JYOTHI R vs STATE OF KARNATAKA
- Court
- Karnataka High Court
- 1 -
HC-KAR
NC: 2026:KHC:60067
CRL.P No. 13589 of 2025
®
CNR: KAHC010637752025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 28 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO. 13589 OF 2025
(482(Cr.PC) / 528(BNSS)-)
BETWEEN
JYOTHI R
W/O RAVIKUMAR,
AGED ABOUT 30 YEARS,
KASABA HOBLI, MADDUR TALUK,
CHAMANAHALLI, MANDYA,
KARNATAKA - 571 429
...PETITIONER
(BY SRI.AIYAPPA K.G., ADVOCATE FOR
SRI.VASANTHA KUMARA., ADVOCATE)
AND
1. STATE OF KARNATAKA
BY MADDUR POLICE STATION, MANDYA
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
HIGH COURT BUILDING,
BENGALURU 560 001.
2. SHIVAKUMAR M.
POLICE INSPECTOR,
AGED ABOUT 45 YEARS,
MADDUR POLICE STATION, MADDUR,
MANDYA - 571 428
…RESPONDENTS
(BY SRI. RANJITH KUMAR N., HCGP FOR R1 & R2)
THIS CRIMINAL PETITION IS FILED U/S 482 CR.PC (FILED U/S 528
BNSS) PRAYING TO CALL FOR RELEVANT RECORDS AND QUASH THE FIR IN
CR.NO.201/2025 AGAINST THE PETITIONER HEREIN FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 196(1)(a) AND 299 OF BNS, 2023 ON THE
Digitally Signed By:
SURAJ GOVINDA RAJ
30/10/2026, 17:09, Bengaluru)
Verified
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CRL.P No. 13589 of 2025
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FILE OF MADDUR PS (ALSO PENDING ON THE FILE OF THE COURT OF THE
2ND ADDL.JMFC COURT MADDUR, MANDYA)
THIS CRIMINAL PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS ON 11.09.2026, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CAV ORDER
1. The Petitioner is before this Court seeking for the
following reliefs:
a. Call for the relevant records;
b. Quash the FIR in Crime No.201/2025 against the
Petitioner herein for the offence punishable u/s
196(1)(a) & 299 of BNS, 2023 on the file of Maddur
nd
PS (also pending on the file of the Court of the 2
Addl. JMFC Court Maddur, Mandya)
c. Issue any other order or directions as this Hon’ble
Court may deem fit in the light of the facts and
circumstances of the case, in the interest of justice
and equity.
2. Respondent No.2-Police Inspector lodged a complaint
on 11.09.2025, alleging that on 07.09.2025, at
around 07:00 p.m. when a peaceful Ganapati
procession was taking place, certain rioters pelted
stones from Sunni Circle, disturbing the celebration
and hurting the deep religious beliefs and faith.
Thereafter, a procession was taken to protest against
Digitally Signed By:
SURAJ GOVINDA RAJ
30/10/2026, 17:09, Bengaluru)
Verified
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CRL.P No. 13589 of 2025
CNR: KAHC010637752025
the police inaction in relation to the stone-pelting
incident. The police resorted to Lathi Charge. The
complaint describes the Petitioner as belonging to the
Vokkaliga community, working at a petrol bunk and
residing at Shivapura, Maddur Town. It alleges that
she made statements with the intention of hurting
religious and caste sentiments. In pursuance thereof,
o n 11.09.2025, Respondent No. 2 lodged the
following complaint:
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Digitally Signed By:
SURAJ GOVINDA RAJ
30/10/2026, 17:09, Bengaluru)
Verified
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NC: 2026:KHC:60067
CRL.P No. 13589 of 2025
CNR: KAHC010637752025
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3. The said complaint came to be registered as Crime
No.201 of 2025 at Maddur Police Station for offences
under Sections 196(1)(a) and 299 of the Bharatiya
Nyaya Sanhita, 2023 (“BNS”). It is alleged that the
Petitioner had made numerous provocative
statements on various TV channels. It is further
alleged that the Petitioner, described as an influencer,
made videos that were subsequently published on
various online platforms. Respondent No. 2 alleges
Digitally Signed By:
SURAJ GOVINDA RAJ
30/10/2026, 17:09, Bengaluru)
Verified
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that the conduct attracts the aforesaid provisions.
The Petitioner has filed this petition challenging the
registration of the said crime and seeking the
following reliefs.
4. Sri.Aiyappa.K.G., learned counsel for the Petitioner,
would submit that:
4.1. The Petitioner is innocent of the offences
alleged against her. Even if all the allegations in
the complaint are considered in their entirety,
they do not make out any offence insofar as the
Petitioner is concerned. He submits that in
terms of Sub-section (3) of Section 173 of the
BNSS, where the offences alleged are based on
spoken or written words and are punishable
with imprisonment of up to seven years , it is
mandatory for a preliminary enquiry to be
conducted. He submits that no such enquiry
was conducted and that, therefore, the
complaint could not have been registered.
4.2. His submission is that the safeguard under Sub-
section (3) of Section 173 of the BNSS is to
protect the fundamental right under Article
19(1)(a) of the Constitution and it is for that
reason that for the purpose of conducting a
Digitally Signed By:
SURAJ GOVINDA RAJ
30/10/2026, 17:09, Bengaluru)
Verified
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preliminary enquiry, the officer in-charge of the
police station ought to seek the prior
permission of an officer not below the rank of
Deputy Superintendent of Police.
