SRI AMITH MALVIYA vs THE STATE OF KARNATAKA
- Court
- Karnataka High Court
1
Reserved on : 02.09.2026
Pronounced on : 16.10.2026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 16 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.7434 OF 2025
BETWEEN:
1. SRI AMITH MALVIYA
C/O KAUSHLENDRA KUMAR MALVIYA,
AGED ABOUT 47 YEARS,
RESIDING AT NO.H.NO.06
OFFICERS FLATS, MEENA BAGH,
NARIMAN BHAVAN,
CENTRAL DELHI
PIN CODE – 110 011.
...PETITIONER
Digitally
signed by
CHAYA S A
Location:
High Court
of Karnataka
(BY SRI M.ARUNA SHYAM, SR.ADVOCATE A/W
SRI SUYOG HERELE E., ADVOCATE)
AND:
1.
THE STATE OF KARNATAKA
THROUGH HIGH GROUNDS PS,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA BUILDING,
BENGALURU – 560 001.
2
2. SRI SHRIDHAR M.M.,
S/O MUNIRAO
AGED ABOUT 34 YEARS
RESIDING AT NO 45,
MALLAHALLI VILLAGE,
MALURU TALUK, KOLAR,
KARNATAKA – 563 114.
...RESPONDENTS
(BY SRI B.N.JAGADEESHA, SPP-I FOR R-1;
SRI C.M.DHANANJAYA, ADVOCATE FOR R-2)
THIS CRL.P IS FILED U/S 528 OF BNSS., PRAYING TO
ALLOW THIS CRIMINAL PETITION AND QUASH THE FIR AND
COMPLAINT IN CR.NO.0133/2025 FOR THE ALLEGED OFFENCES
P/U/S 192 AND 353 OF THE BNS, 2023 REGISTERED BY THE
RESPONDENT HIGH GROUNDS P.S., ON THE FILE OF (LEARNED
ST
1 ADDL. CMM COURT, NRUPATUNGA ROAD, BANGALORE CITY)
ALONG WITH OTHER CONSEQUENTIAL RELIEFS, PRODUCED AT
DOCUMENT NO.1 AND 2.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 02.09.2026, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
3
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before the Court calling in question
registration of a crime in Crime No.133 of 2025 registered for
offences punishable under Sections 192 and 353 of the BNS.
2. Heard Sri M. Aruna Shyam, learned senior counsel
appearing for the petitioners, Sri B.N. Jagadeesha, learned State
Public Prosecutor-I appearing for respondent No.1 and
Sri C.M. Dhananjaya, learned counsel appearing for respondent
No.2.
3. Facts, in brief, germane are as follows: -
nd
The 2 respondent is the complainant. A complaint comes to
be registered on 20-05-2025 alleging that the petitioner on the said
day had posted an edited photo of Sri Rahul Gandhi, leader of the
opposition in the Loksabha on his ‘X’ handle and also posted that,
despite clarification given by the DGMO, Sri Rahul Gandhi is
speaking the language of Pakistan and its beneficiary, by
4
questioning the Armed Forces regarding the fighter jets that were
lost during Operation Sindoor and that the leader of the opposition
did not enquire the loss and damage incurred by Pakistan. Based
upon the aforesaid fulcrum, the crime for the afore-quoted offences
comes to be registered. The registration of the crime drives the
petitioner to this Court in the subject petition.
4. The learned senior counsel representing the petitioner
would vehemently contend that the registration of crime is an
abuse of the process of law as, what the petitioner had posted on
his 'X' handle was, despite the clarification given by the DGMO, the
language of Pakistan was being spoken by the leader of the
opposition. The learned senior counsel would contend that
registration of crime itself is an abuse of the process of law. He
would thus seek quashment of the proceedings.
5. Per contra , the learned State Public Prosecutor - I and the
learned counsel appearing for the complainant would in unison
contend that the crime is registered on 20-05-2025, the petition is
filed on 22-05-2025 and an interim order of stay is granted on the
same day before the Vacation Bench. They would, therefore,
5
contend that investigation, in the least, must be permitted in the
case at hand.
