident that the petitioner
re-posts. It was a serious incident of 6 young men forming a group,
following or stalking a woman in their Thar SUV and threatening her
time and again. If this should not be reported in the social media
what else can be posted. It is not reported by the petitioner. The
petitioner only tweets that “law and order under fire”. The
petitioner has reiterated that agony or reposted the incident that is
already reported with agony of anarchy.

8. The entire complaint or entire tweet from the statement
that is allegedly made by the petitioner nowhere names any
religious groups for generating communal disharmony. The crime

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for the asking is registered against the petitioner and a notice under
Section 35(3) is issued. The petitioner then comes to know that on
the same incident about 7 crimes are registered in the same police
station in Crime Nos. 82 to 88 of 2026. The petitioner is accused in
Crime No.88 of 2026. The seven in line are on the same incident.

9. The offence alleged against the petitioner in Crime No.88 of
2026 is the one punishable under Section 353(2) of the BNS.
Section 353(2) reads as follows:
“ 353. Statements conducing to public mischief :
… … …

(2) Whoever makes, publishes or circulates any
statement or report containing false information, rumour or
alarming news, including through electronic means, with intent
to create or promote, or which is likely to create or promote, on
grounds of religion, race, place of birth, residence, language,
caste or community or any other ground whatsoever, feelings of
enmity, hatred or ill-will between different religious, racial,
language or regional groups or castes or communities, shall be
punished with imprisonment which may extend to three years,
or with fine, or with both.”

Interpretation of Section 353(2) BNS which was Section 505 of the
earlier regime, the IPC need not detain this Court for long or delve
deep into the matter.

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9.1. The Apex Court in the case of BILAL AHMED KALOO v.
1
STATE OF ANDHRA PRADESH , while interpreting Section 505(2)
of the IPC, has held as follows:
“…. …. ….
10. Section 153-A was amended by the Criminal and
Election Laws (Amendment) Act, 1969 (Act No. 35 of 1969). It
consists of three clauses of which clauses ( a ) and ( b ) alone are
material now. By the same Amending Act sub-section (2) was
added to Section 505 of the Penal Code, 1860. Clauses ( a ) and
( b ) of Section 153-A and Section 505(2) are extracted below:

“153-A. 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 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

( b ) commits any act 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, or

( c ) *

shall be punished with imprisonment which may
extend to three years, or with fine, or with both.
*


1
(1997) 7 SCC 431

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505. (2) Statements creating or promoting
enmity, hatred or ill will between classes. —Whoever
makes, publishes or circulates any statement or report
containing rumour or alarming news with intent to
create or promote, or which is likely to create or
promote, on grounds of religion, race, place of birth,
residence, language, caste or community or any other
ground whatsoever, feelings of enmity, hatred or ill will
between different religious, racial, language or regional
groups or castes or communities, shall be punished with
imprisonment which may extend to three years, or with
fine, or with both.”

The common ingredient in both the offences is
promoting feeling of enmity, hatred or ill will between
different religious or racial or linguistic or regional
groups or castes or communities. Section 153-A covers a
case where a person by “words, either spoken or written, or by
signs or by visible representations” promotes or attempts to
promote such feeling. Under Section 505(2), promotion of
such feelings should have been done by making and
publishing or circulating any statement or report
containing rumour or alarming news.

11. This Court has held in Balwant Singh v. State of
Punjab [(1995) 3 SCC 214 : 1995 SCC (Cri) 432] that mens rea
is a necessary ingredient for the offence under Section 153-A.
Mens rea is an equally necessary postulate for the offence
under Section 505(2) also as could be discerned from the
words “with intent to create or promote or which is likely
to create or promote” as used in that sub-section.

12. The main distinction between the two offences
is that while publication of the words or representation is
not necessary under the former, such publication is sine
qua non under Section 505. The words “whoever makes,
publishes or circulates” used in the setting of Section
505(2) cannot be interpreted disjunctively but only as
supplementary to each other. If it is construed
disjunctively, anyone who makes a statement falling
within the meaning of Section 505 would, without
publication or circulation, be liable to conviction. But the
same is the effect with Section 153-A also and then that section
would have been bad for redundancy. The intention of the

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legislature in providing two different sections on the same
subject would have been to cover two different fields of similar
colour. The fact that both sections were included as a package
in the same amending enactment lends further support to the
said construction.
…. …. ….

14. In Sunilakhya Chowdhury v. H.M. Jadwet [AIR 1968
Cal 266 : 1968 Cri LJ 736] it has been held that the words
“makes or publishes any imputation” should be interpreted as
words supplementing each other. A maker of imputation
without publication is not liable to be punished under
that section. We are of the view that the same
interpretation is warranted in respect of the words
“makes, publishes or circulates” in Section 505 IPC also.”


9.2. The Apex Court again in the case of PATRICIA MUKHIM
2
v. STATE OF MEGHALAYA , while interpreting Sections 153A and
505 of the IPC, has held as follows:
“…. …. ….
11. In Bilal Ahmed Kaloo v. State of A.P. [ Bilal Ahmed
Kaloo v. State of A.P. , (1997) 7 SCC 431 : 1997 SCC (Cri)
1094] , this Court analysed the ingredients of Sections 153-A
and 505(2)IPC. It was held that Section 153-A covers a case
where a person by “words, either spoken or written, or by signs
or by visible representations”, promotes or attempts to promote
feeling of enmity, hatred or ill will. Under Section 505(2)
promotion of such feeling should have been done by
making a publication or circulating any statement or
report containing rumour or alarming news. Mens rea
was held to be a necessary ingredient for the offence
under Sections 153-A and 505(2). The common factor of
both the sections being promotion of feelings of enmity,
hatred or ill will between different religious or racial or

2
(2021) 15 SCC 35

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linguistics or religious groups or castes or communities, it
is necessary that at least two such groups or
communities should be involved. It was further held in
Bilal Ahmed Kaloo [ Bilal Ahmed Kaloo v. State of A.P. ,
(1997) 7 SCC 431 : 1997 SCC (Cri) 1094] that merely
inciting the feelings of one community or group without
any reference to any other community or group cannot
attract any of the two sections. The Court went on to
highlight the distinction between the two offences,
holding that publication of words or representation is
sine qua non under Section 505. It is also relevant to
refer to the judgment of this Court in Ramesh v. Union of
India [ Ramesh v. Union of India , (1988) 1 SCC 668 : 1988
SCC (Cri) 266] in which it was held that words used in
the alleged criminal speech should be judged from 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. The standard of an ordinary reasonable
man or as they say in English law “the man on the top of
a Clapham omnibus” should be applied.