4.3. Section 173 of the BNSS is reproduced
hereunder for ease of reference:
173. Information in cognizable cases;
(1)Every information relating to the commission
of a cognizable offence, irrespective of the area
where the offence is committed, may be given
orally or by electronic communication to an
officer in charge of a police station, and if given-
(i) orally, it shall be reduced to writing by him or
under his direction, and be read over to the
informant; and every such information, whether
given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it;
(ii) by electronic communication, it shall be taken
on record by him on being signed within three
days by the person giving it, and the substance
thereof shall be entered in a book to be kept by
such officer in such form as the State
Government may by rules prescribe in this
behalf:
Provided that if the information is given by
the woman against whom an offence under
section 64, section 65, section 66, section 67,
section 68, section 69, section 70, section 71,
section 74, section 75, section 76, section 77,
section 78, section 79 or section 124 of the
Bharatiya Nyaya Sanhita, 2023 is alleged to have
been committed or attempted, then such
information shall be recorded, by a woman police
officer or any woman officer:
Digitally Signed By:
SURAJ GOVINDA RAJ
30/10/2026, 17:09, Bengaluru)
Verified
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Provided further that-
(a) in the event that the person against whom an
offence under section 64, section 65, section 66,
section 67, section 68, section 69, section 70,
section 71, section 74, section 75, section 76,
section 77, section 78, section 79 or section 124
of the Bharatiya Nyaya Sanhita, 2023 is alleged
to have been committed or attempted, is
temporarily or permanently mentally or
physically disabled, then such information shall
be recorded by a police officer, at the residence
of the person seeking to report such offence or at
a convenient place of such person's choice, in the
presence of an interpreter or a special educator,
as the case may be;
(b) the recording of such information shall be
videographed;
(c) the police officer shall get the statement of
the person recorded by a Magistrate under clause
(a) of sub-section (6) of section 183 as soon as
possible.
(2)A copy of the information as recorded under
sub-section (1) shall be given forthwith, free of
cost, to the informant or the victim.
(3)Without prejudice to the provisions contained
in section 175, on receipt of information relating
to the commission of any cognizable offence,
which is made punishable for three years or
more but less than seven years, the officer in
charge of the police station may with the prior
permission from an officer not below the rank of
Deputy Superintendent of Police, considering the
nature and gravity of the offence,-
(i) proceed to conduct preliminary enquiry to
ascertain whether there exists a prima facie case
for proceeding in the matter within a period of
fourteen days; or
Digitally Signed By:
SURAJ GOVINDA RAJ
30/10/2026, 17:09, Bengaluru)
Verified
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(ii) proceed with investigation when there exists
a prima facie case.
(4)Any person aggrieved by a refusal on the part
of an officer in charge of a police station to
record the information referred to in sub-section
(1), may send the substance of such information,
in writing and by post, to the Superintendent of
Police concerned who, if satisfied that such
information discloses the commission of a
cognizable offence, shall either investigate the
case himself or direct an investigation to be
made by any police officer subordinate to him, in
the manner provided by this Sanhita, and such
officer shall have all the powers of an officer in
charge of the police station in relation to that
offence failing which such aggrieved person may
make an application to the Magistrate.
4.4. He relies on Imran Pratapgadhi v. State of
Gujarat [(2026) 1 SCC 721], more particularly
paragraphs 15, 28-31, 33-37, 42, 48-49, and
53.1-53.7 thereof, which are reproduced
hereunder for ease of reference.
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,
Digitally Signed By:
SURAJ GOVINDA RAJ
30/10/2026, 17:09, Bengaluru)
Verified
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community or any particular group. The poem's
words do not bring about or promote disharmony
or feelings of hatred or ill-will. It only seeks to
challenge the injustice made by the ruler. It is
impossible to say that the words used by the
appellant disturb or are likely to disturb public
tranquility. Therefore, neither clause (a) nor
clause (b) of Section 196(1) are attracted. There
is no allegation against the appellant of
organising any exercise, movement, drill or
similar activity. There is no allegation against the
appellant that he uttered the words in any place
of worship or in any
assembly engaged in the performance of
religious worship or religious ceremonies. Hence,
clause (c) will have no application. The appellant
has put a video of a mass marriage function, and
in the background, the words are uttered.
Therefore, Section 196 can have no application.
28. Section 154 CrPC does not provide for
making any preliminary inquiry. However, as
held in Lalita Kumari [Lalita Kumari v. State of
U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] ,
a preliminary inquiry is permissible if the
information received does not disclose a
cognizable offence and indicates the necessity for
an inquiry. A preliminary inquiry must be
conducted only to ascertain whether a cognizable
offence is disclosed. However, sub-section (3) of
Section 173 BNSS makes a significant departure
from Section 154CrPC. It provides that when
information relating to the commission of a
cognizable offence which is made punishable for
3 years or more but less than 7 years is received
by an officer in charge of a police station, with
the prior permission of a superior officer as
mentioned therein, the police officer is
empowered to conduct a preliminary inquiry to
ascertain whether there exists a prima facie case
for proceeding in the matter. However, under
Section 154CrPC, as held in Lalita Kumari [Lalita
Kumari v. State of U.P., (2014) 2 SCC 1 : (2014)
1 SCC (Cri) 524] , only a limited preliminary
Digitally Signed By:
SURAJ GOVINDA RAJ
30/10/2026, 17:09, Bengaluru)
Verified
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inquiry is permissible to ascertain whether
the information received discloses a
cognizable offence . Moreover, a preliminary
inquiry can be made under CrPC only if the
information does not disclose the commission of
a cognizable offence but indicates the necessity
for an inquiry. Sub-section (3) of Section 173
BNSS is an exception to sub-section (1) of
Section 173. In the category of cases
covered by sub-section (3), a police officer
is empowered to make a preliminary inquiry
to ascertain whether a prima facie case is
made out for proceeding in the matter even
if the information received discloses
commission of any cognizable offence. That
is very apparent as sub-section (3) of Section
173 refers explicitly to receiving information
relating to the commission of a cognizable
offence. Therefore, in a case where sub-section
(3) of Section 173 is applicable, even if the
information pertaining to the commission of any
cognizable offence is received, an inquiry can be
conducted to ascertain whether a prima facie
case exists for proceeding in the matter. The
intention appears to be to prevent the
registration of FIRs in frivolous cases where
punishment is up to 7 years, even if the
information discloses the commission of the
cognizable offence. However, under Section
154CrPC, the inquiry permitted by para 120.2 of
the decision in Lalita Kumari [Lalita Kumari v.
State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC
(Cri) 524] is limited only to ascertain whether
the cognizable offence is disclosed.
29. Under sub-section (3) of Section 173
BNSS, after holding a preliminary inquiry, if
the officer comes to a conclusion that a
prima facie case exists to proceed, he
should immediately register an FIR and
proceed to investigate. But, if he is of the
view that a prima facie case is not made out
to proceed, he should immediately inform
the first informant/complainant so that he
Digitally Signed By:
SURAJ GOVINDA RAJ
30/10/2026, 17:09, Bengaluru)
Verified
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can avail a remedy under sub-section (4) of
Section 173.