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 lie in a narrow compass, as what
has triggered registration of crime is the complaint so registered by
nd
the 2 respondent which reads as follows:
“Sridhara M.M., Date:20.5.2025
State vice president
Youth congress legal cell karnataka
To,
The police inspector high grounds
police station bangalore
Subject: Complaint to register _FIR against Mr. Amit Malviya
(National Convener, IT Cell, BJP) for spreading false & malicious
information against Shri Rahul Gandhi ji (Member of Lok
Sabha).
Sir,
I am writing this to bring to your notice the false, malicious and
provocative post by Mr. Amit Malviya (National Convener, IT
Cell, BJP) on X (formerly known as Twitter) on 20.05.2025. The
post and photo posted by Mr. Amit Malviya from his X handle
6
'@amitmalviya' along with the link to the post are reproduced
below:
https://x.com/amitmalviya/status/1924681557639627225?t=U
QenX97dNr8GilIV9_V9 kw&s=08%0A
"It is not surprising that Rahul Gandhi is speaking the
language of Pakistan and its benefactors. He hasn't
congratulated the Prime Minister on the flawless
#OperationSindoor, which unmistakably showcases
India's dominance. Instead, he repeatedly asks how
many jets we lost- a question that has already been
addressed in the DGMO briefings. Curiously, he hasn’t
once inquired about how many pakistani jets were shot
down during the conflict, or how many were destroyed
while parked in their hangars when Indian forces
pounded Pakistani air bases What’s next for Rahul
Gandhi? The Nishan-e-Pakistan?"
It can be clearly seen in this poster that Shri Rahul Gandhi ji is
being portrayed as a counter part to Pakistan's Army Chief
Mr. Asim Munir which is clearly false, malicious, provocative and
has the tendency to incite feelings of enmity towards Shri Rahul
Gandhi ji & the Indian National Congress.
Our country is going through testing times with the ongoing
violent conflict with Pakistan in which several Indian Citizens
and Military Officers have lost their lives. During such war like
situation, Mr. Amit Malviya by posting such malicious content
which not only has the tendency to incite violence against Shri
7
Rahul Gandhi ji and to promote enmity towards the Congress
Party, but is also prejudicial towards national integrity and
peace & harmony in the society in such testing times.
The Congress party has made it unequivocally clear in its official
statements that it whole heartedly stands behind the Indian
Armed Forces and supports the Indian Government in its efforts
to give a befitting reply in response to the terror attack in
Pahalgam. Shri Rahul Gandhi ji had raised questions pursuant to
the External Affairs Minister Shri S.Jaishankar's interview in
which he told the media that he had passed on information to
Pakistan about India's Military Operations even before Operation
Sindoor began. Therefore, Shri Rahul Gandhi ji had acted to
protect National Interests by questioning the External Affairs
Minister conduct.
Mr. Amit Malviya by making such statements has clearly acted
against national interests at a time when the whole country
needs to stay united and leave aside political differences and
political ideologies and back our Armed Forces whole heartedly.
Such false propaganda by Mr. Amit Malviya is clearly part of a
larger conspiracy to gain political mileage out of the bravery
shown by the Indian Armed Forces
Therefore, it becomes imperative to clamp down on such anti-
national elements in order to maintain peace and harmony in
the society in these testing times.
In view of the above, it is requested that a FIR be lodged
against Mr. Amit Malviya under section 192, 196, 197, 353 and
356 of the Bharatiya Nyaya Sanhita.”
Whether this would attract the ingredients of Sections 192 and 353
of the BNS need not detain this Court for long or delve deep into
the matter.
8
8.1. The Apex Court in the case of IMRAN PRATHAPGADHI
1
v. STATE OF GUJARAT has interpreted the ingredients of the
offence under Section 196 of the BNS, which is identical to the
offences alleged in the case at hand. The Apex Court holds 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.
…. …. ….
1
(2026) 1 SCC 721
9
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,
10
directly or indirectly, to bring hatred or contempt
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
11
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 .
[ 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
12
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
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
13
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 .”
8.2. Earlier to the afore-quoted judgment, the Apex Court in
the case of JAVED AHMAD HAJAM v. STATE OF
14
2
MAHARASHTRA , while interpreting Section 153A of the erstwhile
regime - the IPC, 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
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
2
(2024) 4 SCC 156
15
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
appellant has a photograph of two barbed wires, below which it
AUGUST BLACK DAY JAMMU KASHMIR
is mentioned that “ 5 — — & ”. 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.