12. This Court in Pravasi Bhalai Sangathan v. Union
of India [ Pravasi Bhalai Sangathan v. Union of India ,
(2014) 11 SCC 477 : (2014) 3 SCC (Cri) 400] had referred
to the Canadian Supreme Court decision in Saskatchewan
(Human Rights Commission) v. William Whatcott
[ Saskatchewan (Human Rights Commission) v. William
Whatcott , 2013 SCC OnLine Can SC 6 : (2013) 1 SCR 467]
. In that judgment, the Canadian Supreme Court set out
what it considered to be a workable approach in
interpreting “hatred” as is used in legislative provisions
prohibiting hate speech. The first test was for the Courts
to apply the hate speech prohibition objectively and in so
doing, ask whether a reasonable person, aware of the
context and circumstances, would view the expression as
exposing the protected group to hatred. The second test
was to restrict interpretation of the legislative term
“hatred” to those extreme manifestations of the emotion
described by the words “detestation” and “vilification”.
This would filter out and protect speech which might be
repugnant and offensive, but does not incite the level of
abhorrence, delegitimisation and rejection that risks

- 14 -


causing discrimination or injury. The third test was for
the Courts to focus their analysis on the effect of the
expression at issue, namely, whether it is likely to expose
the targeted person or group to hatred by others. Mere
repugnancy of the ideas expressed is insufficient to
constitute the crime attracting penalty.

13. In the instant case, applying the principles laid down
by this Court as mentioned above, the question that arises for
our consideration is whether the Facebook post dated 4-7-2020
was intentionally made for promoting class/community hatred
and has the tendency to provoke enmity between two
communities. A close scrutiny of the Facebook post would
indicate that the agony of the appellant was directed against the
apathy shown by the Chief Minister of Meghalaya, the Director
General of Police and the Dorbar Shnong of the area in not
taking any action against the culprits who attacked the non-
tribals youngsters. The appellant referred to the attacks on non-
tribals in 1979. At the most, the Facebook post can be
understood to highlight the discrimination against non-tribals in
the State of Meghalaya. However, the appellant made it clear
that criminal elements have no community and immediate
action has to be taken against persons who had indulged in the
brutal attack on non-tribal youngsters playing basketball. The
Facebook post read in its entirety pleads for equality of non-
tribals in the State of Meghalaya. In our understanding, there
was no intention on the part of the appellant to promote
class/community hatred. As there is no attempt made by the
appellant to incite people belonging to a community to indulge
in any violence, the basic ingredients of the offence under
Sections 153-A and 505(1)( c ) have not been made out. Where
allegations made in the FIR or the complaint, even if they are
taken on their face value and accepted in their entirety do not
prima facie constitute any offence or make out a case against
the accused, the FIR is liable to be quashed [ State of Haryana v.
Bhajan Lal , 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] .

…. …. ….

15. The attack upon six non-locals, carried out by
masked individuals, is not denied by the State; its reporting too
is not denied. The State in fact issued a press release. There
appears to be no headway in the investigations. The complaint

- 15 -


made by the Dorbar Shnong, Lawsohtun that the statement of
the appellant would incite communal tension and might instigate
a communal conflict in the entire State is only a figment of
imagination. The fervent plea made by the appellant for
protection of non-tribals living in the State of Meghalaya and for
their equality cannot, by any stretch of imagination, be
categorised as hate speech. It was a call for justice — for action
according to law, which every citizen has a right to expect and
articulate. Disapprobation of governmental inaction cannot be
branded as an attempt to promote hatred between different
communities. Free speech of the citizens of this country cannot
be stifled by implicating them in criminal cases, unless such
speech has the tendency to affect public order. The sequitur of
above analysis of the Facebook post made by the appellant is
that no case is made out against the appellant for an offence
under Sections 153-A and 505(1)( c )IPC.”


9.3. The Apex Court has interpreted Section 153A of the IPC,
the ingredients of which are identical to the offence under Section
505(2) IPC or 353(2) BNS as is alleged in the case at hand in the
3
cases of JAVED AHMAD HAJAM v. STATE OF MAHARASHTRA
4
and SHIV PRASAD SEMWAL v. STATE OF UTTARAKHAND .
The Apex Court in the case of JAVED AHMAD HAJAM has held as
follows:
“…. …. ….

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

3
(2024) 4 SCC 156
4
(2024) 7 SCC 555

- 16 -


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 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 [ Manzar Sayeed
Khan v. State of Maharashtra , (2007) 5 SCC 1 : (2007) 2 SCC
(Cri) 417] , 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

- 17 -


appellant has a photograph of two barbed wires, below which it
is mentioned that “ AUGUST 5 — BLACK DAY — 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 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.

15. The High Court has held [ Javed Ahmed
Hajam v. State of Maharashtra , 2023 SCC OnLine Bom 819]
that the possibility of stirring up the emotions of a group of
people cannot be ruled out. The appellant's college teachers,
students, and parents were allegedly members of the WhatsApp
group. As held by Vivian Bose, J., the effect of the words used
by the appellant on his WhatsApp status will have to be judged
from the standards of reasonable women and men. We cannot
apply the standards of people with weak and vacillating minds.
Our country has been a democratic republic for more than 75
years. The people of our country know the importance of

- 18 -


democratic values. Therefore, it is not possible to conclude that
the words will promote disharmony or feelings of enmity, hatred
or ill will between different religious groups. The test to be
applied is not the effect of the words on some individuals with
weak minds or who see a danger in every hostile point of view.
The test is of the general impact of the utterances on
reasonable people who are significant in numbers. Merely
because a few individuals may develop hatred or ill will, it will
not be sufficient to attract clause ( a ) of sub-section (1) of
Section 153-AIPC.

16. As regards the picture containing “Chand” and below
that the words “14th August-Happy Independence Day
Pakistan”, we are of the view that it will not attract clause ( a ) of
sub-section (1) of Section 153-AIPC. Every citizen has the right
to extend good wishes to the citizens of the other countries on
their respective Independence Days. If a citizen of India extends
good wishes to the citizens of Pakistan on 14th August, which is
their Independence Day, there is nothing wrong with it. It is a
gesture of goodwill. In such a case, it cannot be said that such
acts will tend to create disharmony or feelings of enmity, hatred
or ill will between different religious groups. Motives cannot be
attributed to the appellant only because he belongs to a
particular religion.