30. Before we go into the applicability of sub-
Section (3) of Section 173 of the BNSS to the
facts of the case, we must deal with sub-Section
(1) of Section 173. Take a case where a person
approaches an officer-in-charge of a police
station
either personally or by electronic communication
and alleges that he has seen ‘A’ assaulting ‘X’
with a stick. If the injury caused is simple, it will
be an offence punishable under Section 115 (2)
of the BNS. As per the first Schedule of the
BNSS, it is a non-cognizable offence. Therefore,
based on such information, FIR cannot be
registered. If grievous hurt is caused, it will be
an offence punishable under Section 117 (2) of
the BNS, which is a cognizable offence.
Therefore, the allegations made in the
information furnished to an officer-in-charge of a
police station must be examined by the officer
only with a view to ascertain whether a
cognizable offence is made out. Taking the
information as correct, the officer has to
determine whether it makes out a case of the
commission of a cognizable offence. If the
allegation makes out a case of a cognizable
offence, unless the offence falls in sub-Section
(3) of Section 173, it is mandatory to register
FIR.
31. Coming back to the offence punishable under
Section 196 of the BNS to decide whether the
words, either spoken or written or by sign or by
visible representations or through electronic
communication or otherwise, lead to the
consequences provided in the Section. The police
officer to whom information is furnished will have
to read or hear the words written or spoken, and
by taking the same as correct, decide whether an
offence under Section 196 is made out. Reading
of written words, or hearing spoken words will be
Digitally Signed By:
SURAJ GOVINDA RAJ
30/10/2026, 17:09, Bengaluru)
Verified
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necessary to determine whether the contents
make out a case of the commission of a
cognizable offence. The same is the case with
offences punishable under Sections 197, 299 and
302 of the BNS. Therefore, to ascertain whether
the information received by an officer-in-charge
of the police station makes out a cognizable
offence, the officer must consider the meaning of
the spoken or written words. This act on the part
of the police officer will not amount to making a
preliminary inquiry which is not permissible
under sub-Section (1) of Section 173.
33. Sub-Section (3) of Section 173 of the BNSS
confers a discretion on the officer receiving
information relating to the commission of a
cognizable offence to conduct a preliminary
inquiry to ascertain whether a prima facie case
exists to proceed. This option is available when
the offence alleged is made punishable for 3
years or more but less than 7 years. In the facts
of the case, all the offences except the offence
under Section 57 of the BNS are punishable by
imprisonment for less than 7 years. Section 57,
on the face of it, is not applicable. Therefore, this
option was also available to the police officer in
the present case. The officer did not exercise the
said option.
34. At this stage, we may refer to clause (a) of
Article 51-A of the Constitution, which reads
thus: “ 51-A. Fundamental duties.—It shall be the
duty of every citizen of India—to abide by the
Constitution and respect its ideals and
institutions, the National Flag and the National
Anthem;
35. The police officers must abide by the
Constitution and respect its ideals. The
philosophy of the Constitution and its ideals can
be found in the preamble itself. The preamble
lays down that the people of India have solemnly
resolved to constitute India into a sovereign,
socialist, secular, democratic republic and to
Digitally Signed By:
SURAJ GOVINDA RAJ
30/10/2026, 17:09, Bengaluru)
Verified
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secure all its citizens liberty of thought,
expression, belief, faith and worship. Therefore,
liberty of thoughts and expression is one of the
ideals of our Constitution. Article 19(1)(a)
confers a fundamental right on all citizens to
freedom of speech and expression. The police
machinery is a part of the State within the
meaning of Article 12 of the Constitution.
Moreover, the police officers being citizens, are
bound to abide by the Constitution. They are
bound to honour and uphold freedom of speech
and expression conferred on all citizens.
36. Clause (2) of Article 19 of the Constitution
carves out an exception to the fundamental right
guaranteed under sub-clause (a) of clause (1) of
Article 19. If there is a law covered by clause (2),
its operation remains unaffected by sub-clause
(a) of clause (1). We must remember that laws
covered by the clause (2) are protected by way
of an exception provided they impose a
reasonable restriction. Article 19(2) is an
exception to the freedom enumerated under
Article 19(1)(a).
37. The reasonable restrictions provided for in
Article 19(2) must remain reasonable and not
fanciful and oppressive. Article 19(2) cannot be
allowed to overshadow the substantive rights
under Article 19(1), including the right to
freedom of speech and expression. Therefore,
when an allegation is of the commission of an
offence covered by the law referred to in clause
(2) of Article 19, if sub-Section (3) of Section
173 is applicable, it is always appropriate to
conduct a preliminary inquiry to ascertain
whether a prima facie case is made out to
proceed against the accused. This will ensure
that the fundamental rights guaranteed under
sub-clause (a) of clause (1) of Article 19 remain
protected. Therefore, in such cases, the higher
police officer referred to in sub-Section (3) of
Section 173 must normally grant permission to
the police officer to conduct a preliminary
Digitally Signed By:
SURAJ GOVINDA RAJ
30/10/2026, 17:09, Bengaluru)
Verified
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inquiry. Therefore, when the commission of
cognizable offences is alleged, where
punishment is for imprisonment up to 7
years, which is based on spoken or written
words, it will always be appropriate to
exercise the option under sub-Section (3)of
Section 173 and conduct a preliminary
inquiry to ascertain whether there exists a
prima facie case to proceed. If an option
under sub-Section (3) is not exercised by
the police officer in such a case, he may end
up registering an FIR against a person who
has exercised his fundamental right under
Article 19 (1)(a) even though clause (2) of
Article 19 is not attracted. If, in such cases,
the option under sub-Section (3) of Section
173 is not exercised, it will defeat the very
object of incorporating sub-Section (3) of
Section 173 of the BNSS and will also defeat
the obligation of the police under Article 51-
A (a).
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-A IPC 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
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those who always perceive criticism as a
threat to their power or position.