16
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
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.
17
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-A
IPC will be a gross abuse of the process of law.”
8.3. Both these judgments followed the judgment of the Apex
3
Court in PATRICIA MUKHIM v. STATE OF MEGHALAYA wherein
it is held 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 tranquility, 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
3
(2021) 15 SCC 35
18
Sayeed Khan v. State of Maharashtra , (2007) 5 SCC 1:
(2007) 2 SCC (Cri) 417].
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
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
19
(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
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
20
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] .
14. India is a plural and multicultural society. The
promise of liberty, enunciated in the Preamble, manifests
itself in various provisions which outline each citizen's
rights; they include the right to free speech, to travel
freely and settle (subject to such reasonable restrictions
that may be validly enacted) throughout the length and
breadth of India. At times, when in the legitimate
exercise of such a right, individuals travel, settle down or
carry on a vocation in a place where they find conditions
conducive, there may be resentments, especially if such
citizens prosper, leading to hostility or possibly violence.
In such instances, if the victims voice their discontent,
and speak out, especially if the State authorities turn a
blind eye, or drag their feet, such voicing of discontent is
really a cry for anguish, for justice denied — or delayed.
This is exactly what appears to have happened in this
case.
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
made by the DorbarShnong, 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
21
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.”
8.4. Again, the Apex Court in the case of MITHUN
4
CHAKRAVARTY DEVIDAS SHET v. STATE OF KARNATAKA has
held as follows:
“ O R D E R
1. Leave granted.
2. We have heard learned senior counsel for the appellant
and learned counsel appearing for the State. Despite notice
being served, there was no representation on behalf of the
contesting respondent, on the earlier occasion. The same
position continues even today.
3. The proceedings have been initiated against the
appellant at the instance of the contesting respondent for
making the derogatory remark of ‘ayogya’.
4. Learned senior counsel appearing for the appellant
submitted that the said statement is not derogatory and has to
be seen contextually.
5. Learned counsel for the State submitted that whether
the offence is made out or not is a matter for trial.
6. The appellant has been charged for the offences
punishable under Sections 153-A, 153-B and 505 of the
Indian Penal Code, 1860 along with the provisions of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (for short the ‘SC/ST Act’).
4
S.L.P.No.14305 of 2024 decided on 25-07-2025
22
7. The High Court itself has quashed the charges
with respect to the provisions of the SC/ST Act. What
remains and is now before us are the other provisions of
the Indian Penal Code, 1860 with which the appellant has
been charged.
8. As rightly submitted by the learned senior
counsel appearing for the appellant, on a perusal of the
very complaint, we do not find that the ingredients are
made out. Continuing the proceedings against the
appellant would be a gross abuse of the process of law.
The statement made is subject to the interpretation in
different ways.
9. Considering the above and by taking note of the
fact that the contesting respondent is not interested in
prosecuting the matter, we are inclined to set aside the
impugned order.
10. Accordingly, the impugned order stands set aside.
The proceedings initiated against the appellants stand quashed.
11. The appeal is allowed accordingly.
12. Pending application(s), if any, shall stand disposed
of.”
The Apex Court in MITHUN CHAKRAVARTY DEVIDAS SHET ’s
case holds that since the complaint did not make out basic
ingredients of offence, permitting investigation even, would not be
necessary. The said finding would, on the face of it, become
applicable to the cases at hand. Therefore, permitting further
23
investigation even, against the petitioners, would become an abuse
of the process of law and result in miscarriage of justice.
9. It now becomes apposite to refer to decision of the Apex
5
Court in STATE OF HARYANA v. BHAJAN LAL wherein it is held
as follows:
“…. …. ….
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 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.
5
1992 Supp (1) SCC 335
24
(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.”
(Emphasis supplied at each instance)
25
9. For the aforesaid reasons, the following:
O R D E R
(i) Criminal Petition is allowed.
(ii) FIR in Crime No.133 of 2025 registered before High
Grounds Police Station and pending before the I
Additional Chief Metropolitan Magistrate, Bengaluru
stands quashed.
Pending applications, if any, stand disposed as a
consequence.
Sd/-
(M.NAGAPRASANNA)
JUDGE
Bkp
CT:MJ