17. Now, the time has come to enlighten and educate our
police machinery on the concept of freedom of speech and
expression guaranteed by Article 19(1)( a ) of the Constitution
and the extent of reasonable restraint on their free speech and
expression. They must be sensitised about the democratic
values enshrined in our Constitution.

18. For the same reasons, clause ( b ) of sub-section (1) of
Section 153-AIPC will not be attracted as what is depicted on
the WhatsApp status of the appellant cannot be said to be
prejudicial to the maintenance of harmony among various
groups as stated therein. Thus, continuation of the prosecution
of the appellant for the offence punishable under Section 153-
AIPC will be a gross abuse of the process of law.”

- 19 -


9.4. The Apex Court in the case of SHIV PRASAD SEMWAL
has held as follows:
“…. …. ….
21. It may be noted that the entire case as set out in the
impugned FIR is based on the allegation that the Facebook news
post uploaded by one journalist Mr GunanandJakhmola was
caused to be published on Parvatjan news portal being operated
by the appellant.

22. Thus, essentially, we are required to examine
whether the contents of the news report constitute any
cognizable offence so as to justify the investigation into the
allegations made in the FIR against the appellant.

23. For the sake of ready reference, the contents of the
disputed news article are reproduced hereinbelow:

“GunanandJakhmola
17-3-2020 at 30.05

Trivender Uncle what amazing things you are doing?

Uncle you are laying foundation stone of Art Gallery
which is going to construct by acquiring government
land.

Uncle you are associating the mafias who are violating
the decisions of Modi Government.

Don't trap yourself with mafias, have you forgot the
problems arisen out of marriage of Gupta brother's.

Uncle you were not like this, what happened to
you? Was the troubles arisen out of marriage of Gupta
Brothers was not enough that you are now going to
laying foundation stone of the Art Gallery which is going
to construct by acquiring government land. Just think
over it, or take report from LIU and other agencies
about this Art Gallery which is going to construct on the
acquired government land. This is a government land
which is dismantled by mafias and your officers. Uncle

- 20 -


you are innocent, anybody can use you. Advisers and
officers surrounding you they are cunning.

This cunning persons have brought you forward
against the decisions of Modi Government.

Uncle let I inform you for your knowledge that
Modi Government means your honour has given
sanction to planning for Singtali Project near Rishikesh.
This project will reduce the distance between Kumau
and Garhwal and also it will arrange sources of
employment in mountains. World Bank is also giving
money, but the program of Mafias in which you are
going to participate on 20 March, that is an enemy of
mountains. It has no concern with the wellbeing of
mountains. It is against the proposed project of Modi
Government and your officers and advisers are in
collusion with that. Please inquire it and then only you
go.

Note: Kindly see the invitation card given by mafias.”

24. As per the counter-affidavit filed on behalf of the
State, after investigation, two substantive offences were
retained by the investigating officer against the appellant, which
are Sections 153-A and 504 read with Sections 34 and 120-
BIPC.

25. From a bare reading of the language of Section
153-AIPC, it is clear that in order to constitute such
offence, the prosecution must come out with a case that
the words “spoken” or “written” attributed to the
accused, created enmity or bad blood between different
groups on the ground of religion, race, place of birth,
residence, language, etc. or that the acts so alleged were
prejudicial to the maintenance of harmony.

26. Upon careful perusal of the offending news article,
reproduced (supra), it is crystal clear that there is no reference
to any group or groups of people in the said article. The
publication focuses totally on the complainant imputing that he
had encroached upon public land where the foundation stone
laying ceremony was proposed at the hands of Hon'ble Chief
Minister of Uttarakhand.

- 21 -



27. Apparently, the post was aimed at frustrating the
proposed foundation stone laying ceremony on the land, of
which the complainant claims to be the true owner. The post
also imputes that the person who was planning the foundation
stone ceremony was an enemy of mountains and had no
concern with the well-being of the mountains.

28. The learned Standing Counsel for the State tried
to draw much water from these lines alleging that this
portion of the post tends to create a sense of enmity and
disharmony amongst people of hill community and the
people of plains. However, the interpretation sought to be
given to these words is far-fetched and unconvincing. The
lines referred to supra only refer to the complainant,
imputing that his activities are prejudicial to the hills.
These words have no connection whatsoever with a
group or groups of people or communities. Hence, the
foundational facts essential to constitute the offence
under Section 153-AIPC are totally lacking from the
allegations as set out in the FIR.

29. In Manzar Sayeed Khan v. State of
Maharashtra [ Manzar Sayeed Khan v. State of Maharashtra ,
(2007) 5 SCC 1: (2007) 2 SCC (Cri) 417], this Court held that
for applying Section 153-AIPC, the presence of two or more
groups or communities is essential, whereas in the present case,
no such groups or communities were referred to in the news
article.

30. The other substantive offence which has been
applied by the investigating agency is Section 504IPC.
The said offence can be invoked when the insult of a
person provokes him to break public peace or to commit
any other offence. There is no such allegation in the FIR
that owing to the alleged offensive post attributable to
the appellant, the complainant was provoked to such an
extent that he could indulge in disturbing the public
peace or commit any other offence. Hence, the FIR lacks
the necessary ingredients of the said offence as well.

31. Since we have found that the foundational facts
essential for constituting the substantive offences under

- 22 -


Sections 153-A and 504IPC are not available from the
admitted allegations of prosecution, the allegations qua
the subsidiary offences under Sections 34 and 120-BIPC
would also be non est.

32. The complainant has also alleged in the FIR that the
accused intended to blackmail him by publishing the news
article in question. However, there is no allegation in the FIR
that the accused tried to extract any wrongful gain or valuable
security from the complainant on the basis of the
mischievous/malicious post.

33. In State of Haryana v. Bhajan Lal [ State of
Haryana v. Bhajan Lal , 1992 Supp (1) SCC 335 : 1992 SCC (Cri)
426] , this Court examined the principles governing the scope of
exercise of powers by the High Court in a petition under Article
226 of the Constitution of India and under Section 482CrPC
seeking quashing of criminal proceedings and held as follows :
(SCC pp. 378-79, para 102)

“ 102 . In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this Court
in a series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised.