IMPORTANCE OF THE FREEDOM OF
EXPRESSION AND THE DUTY OF THE
COURTS
48. Free expression of thoughts and views by
individuals or groups of individuals is an integral
part of a healthy, civilised society. Without
freedom of expression of thoughts and views, it
is impossible to lead a dignified life guaranteed
by Article 21 of the Constitution. In a healthy
democracy, the views, opinions or thoughts
expressed by an individual or group of individuals
must be countered by expressing another point
of view. Even if a large number of persons dislike
the views expressed by another, the right of the
person to express the views must be respected
and protected. Literature including poetry,
dramas, films, stage shows, satire and art, make
the life of human beings more meaningful.
49. The Courts are duty-bound to uphold and
enforce fundamental rights guaranteed under the
Constitution of India. Sometimes, we, the
Judges, may not like spoken or written words.
But, still, it is our duty to uphold the fundamental
right under Article 19 (1)(a). We Judges are also
under an obligation to uphold the Constitution
and respect its ideals. If the police or executive
fail to honour and protect the fundamental rights
guaranteed under Article 19 (1)(a) of the
Constitution, it is the duty of the Courts to step
in and protect the fundamental rights. There is
no other institution which can uphold the
fundamental rights of the citizens.
53. Following is the summary of our conclusions:
53.1. Sub-Section (3) of Section 173 of the
BNSS makes a significant departure from Section
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154 of CrPC. It provides that when information
relating to the commission of a cognizable
offence which is made punishable for 3 years or
more but less than 7 years is received by an
officer-in-charge of a police station, with the
prior permission of a superior officer as
mentioned therein, the police officer is
empowered to conduct a preliminary inquiry to
ascertain whether there exists a prima facie case
for proceeding in the matter. However, under
Section 154 of the CrPC, as held in the case of
Lalita Kumari, only a limited preliminary inquiry
is permissible to ascertain whether the
information received discloses a cognizable
offence. Moreover, a preliminary inquiry can be
made under the CrPC only if the information does
not disclose the commission of a cognizable
offence but indicates the necessity for an inquiry.
Sub-Section (3) of Section 173 of the BNSS is an
exception to sub-Section (1) of Section 173. In
the category of cases covered by sub-Section
(3), a police officer is empowered to make a
preliminary inquiry to ascertain whether a prima
facie case is made out for proceeding in the
matter even if the information received discloses
commission of any cognizable offence.
53.2. Under sub-Section (3) of Section 173 of
the BNSS, after holding a preliminary inquiry, if
the officer comes to a conclusion that a prima
facie case exists to proceed, he should
immediately register an FIR and proceed to
investigate. But, if he is of the view that a prima
facie case is not made out to proceed, he should
immediately inform the first
informant/complainant so that he can avail a
remedy under sub-Section (4) of Section 173.
53.3 . In case of the offence punishable under
Section 196 of the BNS to decide whether the
words, either spoken or written or by sign or by
visible representations or through electronic
communication or otherwise, lead to the
consequences provided in the Section, the police
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officer to whom information is furnished will have
to read or hear the words written or spoken, and
by taking the same as correct, decide whether an
offence under Section 196 is made out. Reading
of written words, or hearing spoken words will be
necessary to determine whether the contents
make out a case of the commission of a
cognizable offence. The same is the case with
offences punishable under Sections 197, 299 and
302 of BNS. Therefore, to ascertain whether the
information received by an officer-in-charge of
the police station makes out a cognizable
offence, the officer must consider the meaning of
the spoken or written words. This act on the part
of the police officer will not amount to making a
preliminary inquiry which is not permissible
under sub-Section (1) of Section 173
53.4. The police officers must abide by the
Constitution and respect its ideals. The
philosophy of the Constitution and its ideals can
be found in the preamble itself. The preamble
lays down that the people of India have solemnly
resolved to constitute India into a
sovereign,socialist, secular democratic republic
and to secure all its citizens liberty of thought,
expression, belief, faith and worship. Therefore,
liberty of thought and expression is one of the
ideals of our Constitution. Article 19(1)(a)
confers a fundamental right on all citizens to
freedom of speech and expression. The police
machinery is a part of the State within the
meaning of Article 12 of the Constitution.
Moreover, the police officers being citizens, are
bound to abide by the Constitution. They are
bound to honour and uphold freedom of speech
and expression conferred on all citizens.
53.5. Clause (2) of Article 19 of the Constitution
carves out an exception to the fundamental right
guaranteed under sub-clause (a) of clause (1) of
Article 19. If there is a law covered by clause (2),
its operation remains unaffected by sub-clause
(a) of clause (1). We must remember that laws
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covered by the clause (2) are protected by way
of an exception provided they impose a
reasonable restriction. Therefore, when an
allegation is of the commission of an offence
covered by the law referred to in clause (2) of
Article 19, if sub-Section (3) of Section 173 is
applicable, it is always appropriate to conduct a
preliminary inquiry to ascertain whether a prima
facie case is made out to proceed against the
accused. This will ensure that the fundamental
rights guaranteed under sub-clause (a) of clause
(1) of Article 19 remain protected. Therefore, in
such cases, the higher police officer referred to in
sub-Section (3) of Section 173 must normally
grant permission to the police officer to conduct
a preliminary inquiry.
53.6 When an offence punishable under Section
196 of BNS is alleged, the effect of the spoken or
written words will have to be considered based
on standards of reasonable, strong-minded, firm
and courageous individuals and not based on the
standards of people with weak and oscillating
minds. The effect of the spoken or written words
cannot be judged on the basis of the standards
of people who always have a sense of insecurity
or of those who always perceive criticism as a
threat to their power or position.
53.7 There is no absolute rule that when the
investigation is at a nascent stage, the High
Court cannot exercise its jurisdiction to quash an
offence by exercising its jurisdiction under Article
226 of the Constitution of India or under Section
482 of the CrPC equivalent to Section 528 of the
BNSS. When the High Court, in the given case,
finds that no offence was made out on the face
of it, to prevent abuse of the process of law, it
can always interfere even though the
investigation is at the nascent stage. It all
depends on the facts and circumstances of each
case as well as the nature of the offence. There
is no such blanket rule putting an embargo on
the powers of the High Court to quash FIR only
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on the ground that the investigation was at a
nascent stage.