(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out a
case against the accused.

(2) Where the allegations in the first information
report and other materials, if any, accompanying the FIR
do not disclose a cognizable offence, justifying an

- 23 -


investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made
in the FIR or complaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted by
a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.

(6) Where there is an express legal bar engrafted
in any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”

34. Tested on the touchstone of the above principles, we
are of the firm view that allowing continuance of the
proceedings pursuant to the impugned FIR bearing No. 31 of
2020 registered at PS Muni Ki Reti, District Tehri Garhwal
against the appellant is nothing but gross abuse of process of
law because the allegations as set out in the FIR do not disclose
necessary ingredients of any cognizable offence. Hence, the
impugned FIR and all proceedings sought to be taken against
the appellant are hereby quashed and set aside.”

- 24 -


9.5. Again, the Apex Court in the case of IMRAN
5
PRATAPGADHI v. STATE OF GUJARAT , while considering the
ingredients under Section 196 of the BNS or Section 153-A of the
IPC, has held as follows:
“…. …. ….
15. 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, 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 tranquillity.
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.
…. …. ….


5
(2026) 1 SCC 721

- 25 -


42. This Court in Javed Ahmad Hajam [ Javed
Ahmad Hajam v. State of Maharashtra , (2024) 4 SCC 156
: (2024) 2 SCC (Cri) 383] , was dealing with an offence
punishable under Section 153-AIPC. Section 153-AIPC is
in pari materia with Section 196 BNS. The only difference
is that the words “or through electric communication”
have been added in clause ( a ) of Section 196 BNS, which
were not in clause ( a ) of Section 153-AIPC. When an
offence punishable under Section 196 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

43. In Manzar Sayeed Khan [ Manzar Sayeed Khan v.
State of Maharashtra , (2007) 5 SCC 1 : (2007) 2 SCC (Cri) 417]
and Patricia Mukhim v. State of Meghalaya [ Patricia Mukhim v.
State of Meghalaya , (2021) 15 SCC 35] , the ingredient of mens
rea has been read into Section 153-AIPC by this Court. Paras 8
to 14 of the decision in Javed Ahmad Hajam [ Javed Ahmad
Hajam v. State of Maharashtra , (2024) 4 SCC 156 : (2024) 2
SCC (Cri) 383] , which analyses both the above decisions, read
thus: ( Javed Ahmad Hajam case [ Javed Ahmad Hajam v. State
of Maharashtra , (2024) 4 SCC 156 : (2024) 2 SCC (Cri) 383] ,
SCC pp. 161-64)

“ 8 . This Court in Manzar Sayeed Khan [ Manzar
Sayeed Khan v. State of Maharashtra , (2007) 5 SCC 1 :
(2007) 2 SCC (Cri) 417] 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.,
C.P. & Berar [ Bhagwati Charan Shukla v. Provincial
Govt., C.P. & Berar , 1946 SCC OnLine MP 5] . A Division
Bench of the High Court dealt with the offence of
sedition under Section 124-AIPC and Section 4(1) of the
Press (Emergency Powers) Act, 1931. The issue was
whether a particular article in the press tends,
directly or indirectly, to bring hatred or contempt

- 26 -


to the Government established in law. This Court
has approved this view in its decision in Ramesh v.
Union of India [ Ramesh v. Union of India , (1988) 1
SCC 668 : 1988 SCC (Cri) 266] . In the said case,
this Court dealt with the issue of applicability of
Section 153-AIPC. In para 13, it was held thus:
( Ramesh case [ Ramesh v. Union of India , (1988) 1
SCC 668 : 1988 SCC (Cri) 266] , SCC p. 676)

‘ 13 . … the effect of the words must
be judged from 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 . … It is the standard of ordinary
reasonable man or as they say in English
law “the man on the top of a Clapham
omnibus”.’

Therefore, the yardstick laid down by Vivian
Bose, J., will have to be applied while judging the effect
of the words, spoken or written, in the context of
Section 153-AIPC.

9 . We may also make a useful reference to a
decision of this Court in Patricia Mukhim v. State of
Meghalaya [ Patricia Mukhim v. State of Meghalaya ,
(2021) 15 SCC 35] . Paras 8 to 10 of the said decision
read thus: (SCC pp. 41-43)

‘8. “ It is of utmost importance to keep all
speech free in order for the truth to emerge and
have a civil society .”— Thomas Jefferson.
Freedom of speech and expression guaranteed by
Article 19(1)( a ) of the Constitution is a very
valuable fundamental right. However, the right is
not absolute. Reasonable restrictions can be
placed on the right of free speech and expression
in the 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

- 27 -


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 .
[ Balwant Singh v. State of Punjab , (1995) 3 SCC
214 : 1995 SCC (Cri) 432]

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.
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 [ Manzar Sayeed Khan v.
State of Maharashtra , (2007) 5 SCC 1 : (2007) 2
SCC (Cri) 417] .”

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

- 28 -


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 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 . InManzar Sayeed Khan [ Manzar Sayeed
Khan v. State of Maharashtra , (2007) 5 SCC 1 :
(2007) 2 SCC (Cri) 417] , 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 is mentioned that “AUGUST 5 — BLACK DAY —
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

- 29 -


part of 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.”

(emphasis in original and supplied)

…. …. ….

53.6. When an offence punishable under Section
196 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 .”

- 30 -


10. Since crime after crime is registered by the very Police
Station on an incident of reporting of a particular act, it is shocking
as to how for the asking, the crimes are registered by the
jurisdictional police on the same incident without there being any
ingredient of crime and without holding any preliminary inquiry. It
is here the judgments of the Apex Court in SATENDER KUMAR
6
ANTIL v. CBI and the High Court of Telangana in NALLA BALU v.
7
STATE OF TELANGANA , which was subsequently affirmed by the
8
Apex Court in STATE OF TELANGANA v. NALLA BALU are
required to be noticed.

10.1. The Apex Court in the case of SATENDER KUMAR
ANTIL has held as follows:
“…. …. ….
17. An arrest, being an act done by a police officer in
furtherance of an investigation, is discretionary and optional to
be applied on the facts of a particular case. Section 35 of
the BNSS, 2023 provides for situations where a person may be
arrested by a police officer, without a warrant.