4.5. By relying on Imran Pratapgadhi’s case,
learned counsel submits that the allegations,
even if accepted in their entirety, do not attract
Section 196 of the Bharatiya Nyaya Sanhita,
2023 (BNS). It is submitted that every
objectionable or offensive expression does not
constitute an offence under the said provision;
the words, read as a whole and in their proper
context, must promote or attempt to promote
disharmony or feelings of enmity, hatred or ill-
will between the groups or communities
specified therein.
4.6. Learned counsel submits that the effect of the
words must be assessed from the standpoint of
reasonable, strong-minded and firm individuals,
and not on the basis of hypersensitive reactions
or subjective perceptions. Freedom of speech
and expression under Article 19(1)(a) of the
Constitution must inform the application of
penal provisions, and unpopular or disliked
expression cannot, by itself, justify criminal
prosecution.
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4.7. Learned counsel further submits that, under
Section 173(3) BNSS, where the statutory
conditions are satisfied, a preliminary inquiry is
ordinarily appropriate in cases involving alleged
offences arising from spoken or written
expression, to ascertain whether a prima facie
case exists and to safeguard the fundamental
right to freedom of speech and expression. The
police must examine the meaning and context
of the words to determine whether the essential
ingredients of the alleged offence are disclosed.
4.8. Learned counsel submits that even at the
nascent stage of investigation there is no bar
on the High Court from exercising its
jurisdiction under Article 226 of the Constitution
or Section 528 BNSS. Where the allegations, on
their face, do not disclose an offence, the Court
may intervene to prevent abuse of the process
of law. Accordingly, it is submitted that, in the
absence of the essential ingredients of Section
196 BNS, the impugned criminal proceedings
are liable to be quashed.
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4.9. In the present case, the allegation against the
Petitioner is founded upon the following words
allegedly spoken by her:
“
/ಾನು
ೇಳದು ಇaೆ ೕ ;ದ9ಾಮಯ" ಏ,Eಾ9ೆ. ಅವೆ
[ೇcO(, ಒಂದು ಾತು. ,ೕವ] ಮುಸ$ಾJನವೆ
,
ಸೕd5 ಾeೋEಾEೆP ,ೕವ] fಾ
ೆ ಬಂದು ಎ$ೆg
ಬಂದು ,ಂ<ೊ"ೕO9ಾ Bಾ. BಾಬುPೆ ಹುh .9ಾ ಆಗEೆP
,ೕವ]”
4.10. The allegation is essentially that the Petitioner
made certain objectionable remarks referring to
Muslims and that the said statement was
subsequently recorded and circulated on social
media. However, Section 196(1)(a) BNS
requires the words or acts to promote or
attempt to promote disharmony or feelings of
enmity, hatred or ill-will between different
communities. Mere use of an offensive or
derogatory expression, even if capable of
hurting the sentiments of a community, does
not by itself satisfy this statutory requirement.
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4.11. He further submits that in Imran
Pratapgadhi , the Hon’ble Supreme Court has
emphasised that the effect of the alleged
speech must be assessed objectively, from the
standpoint of reasonable, strong-minded, firm
and courageous persons, and not on the basis
of the reaction of persons who are unduly
sensitive to criticism. Applying that test, the
alleged statement, read in its entirety and in its
context, does not disclose any exhortation to
commit violence, retaliate against another
community, or create hostility between
communities.
4.12. He submits that the police report itself states
that the video was recorded and circulated by
“some persons”. There is no allegation that the
Petitioner herself circulated the video or
directed its dissemination. The subsequent
conduct of third parties cannot, by itself, supply
the missing ingredient of promotion or
attempted promotion of communal enmity on
the part of the Petitioner.
4.13. He submits that the report also refers to the
earlier stone-pelting incident on 07.09.2025,
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the procession on 08.09.2025, the town bandh
on 09.09.2025 and the proposed Ganesh
immersion on 10.09.2025. These events explain
the pre-existing law-and-order situation and the
deployment of police personnel. There is,
however, no specific allegation or material
showing that the Petitioner's statement caused,
contributed to, or was likely to cause a
disturbance of public tranquillity so as to attract
Section 196(1)(b) BNS.
4.14. The allegation that the Petitioner deliberately
intended to hurt the religious sentiments of
another community also does not, by itself,
constitute an offence under Section 196 BNS.
The statutory requirement is promotion or
attempted promotion of disharmony, enmity,
hatred or ill-will between the specified groups,
and the two concepts cannot be treated as
interchangeable.
4.15. Imran Pratapgadhi is also relevant with
regard to Section 173(3) BNSS. Where the
alleged cognizable offence falls within the
punishment range contemplated by the
provision, the statute permits, subject to the
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prescribed conditions and prior permission, a
preliminary inquiry to ascertain whether a
prima facie case exists. The police record must
therefore disclose compliance with the statutory
requirements, if the provision was invoked.
4.16. Thus, the allegations, even taken at their
highest, disclose at most an allegation of an
objectionable statement. They do not disclose
the essential statutory nexus between the
alleged words and the promotion or attempted
promotion of communal disharmony, enmity,
hatred or ill-will, nor do they disclose the
ingredients concerning disturbance or likelihood
of disturbance of public tranquillity.
4.17. It is therefore submitted that the FIR does not
disclose the commission of an offence under
Section 196 BNS and that continuation of the
proceedings would amount to permitting the
criminal process to operate in the absence of
the foundational ingredients of the offence. The
FIR and all consequential proceedings are
accordingly liable to be quashed.
4.18. Section 196 of the BNS is reproduced
hereunder for ease of reference:
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Promoting enmity between different groups
on grounds of religion, race, place of birth,
residence, language, etc., and doing acts
prejudicial to maintenance of harmony
196. (1) Whoever—
a) by words, either spoken or written, or by signs
or by visible representations or through
electronic communication or otherwise, promotes
or attempts to promote, on grounds of religion,
race, place of birth, residence, language, caste or
community or any other ground whatsoever,
disharmony or feelings of enmity, hatred or ill-
will between different religious, racial, language
or regional groups or castes or communities; or
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) organises any exercise, movement, drill or
other similar activity intending that the
participants in such activity shall use or be
trained to use criminal force or violence or
knowing it to be likely that the participants in
such activity will use or be trained to use criminal
force or violence, or participates in such activity
intending to use or be trained to use criminal
force or violence or knowing it to be likely that
the participants in such activity will use or be
trained to use criminal force or violence, against
any religious, racial, language or regional group
or caste or community and such activity for any
reason whatsoever causes or is likely to cause
fear or alarm or a feeling of insecurity amongst
members of such religious, racial, language or
regional group or caste or community, shall be
punished with imprisonment which may extend
to three years, or with fine, or with both.
(2) Whoever commits an offence specified in
sub-section (1) in any place of worship or in any
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assembly engaged in the performance of
religious worship or religious ceremonies, shall
be punished with imprisonment which may
extend to five years and shall also be liable to
fine.
4.19. Placing reliance on Section 196 of the BNS, he
submits that Section 196 requires a clear and
deliberate act of promoting enmity between
different groups. In the present case, according
to him, there is no such enmity which is
promoted between different groups. His
submission is that mere use of intemperate or
objectionable language would not be an offence
under Section 196(1)(a) of BNS. In that regard,
he again relies on Imran Pratapgadhi, more
particularly para 15 thereof, which has been
reproduced hereinabove.
4.20. He relies on a decision of the Co-ordinate Bench
of this Court in Sri Basanagouda R Patil vs.
State of Karnataka [Crl.P.No.13650 of 2024
dated 30.01.2025], more particularly para 10
thereof, which is reproduced hereunder for ease
of reference;
10. The issue in the case at hand as what should
be the ingredients of the afore-quoted offences
need not detail this Court for long or delve deep
into the matter as the Apex Court in the case of
PATRICIA MUKHIM v. STATE OF
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MEGHALAYA1 interpreting both Sections 153A
and 505(1) of the IPC, has held as follows:
“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 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:
“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
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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 tranquility, or
(c) organises any exercise, movement, drill
or other similar activity intending that the
participants in such activity shall use or be
trained to use criminal force or violence or
knowing it to be likely that the participants
in such activity will use or be trained to use
criminal force or violence, or participates in
such activity intending to use or be trained
to use criminal force or violence or knowing
it to be likely that the participants in such
activity will use or be trained to use criminal
force or violence, against any religious,
racial, language or regional group or caste
or community and such activity, for any
reason whatsoever causes or is likely to
cause fear or alarm or a feeling of insecurity
amongst members of such religious, racial,
language or regional group or caste or
community,
shall be punished with imprisonment which
may extend to three years, or with fine, or
with both.
Offence committed in place of worship,
etc. — (2) Whoever commits an offence
specified in sub-section (1) in any place of
worship or in any assembly engaged in the
performance of religious worship or religious
ceremonies, shall be punished with
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imprisonment which may extend to five
years and shall also be liable to fine. *
505. Statements conducing to public
mischief.—(1) Whoever makes,
publishes or circulates any statement,
rumour or report— *
(c) with intent to incite, or which is
likely to incite, any class or community
of persons to commit any offence
against any other class or community,
shall be punished with imprisonment
which may extend to three years, or
with fine, or with both.”
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
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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] .
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
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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
Digitally Signed By:
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30/10/2026, 17:09, Bengaluru)
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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
DorbarShnong 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
nontribal youngsters playing
basketball. The Facebook post read in
its entirety pleads for equality of
nontribals 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
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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
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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 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.”
(Emphasis supplied).
If the complaint as afore-quoted is considered on
the touchstone of the principles elucidated by the
Apex Court in the judgment afore-quoted, the
inevitable inference would be obliteration of the
crime.
4.21. By relying on Sri Basanagouda R Patil’s case,
his submission is that speech is required to be
free. In order for the truth to emerge, there
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cannot be a restriction or imposition on the
exercise of freedom of speech. His submission
is that the manner in which the complaint has
been filed is to restrict such excise of
fundamental right of free speech, which is not
permissible.
4.22. His submission is that the use of the word
“promote” in Section 196 of BNS would not be a
mere description or narrating a fact, giving the
opinion or criticizing a particular action it
requires that there is an active incitement in
order to cause public disorder. According to
him, the statement made by the Petitioner
merely expressed displeasure and criticised the
actions of the police personnel; it was not
.
intended to incite violence
4.23. In this regard he relies on the decision of the
Hon’ble Apex Court in Amish Devgan v. Union
of India [(2021) 1 SCC 1], more particularly
paragraphs 70, 73, 102, and 103 thereof which
are reproduced hereunder for ease of
reference:
70. Manzar Sayeed Khan [Manzar Sayeed Khan v.
State of Maharashtra, (2007) 5 SCC 1 : (2007) 2
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SCC (Cri) 417] , taking note of the observations in
Bilal Ahmed Kaloo [Bilal Ahmed Kaloo v. State of
A.P., (1997) 7 SCC 431 : 1997 SCC (Cri) 1094] ,
records that common features of Sections 153-A
and 505(2) being promotion of feeling of enmity,
hatred or ill-will “between different” religious or
racial or linguistic or regional groups or castes or
communities, involvement of at least two groups
or communities is necessary. Further, merely
inciting the feeling of one community or
group without any reference to any other
community or group would not attract either
provision. Definition of “hate speech” as
expounded by Andrew F. Sellars prescribes that
hate speech should target a group or an individual
as they relate to a group.
73. On the aspect of content, Ramesh [Ramesh v.
Union of India, (1988) 1 SCC 668 : 1988 SCC (Cri)
266] states that the effect of the words must be
judged from the standard of reasonable, strong-
minded, firm and courageous men and not by
those who are weak and ones with vacillating
minds, nor of those who scent danger in every
hostile point of view. The test is, as they say in
English Law, — “the man on the top of a Clapham
omnibus”. Therefore, to ensure maximisation of
free speech and not create “free speaker's
burden”, the assessment should be from the
perspective of the top of the reasonable
member of the public, excluding and
disregarding sensitive, emotional and
atypical. It is almost akin or marginally lower
than the prudent man's test. The test of
reasonableness involves recognition of boundaries
within which reasonable responses will fall, and not
identification of a finite number of acceptable
reasonable responses. Further, this does not mean
exclusion of particular circumstances as frequently
different persons acting reasonably will respond in
different ways in the context and circumstances.