6
2026 SCC OnLine SC 162
7
2025 SCC OnLine TS 855
8
SPECIAL LEAVE PETITION (CRIMINAL) Diary No(s). 71178/2025
disposed on 2.2.2026

- 31 -


Section 35 of the BNSS, 2023
“35. When police may arrest without
warrant .—(1) Any police officer may without an
order from a Magistrate and without a warrant,
arrest any person—
( a ) who commits, in the presence of a police
officer, a cognizable offence; or
( b ) against whom a reasonable complaint has
been made, or credible information has
been received, or a reasonable suspicion
exists that he has committed a cognizable
offence punishable with imprisonment for a
term which may be less than seven years or
which may extend to seven years whether
with or without fine, if the following
conditions are satisfied, namely:—
( i ) the police officer has reason to
believe on the basis of such
complaint, information, or suspicion
that such person has committed the
said offence;
( ii ) the police officer is satisfied that such
arrest is necessary—
( a ) to prevent such person from
committing any further offence;
or
( b ) for proper investigation of the
offence; or
( c ) to prevent such person from
causing the evidence of the
offence to disappear or
tampering with such evidence
in any manner; or
( d ) to prevent such person from
making any inducement, threat
or promise to any person
acquainted with the facts of the
case so as to dissuade him from

- 32 -


disclosing such facts to the
Court or to the police officer; or
( e ) as unless such person is
arrested, his presence in the
Court whenever required
cannot be ensured ,
and the police officer shall record while
making such arrest, his reasons in writing:
Provided that a police officer shall, in all
cases where the arrest of a person is not required
under the provisions of this sub-section, record
the reasons in writing for not making the arrest ; or
( c ) against whom credible information has been
received that he has committed a cognizable offence
punishable with imprisonment for a term which may
extend to more than seven years whether with or
without fine or with death sentence and the police officer
has reason to believe on the basis of that information
that such person has committed the said offence; or
( d ) who has been proclaimed as an offender
either under this Sanhita or by order of the State
Government; or
( e ) in whose possession anything is found which
may reasonably be suspected to be stolen property and
who may reasonably be suspected of having committed
an offence with reference to such thing; or
( f ) who obstructs a police officer while in the
execution of his duty, or who has escaped, or attempts
to escape, from lawful custody; or
( g ) who is reasonably suspected of being a
deserter from any of the Armed Forces of the Union; or
( h ) who has been concerned in, or against whom
a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion
exists, of his having been concerned in, any act
committed at any place out of India which, if committed
in India, would have been punishable as an offence, and
for which he is, under any law relating to extradition, or

- 33 -


otherwise, liable to be apprehended or detained in
custody in India; or
( i ) who, being a released convict, commits a
breach of any rule made under sub-section (5) of
Section 394; or
( j ) for whose arrest any requisition, whether
written or oral, has been received from another police
officer, provided that the requisition specifies the person
to be arrested and the offence or other cause for which
the arrest is to be made and it appears therefrom that
the person might lawfully be arrested without a warrant
by the officer who issued the requisition.
(2) Subject to the provisions of Section 39, no
person concerned in a noncognizable offence or against
whom a complaint has been made or credible
information has been received or reasonable suspicion
exists of his having so concerned, shall be arrested
except under a warrant or order of a Magistrate.
(3) The police officer shall, in all cases
where the arrest of a person is not required under
sub-section (1) issue a notice directing the person
against whom a reasonable complaint has been
made, or credible information has been received,
or a reasonable suspicion exists that he has
committed a cognizable offence, to appear before
him or at such other place as may be specified in
the notice.
(4) Where such a notice is issued to any
person, it shall be the duty of that person to
comply with the terms of the notice.
(5) Where such person complies and
continues to comply with the notice, he shall not
be arrested in respect of the offence referred to in
the notice unless, for reasons to be recorded, the
police officer is of the opinion that he ought to be
arrested.
(6) Where such person, at any time, fails to
comply with the terms of the notice or is unwilling
to identify himself, the police officer may, subject
to such orders as may have been passed by a

- 34 -


competent Court in this behalf, arrest him for the
offence mentioned in the notice.
(7) No arrest shall be made without prior
permission of an officer not below the rank of Deputy
Superintendent of Police in case of an offence which is
punishable for imprisonment of less than three years
and such person is infirm or is above sixty years of age.”

(emphasis supplied)

18. Section 35(1) of the BNSS, 2023, through the use of
the word “may,” makes the position of law rather clear that the
power of arrest is discretionary and optional. The power of
arrest under Section 35(1)(a) to Section 35(1)(j) of the BNSS,
2023 are distinct and different from each other, with the
commonality being an offence which is cognizable in nature.

19. To attract the power of arrest under
Section 35(1)(b) of the BNSS, 2023, the conditions
mentioned thereunder ought to be complied with
scrupulously. Section 35(1)(b)(i) and
Section 35(1)(b)(ii) of the BNSS, 2023 must be read
together, meaning thereby that compliance with
Section 35(1)(b)(i) of the BNSS, 2023 is a sine qua non in
all cases of arrest.

20. Section 35(1)(b)(i) of the BNSS, 2023 speaks
about the “reason to believe” on the part of the police
officer. Such a reason to believe should be formed on the
basis of a complaint, information, or suspicion that the
person concerned has committed the offence. However,
this alone would not suffice. Additionally, any one of the
conditions mentioned under Section 35(1)(b)(ii) of
the BNSS, 2023 must also be satisfied. In other words, it
is not required that all the conditions mentioned under
Section 35(1)(b)(ii) of the BNSS, 2023 should be
available, but only the existence of one of them that is
required.

21. After being satisfied that there is a necessity of
arrest, a police officer is bound to record his reasons either for
arrest, as provided for under Section 35(1)(b) of the BNSS,

- 35 -


2023, or for merely issuing a notice under Section 35(3) of
the BNSS, 2023. Section 35(1)(b) of the BNSS, 2023, thus,
carves out an exception, with its inbuilt safeguards.

22. Suffice it is to state that an investigation can go on
even without an arrest. While undertaking the exercise of
collecting the evidence for the purpose of forming his opinion
over the commission of a cognizable offence, a police officer
shall pose a question, to himself, on the necessity of an arrest.
This safeguard is provided as, in any case, the power to arrest
an accused person is always available with a police officer even
after he records his reasons, in writing, for not doing so at an
earlier stage.

Joginder Kumar v. State of UP , (1994) 4 SCC 260

“20…No arrest can be made because it is
lawful for the police officer to do so. The existence
of the power to arrest is one thing. The
justification for the exercise of it is quite another.
The police officer must be able to justify the arrest
apart from his power to do so. Arrest and
detention in police lock-up of a person can cause
incalculable harm to the reputation and self-
esteem of a person. No arrest can be made in a
routine manner on a mere allegation of
commission of an offence made against a person.
It would be prudent for a police officer in the
interest of protection of the constitutional rights of
a citizen and perhaps in his own interest that no
arrest should be made without a reasonable
satisfaction reached after some investigation as to
the genuineness and bona fides of a complaint and
a reasonable belief both as to the person's
complicity and even so as to the need to effect
arrest. Denying a person of his liberty is a serious
matter. The recommendations of the Police Commission
merely reflect the constitutional concomitants of the
fundamental right to personal liberty and freedom. A
person is not liable to arrest merely on the suspicion of
complicity in an offence. There must be some
reasonable justification in the opinion of the
officer effecting the arrest that such arrest is
necessary and justified. Except in heinous
offences, an arrest must be avoided if a police

- 36 -


officer issues notice to person to attend the
Station House and not to leave the station without
permission would do.”

(emphasis supplied)

23. Section 35(3) of the BNSS, 2023, once again,
reiterates the object of the enactment that an arrest by a police
officer is not mandatory in all cases. This provision applies to all
cognizable offences. However, insofar as the offences
punishable with imprisonment up to a period of 7 years are
concerned, this provision will have to be read along with
Section 35(1)(b) of the BNSS, 2023, and its proviso which
mandates the furnishing of reasons, in writing, for both, making
an arrest and when there is no requirement to do so. As stated
above, the requirement of not arresting an accused is qua the
stage of issuing notice under Section 35(3) of the BNSS, 2023.
Hence, it is amply clear that a harmonious construction of
Section 35(1)(b) and Section 35(3) of the BNSS, 2023 needs to
be made.

Satender Kumar Antil v. Central Bureau of
Investigation , 2025 SCC OnLine SC 1578

“22. Section 35(4) of the BNSS,
2023 imposes a duty on the recipient of the notice
to the effect that once the notice is served, the
person must comply with every term of the notice.
Section 35(5) of the BNSS, 2023 provides that as
long as the person to whom the notice is issued,
appears as is required and continues to comply
with the notice, they cannot be arrested in relation
to the alleged offence. Arrest may be made only if
the Investigating Agency records specific reasons
as to why the arrest is necessary.”
(emphasis supplied)

24. Section 35(5) of the BNSS, 2023 facilitates the
liberty of a person by imposing an implied prohibition of
arrest when a person complies with a notice issued under
Section 35(3) of the BNSS, 2023. This provision reiterates
the fact that any subsequent arrest, being an exception,
is warranted only when a police officer forms an opinion

- 37 -


for such an arrest, which he is duty bound to record, in
writing, by furnishing adequate reasons.

25. With respect to the submission made by the leaned
Amicus, qua the contradiction in the reasoning of the High Court
of Bombay in Chandrashekhar Bhimsen Naik (supra), on a
reading of the judgment, we did not find any contradiction, as
stated. The judgment has clearly dealt with the mandatory
compliance of the provisions of Section 35 of the BNSS, 2023,
by the police officer.

26. Hence, we give our imprimatur to the views
expressed by the High Court of Bombay and, as already
observed by us in this order that, as a matter of course, a
notice under Section 35(3) of the BNSS, 2023 is to be
issued to an accused or any individual concerned, qua an
offence punishable with imprisonment up to 7 years and,
that, as long as a person to whom a notice under
Section 35(3) of the BNSS, 2023 is issued has complied
and continues to comply with the terms of the notice
then, as per Section 35(5) of the BNSS, 2023, it is not
open for the police officer to arrest him unless, for
reasons to be recorded, the police officer is of the opinion
that he ought to be arrested.

Satender Kumar Antil v. Central Bureau of
Investigation , 2025 SCC OnLine SC 1578

“23. Section 35(6) of the BNSS, 2023 lays
down the procedure to be followed in case of non-
compliance with the notice issued by the
Investigating Agency under Section 35(3) of
the BNSS, 2023. Non-compliance with a notice
does not ipso facto mandate arrest, as there lies a
discretion with the Investigating Agency, which
must be of the opinion that the arrest of the
concerned person is necessary for the purpose of
investigation. In other words, failure to comply
with the notice does not lead to automatic arrest.
Rather, it is the last resort available to the
Investigating Agency, after due exercise of
discretion regarding the necessity of arrest.

- 38 -


24. Therefore, the abovementioned provision
contains an element of substantivity, which
becomes evident from the discretion provided to
the Investigating Agency. The substantive element
is in the nature of a safeguard, especially when
the liberty of an individual is involved.
25. The protection of one's liberty is a crucial
aspect of the right to life guaranteed to each and
every individual, under Article 21 of
the Constitution of India (hereinafter referred to as
the ‘ Constitution’). The procedure encapsulated in
Section 35(6) of the BNSS, 2023, seeks to secure
this fundamental right, from encroachment by the
relevant Authority, and therefore, any attempt to
interpret the provision as a mere procedural one,
would amount to rewriting the provision itself.”

(emphasis supplied)

27. We have already clarified the
position qua Section 35(6) of the BNSS, 2023 in our earlier
order dated 16.07.2025 wherein, it has been stated that even
assuming that the person to whom a notice under
Section 35(3) of the BNSS, 2023 has been issued, fails to
comply with the terms of the notice or is unwilling to identify
himself, an arrest is not a matter of course.

28. We have also clarified, on the earlier occasion, that
the procedure contained in Section 35(6) of the BNSS, 2023 has
been introduced on the touchstone of Article 21 of
the Constitution of India. These inbuilt safeguards are required
to be complied with by the police officer, in letter and spirit.

29. From a conspectus of the above, it is amply clear that
even if the conditions mentioned under Section 35(1)(b) of
the BNSS, 2023 are in existence, there can be no mandatory
arrest, as a police officer still may or may not decide to do so.