This means taking into account peculiarities
of the situation and occasion and whether the
group is likely to get offended. At the same
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time, a tolerant society is entitled to expect
tolerance as they are bound to extend to
others.
102. Clauses (a) and (b) to sub-section (1) of
Section 153-A of the Penal Code use the words
“promotes” and “likely” respectively. Similarly,
Section 295-A uses the word “attempts” and sub-
section (2) to Section 505 uses the words “create
or promote”. The word “likely” as explained
above, in our opinion, convey the meaning,
that the chance of the event occurring should
be real and not fanciful or remote [Tillmanns
Butcheries (Pty) Ltd. v. Australasian Meat Industry
Employees' Union [Tillmanns Butcheries (Pty) Ltd.
v. Australasian Meat Industry Employees' Union,
(1979) 27 ALR 380 (Aust)] ]. The standard of
“not improbable” is too weak and cannot be
applied as it would infringe upon and fall foul
of reasonable restriction and the test of
proportionality. This is the mandate flowing
from the catena of judgments of the
Constitution Benches which we have referred
to earlier and also the decision in Shreya
Singhal [Shreya Singhal v. Union of India,
(2015) 5 SCC 1 : (2015) 2 SCC (Cri) 449]
drawing distinction between advocacy,
discussion and incitement and that only the
latter i.e. the incitement, is punishable
whereas the former two would fall within the
domain of freedom to express and convey
one's thoughts and ideas.
103. “Incitement” is a restricted term under the
American Speech Law which has been adopted by
us and as per Brandenburg [Brandenburg v. Ohio,
1969 SCC OnLine US SC 144 : 23 L Ed 2d 430 :
395 US 444 (1969)] applies when the incitement is
imminent or almost inevitable. There has been
some criticism that the said test is too strong,
nevertheless, it conveys that the standard has to
be strict. Instigation must necessarily and
specifically be suggestive of the consequences.
Sufficient certainty to incite the consequences
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must be capable of being spelt out to be
incitement. Further, it is for the prosecution to
show and establish that the standard has
been breached by leading evidence, which
can be both oral and documentary.
“Promote” does not imply mere describing
and narrating a fact, or giving opinion
criticising the point of view or actions of
another person — it requires that the speaker
should actively incite the audience to cause
public disorder. This active incitement can be
gauged by the content of the speech, the
context and surrounding circumstances, and
the intent of the speaker. However, in case the
speaker does not actively incite the descent into
public disorder, and is merely pointing out why a
certain person or group is behaving in a particular
manner, what are their demands and their point of
view, or when the speaker interviews such person
or group, it would be a passive delivery of facts
and opinions which may not amount to promotion.
4.24. By relying on Amish Devgan’s case, his
submission is that an essential requirement for
attracting the offence of promoting enmity
between communities is the involvement of at
least two groups or communities. Mere
incitement of feelings against one community,
without reference to or promotion of hostility
between two or more communities, would not
by itself attract the penal provision.
4.25. He further submits that the effect of the alleged
words has to be assessed from the standpoint
of a reasonable, strong-minded, firm and
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courageous person, and not from the
perspective of persons who are unduly sensitive
or perceive danger in every contrary or hostile
point of view. The assessment must necessarily
take into account the context and surrounding
circumstances in which the words were spoken.
4.26. It is further submitted that the expression
“likely” requires a real and not fanciful or
remote possibility of the consequence
contemplated by the statute. The mere
possibility that the words may offend or may be
perceived adversely by some persons is
insufficient to satisfy the statutory threshold.
4.27. Further, as explained by the Hon’ble Supreme
Court, “promote” does not mean merely
describing, narrating or expressing an opinion
or criticism. There must be active incitement to
cause public disorder, which has to be assessed
from the content of the speech, its context, the
surrounding circumstances and the intention of
the speaker. In the absence of such active
incitement, the alleged speech would not
amount to “promotion” merely because it may
be objectionable or critical.
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30/10/2026, 17:09, Bengaluru)
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4.28. Applying the aforesaid principles to the present
case, he submits that the alleged statement,
even if taken at its face value, does not contain
any exhortation or incitement to one
community to act against another community,
nor does it call upon any person to cause public
disorder. The allegation that the statement was
capable of hurting the sentiments of another
community cannot, by itself, satisfy the
requirement of promotion or incitement
contemplated under Section 196 BNS.
4.29. Thus, applying the test laid down in Amish
Devgan , the alleged statement, read in its
proper context and from the standpoint of a
reasonable and strong-minded person, does not
disclose the essential ingredients of the offence
alleged.
4.30. He relies on the decision of the Hon’ble Apex
Court in Ramesh v. Union of India [(1988) 1
SCC 668], more particularly para 13 thereof,
which is reproduced hereunder for ease of
reference;
13. Vivian Bose, J. as he then was in the Nagpur
High Court in the case of Bhagwati Charan Shukla
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v. Provincial Government [AIR 1947 Nag 1 : 226 1C
590 : 47 Cri LJ 994 : ILR 1946 Nag 865] has
indicated the yardstick by which this question has
to be judged. There at page 18 of the report the
court observed that 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. This in our opinion, is the correct
approach in judging the effect of exhibition of a film
or of reading a book. It is the standard of ordinary
reasonable man or as they say in English law “the
man on the top of a Clapham omnibus”.
4.31. By relying on Ramesh’s case, his submission is
that even strongly worded statements would be
covered under Article 19 of the Constitution.
The impact must be assessed by reference to
the standards of a reasonable, strong-minded,
firm and courageous person, and not those of
persons with weak and vacillating minds.
4.32. His submits that the FIR, taken at face value,
does not satisfy the essential ingredients of an
offence under Section 299 of the BNS. Section
299 BNS is reproduced hereunder for ease of
reference:
Deliberate and malicious acts, intended to
outrage religious feelings of any class by
insulting its religion or religious beliefs.
299 .Whoever, with deliberate and malicious
intention of outraging the religious feelings of
Digitally Signed By:
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30/10/2026, 17:09, Bengaluru)
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any class of citizens of India, by words, either
spoken or written, or by signs or by visible
representations or through electronic means or
otherwise, insults or attempts to insult the
religion or the religious beliefs of that class, shall
be punished with imprisonment of either
description for a term which may extend to three
years, or with fine, or with both.