30. While making an arrest under Section 35(6) of
the BNSS, 2023, after the stage of issuing a notice
seeking presence under Section 35(3) of the BNSS, 2023,
the circumstances and factors that were in existence at
the time of issuing the said notice shall not be taken into

- 39 -


consideration by a police officer while making an arrest
subsequently. In other words, for effecting an arrest
under Section 35(6) of the BNSS, 2023, it must be based
upon materials and factors which were not available with
the police officer at the time of issuing a notice under
Section 35(3) of the BNSS, 2023. Therefore, the power of
arrest under Section 35(6) of the BNSS, 2023 is to be
exercised rather sparingly, only under circumstances as
aforementioned. ”

10.2. The High Court of Telangana in NALLA BALU v. STATE
OF TELANGANA has held as follows:
“…. …. ….

29. Before parting with this judgment, this Court
considers it necessary to make certain observations. Having
regard to the factual and legal position discussed herein, and
with a view to safeguarding fundamental rights as well as
preventing the criminal process from being invoked
mechanically or arbitrarily, it is appropriate to prescribe a set of
operational guidelines for police authorities and Judicial
Magistrates when dealing with proceedings initiated on the basis
of social media posts. These directions are particularly
relevant in cases where the registration of First
Information Reports (FIRs) is sought in connection with
such posts. Accordingly, the police authorities are
directed to adhere to the following guidelines:

i. Verification of locus standi: Before registering any
FIR for alleged defamation or similar offences, the police
must verify whether the complainant qualifies as the
“person aggrieved” in terms of law. Complaints by
unrelated third parties lacking standing are not
maintainable, except where the report concerns a
cognizable offence.

ii. Preliminary inquiry in cognizable offences: Where
a representation/complaint discloses a cognizable
offence, the police shall, prior to registration of crime,

- 40 -


conduct a preliminary inquiry to ascertain whether the
statutory ingredients of the alleged offence are, prima
facie, made out.

iii. High threshold for media post/speech-related
offences: No case alleging promotion of enmity,
intentional insult, public mischief, threat to public order,
or sedition shall be registered unless there exists prima
facie material disclosing incitement to violence, hatred,
or public disorder. This threshold must be applied in line
with the principles laid down in Kedar Nath Singh v. State
of Bihar , 1962 Supp (2) SCR 769, and Shreya
Singhal v. Union of India , (2015) 5 SCC 1.

iv . Protection of political speech/post: The police
shall not mechanically register cases concerning harsh,
offensive, or critical political speech. Only when the
speech amounts to incitement to violence or poses an
imminent threat to public order may criminal law be
invoked. Constitutional protections for free political
criticism under Article 19(1)(a) of the Constitution must
be scrupulously enforced .

v. Defamation as a non-cognizable offence : Since
defamation is classified as a non-cognizable offence, the
police cannot directly register an FIR or crime in such
matters. The complainant must be directed to approach
the jurisdictional Magistrate. Police action may follow
only upon a specific order of the Magistrate under Section
174(2) of the BNSS.

vi. Compliance with arrest guidelines: In all cases,
the police shall strictly comply with the principles laid
down in Arnesh Kumar v. State of Bihar , (2014) 8 SCC
273. Automatic or mechanical arrests are impermissible,
and the principle of proportionality in the exercise of
criminal process must be observed.

vii. Prior legal scrutiny in sensitive cases: In
matters involving political speech/post or other sensitive
forms of expression, the police shall obtain prior legal
opinion from the Public Prosecutor before registering an

- 41 -


FIR, to ensure that the proposed action is legally
sustainable.

viii. Frivolous or motivated complaints: Where a
complaint is found to be frivolous, vexatious, or politically
motivated, the police shall close the matter under Section
176(1) of the BNSS, citing absence of sufficient grounds
for investigation. ”

10.3. In STATE OF TELANGANA v. NALLA BALU while
affirming the findings of the High Court of Telangana, the Apex
Court has held as follows:
“…. …. ….
6. However, the State has something to say as regards
the broad guidelines laid down by the High Court as contained in
para 29 of the impugned judgment is concerned. According to
Mr. Luthra, the guidelines issued by the High Court are
inconsistent with each other and in such circumstances he urged
that this Court should look into the guidelines and rectify the
inconsistencies. Para 29 reads thus:-

“29. Before parting with this judgment, this Court
considers it necessary to make certain observations.
Having regard to the factual and legal position discussed
herein, and with a view to safeguarding fundamental
rights as well as preventing the criminal process from
being invoked mechanically or arbitrarily, it is
appropriate to prescribe a set of operational guidelines
for 3 police authorities and Judicial Magistrates when
dealing with proceedings initiated on the basis of social
media posts. These directions are particularly relevant in
cases where the registration of First Information Reports
(FIRs) is sought in connection with such posts.
Accordingly, the police authorities are directed to adhere
to the following guidelines:

i. Verification of locus standi: Before registering
any FIR for alleged defamation or similar offences, the
police must verify whether the complainant qualifies as

- 42 -


the "person aggrieved" in terms of law. Complaints by
unrelated third parties lacking standing are not
maintainable, except where the report concerns a
cognizable offence.

ii. Preliminary inquiry in cognizable offences:
Where a representation/complaint discloses a cognizable
offence, the police shall, prior to registration of crime,
conduct a preliminary inquiry to ascertain whether the
statutory ingredients of the alleged offence are, prima
facie, made out.

iii. High threshold for media post/speech-related
offences: No case alleging promotion of enmity,
intentional insult, public mischief, threat to public order,
or sedition shall he registered unless there exists prima
facie material disclosing incitement to violence, hatred,
or public disorder. This threshold must be applied in line
with the principles laid down in Kedar Nath Singh v.
State of Bihar, 1962 Supp (2) SCR 769, and Shreya
Singhal v. Union of India, (2015) 5 SCC 1.

iv. Protection of political speech/post: The police
shall not mechanically register cases concerning harsh,
offensive, or critical political speech. Only when the
speech amounts to incitement to violence or poses an
imminent threat to public order may criminal law be
invoked. Constitutional protections for free political
criticism under Article 19(l)(a) of the Constitution must
be scrupulously enforced.

v. Defamation as a non-cognizable offence: Since
defamation is classified as a non-cognizable offence, the
police cannot directly register an FIR or crime in such
matters. The complainant must be directed to approach
the jurisdictional Magistrate. Police action may follow
only upon a specific order of the Magistrate under
Section 174(2) of the BNSS.

vi. Compliance with arrest guidelines: In all
cases, the police shall strictly comply with the principles
laid down in Arnesh Kumar v. State of Bihar, (2014) 8
SCC 273. Automatic or mechanical arrests are
impermissible, and the principle of proportionality in the
exercise of criminal process must be observed.

- 43 -


vii. Prior legal scrutiny in sensitive cases: In
matters involving political speech/post or other sensitive
forms of expression, the police shall obtain prior legal
opinion from the Public Prosecutor before registering an
FIR, to ensure that the proposed action is legally
sustainable.

viii. Frivolous or motivated complaints: Where a
complaint is found to be frivolous, vexatious, or
politically motivated, the police shall close the matter
under Section 176(1) of the BNSS, citing absence of
sufficient grounds for investigation.”

7. We have looked into para 29 threadbare. We are
of the view that we should not interfere with the
impugned judgment and order passed by the High Court
including the guidelines issued by the High Court .”

(Emphasis supplied at each instance)

The material placed on record raises two interconnected concerns:
the mechanical registration of successive crimes arising from the
same incident or social media expression, and the indiscriminate
exercise of police powers without adherence to statutory and
constitutional safeguards. The afore-quoted judgments in
SATENDER KUMAR ANTIL supra and NALLA BALU supra ,
provide the foundation for prescribing operational safeguards
against arbitrary invocation of the criminal process.
10.4. In SATENDER KUMAR ANTIL supra , the Apex Court
elucidates the distinction between the existence of the power to

- 44 -


arrest and the necessity of exercising that power. Section 35 of the
BNSS does not contemplate arrest as an automatic consequence of
registration of a crime. In offences punishable with imprisonment
extending up to seven years, the police must ordinarily resort to
notice under Section 35(3), where arrest is not necessary. Even
non-compliance with such notice does not invariably justify arrest.
The police officer must independently assess its necessity and
record reasons in writing. The constitutional guarantee of personal
liberty under Article 21 permeates the entire exercise. The power to
arrest is statutory; the justification for arrest must be factual,
reasonable and constitutionally sustainable.
10.4.1. The Apex Court in SATENDER KUMAR ANTIL supra,
refers to its earlier judgment in the case of JOGINDER KUMAR v.
STATE OF UTTAR PRADESH reported in (1994) 4 SCC 260 ,
wherein the Apex Court cautions that arrest cannot be effected
merely because the police possess the legal authority to do so. The
genuineness of the complaint, the material connecting the person to
the alleged offence and the necessity of custodial intervention must
receive independent consideration. An unjustified arrest inflicts

- 45 -


consequences upon personal liberty, reputation and dignity that
cannot be brushed aside as incidental to investigation.
10.5. In NALLA BALU supra, the High Court of Telangana
prescribed guidelines against mechanical registration of crimes
arising from social media posts, including scrutiny of the ingredients
of alleged offences, protection of political criticism, verification of
the complainant's standing in offences requiring an aggrieved
complainant, legal scrutiny in sensitive cases and restraint in arrest.
The material records that the Apex Court declined to interfere with
those guidelines.
11. Therefore, to prevent the mechanical registration of
crimes, multiplicity of proceedings arising from the same incident
and arbitrary exercise of police powers, this Court deems it
appropriate to issue the following guidelines to the jurisdictional
police authorities, subject always to the provisions of the BNSS and
the law declared by the Apex Court:
(i) Scrutiny of ingredients of the offence: Whenever a
complaint is received alleging commission of an offence arising from

- 46 -


a social media post, statement or expression, the jurisdictional
police shall examine whether the allegations, taken at their face
value, disclose the essential ingredients of the offence alleged. Mere
reproduction of the language of a penal provision shall not
substitute for factual allegations disclosing its ingredients.
(ii) Successive complaints concerning the same
incident: Where complaints arise from the same incident,
transaction or substantially identical social media expression, the
jurisdictional police shall ascertain whether a crime has already
been registered in relation thereto. Multiple complaints concerning
the same occurrence shall be dealt with in accordance with the
principles governing successive FIRs. A fresh crime shall not be
registered merely because the complainant is different, unless the
allegations disclose a legally distinct occurrence or an independently
registrable offence.
(iii) Preliminary inquiry wherever permissible: In cases
where a preliminary inquiry is permissible under Section 173(3) of
the BNSS and the law declared by the Apex Court, the jurisdictional
police shall consider its necessity and conduct it in strict conformity

- 47 -


with the statutory conditions, requisite permission and prescribed
timelines. Such inquiry shall not become a device to avoid
registration of a cognizable offence where registration is mandated
by law.
(v) Specific scrutiny under Section 353(2) of the BNS:
Before invoking Section 353(2) of the BNS, the jurisdictional police
shall examine whether the impugned statement, rumour, report or
expression satisfies the specific ingredients prescribed under that
provision, including the requisite intent and its relationship to the
classes or communities contemplated therein. Mere criticism or
expression of disagreement shall not be mechanically brought
within its ambit.
(ix) No mechanical arrest: Registration of a crime shall not
automatically result in arrest. The jurisdictional police shall strictly
comply with Section 35 of the BNSS and the principles laid down by
the Apex Court in SATENDER KUMAR ANTIL supra , JOGINDER
KUMAR supra and ARNESH KUMAR v. STATE OF BIHAR
reported in (2014) 8 SCC 273 . Wherever the statutory conditions

- 48 -


for arrest are not satisfied, the procedure contemplated under
Section 35(3) of the BNSS shall be followed.
(xiii) Institutional accountability: The Director General
and Inspector General of Police, State of Karnataka, shall ensure
that the principles governing registration of crimes, protection of
freedom of expression and safeguards against unnecessary arrest
are brought to the notice of all jurisdictional police officers through
appropriate administrative instructions.

12. For the aforesaid reasons, the following:

O R D E R

(i) Criminal Petition is allowed.

(ii) FIR in Crime No.88 of 2026 registered by the Puttur
Police Station and pending before the Principal Senior
Civil Judge & ACJM, Puttur stands quashed.

(iii) The guidelines elucidated by the Apex Court in
SATENDER KUMAR ANTIL, the High Court of
Telangana in NALLA BALU and the ones enumerated in
the course of the order shall be scrupulously followed in

- 49 -


letter and spirit. The Director-General and Inspector
General of Police shall ensure strict compliance.


Consequently, I.A.No.1 of 2026 also stands disposed.







Sd/-
(M.NAGAPRASANNA)
JUDGE



bkp