4.33. His submission is that for Section 299 to be
attracted, there must be a deliberate and
malicious intention of outraging the religious
feelings of a class of citizens by words, signs or
visible representations. There is required to be
a specific mens rea , including malice , on the
part of the person making any such statement.
He submits that intemperate, critical or
politically charged language would not, in the
absence of material indicating a conscious
design to insult or outrage a religion or religious
belief, constitute an offence under Section 299.
4.34. He relies on the decision of a Co-ordinate Bench
of this Court in Sri Keerthan Kumar & Anr v.
State of Karnataka [WP No.25591 of 2023
dated 13.09.2026], more particularly para 6
thereof, which is reproduced hereunder for ease
of reference;
“ ,
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Digitally Signed By:
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30/10/2026, 17:09, Bengaluru)
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Digitally Signed By:
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30/10/2026, 17:09, Bengaluru)
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ಕಡಬ ಾಾ ಅ.ಕP.: ಕಲಂ:
IPC ”
ಯಂ<ೆ ಪPಕರಣ Eಾಖ ;
ೊಂeೆನು.
The complaint is that on the night of 24-09-2023
some unknown persons entered the mosque and
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30/10/2026, 17:09, Bengaluru)
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shouted the slogan ‘Jai Sriram’ and said to have
threatened that they will not leave the community
and thereafter are said to have ran away from the
spot. The complaint also narrates that Hindus and
Muslims in the jurisdiction of Kadaba Police Station
are living in great harmony and these persons who
have shouted ‘Jai Sriram’ are creating a rift
between the communities. Therefore, the crime is
registered. It becomes germane to notice the
offences so laid against the Petitioners. The offence
punishable under Section 295A of the IPC reads as
follows:
” 295-A. Deliberate and malicious acts
intended to outrage religious feelings of any
class by insulting its religion or religious
beliefs .— Whoever, with deliberate and
malicious intention of outraging the religious
feelings of any class of citizens of India, by
words, either spoken or written, or by signs or
by visible representations or otherwise,
insults or attempts to insult the religion or the
religious beliefs of that class, shall be
punished with imprisonment of either
description for a term which may extend to
three years, or with fine, or with both. ”
Section 295A deals with deliberate and malicious
acts intended to outrage religious feelings of any
class by insulting its religion or religious beliefs. It
is ununderstandable as to how if someone
shouts ‘Jai Sriram’ it would outrage the
religious feeling of any class. When the
complainant himself states that Hindu –
Muslims are living in harmony in the area the
incident by no stretch of imagination can
result in antimony. Here it becomes apposite to
refer to the judgment of the Apex Court in the case
of MAHENDRA SINGH DHONI v. YERRAGUNTLA
SHYAMSUNDAR [ (2017) 7 SCC 760 ] wherein it is
held as follows:
“…. …. ….
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6. On a perusal of the aforesaid passages,
it is clear as crystal that Section 295-A does
not stipulate everything to be penalised
and any and every act would tantamount
to insult or attempt to insult the religion
or the religious beliefs of a class of
citizens. It penalises only those acts of
insults to or those varieties of attempts to
insult the religion or religious belief of a
class of citizens which are perpetrated
with the deliberate and malicious intention
of outraging the religious feelings of that
class of citizens. Insults to religion offered
unwittingly or carelessly or without any
deliberate or malicious intention to
outrage the religious feelings of that class
do not come within the section. The
Constitution Bench has further clarified
that the said provision only punishes the
aggravated form of insult to religion when
it is perpetrated with the deliberate and
malicious intention of outraging the
religious feelings of that class. Emphasis
has been laid on the calculated tendency
of the said aggravated form of insult and
also to disrupt the public order to invite
the penalty.
…………
9. To satisfy ourselves, we have
bestowed our anxious consideration and
scrutinised the allegations made in the
complaint petition and we have no
hesitation in holding that the allegations
remotely do not satisfy the essential
ingredients of the offence and, therefore,
applying the principle stated in State of
Haryana v. Bhajan Lal [State of Haryana v.
Bhajan Lal, 1992 Supp (1) SCC 335 : 1992
SCC (Cri) 426] , we quash the complaint
proceedings initiated against the
Petitioner.
……………
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12. In the case at hand, as the
complaint is quashed, needless to say, for
the reasons for which the complaint is
quashed shall squarely apply to the co-
accused, who is the Editor of the
magazine. Therefore, we apply the same
principle and quash the complaint even against
the co-accused. We may hasten to clarify that
we have passed the order of quashment
keeping in view the criminal miscellaneous
petition filed in this case for quashing and also
not to allow more space for abuse of the
process of the Court.”
The Apex Court holds that any and
every act will not become an offence
under Section 295A of the IPC. The acts
that have no effect on bringing out peace
or destruction of public order will not lead
to an offence under Section 295A of the
IPC.
4.35. By referring to Sri Keerthan Kumar’s case,
his submission is that Section 295-A does not
stipulate everything to be penalised. It
penalises only those acts or insults to, or to
those varieties or attempts to insult, the
religion or religious belief of a class of citizens
which are perpetrated with a deliberate and
malicious intention of outraging the religious
feelings of that class of citizens. He submits
that the complaint has been filed unjustifiably
and infringes on the Petitioner's fundamental
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right of free speech and Article 19A of the
Constitution.
4.36. In this regard, his submission, by relying on
Imran Pratapgadhi’s case, more particularly
paras 48-49 thereof, is that if the police or
executive fail to honour and protect the
fundamental rights and Article 19(1)(a) of the
Constitution of India, it is the duty of the Court
to step in and protect the fundamental rights.
The right to free speech of the Petitioner is
sought to be stifled by the filing of a false
complaint and in that regard he submits that
this Court ought to come to the rescue of the
Petitioner and quash the proceedings.
4.37. His submission by relying on Amish Devgan’s
case, more particularly paragraphs 70, 73, 102,
103 thereof, is that the effect of the words must
be judged from the standard of a reasonable,
strong-minded, firm and courageous man and
not those who are weak or ones with vacillating
minds. The word “likely” which has been used
in Section 295-A of IPC would have to convey
the meaning that the chance of the event
occurring should be real and not fanciful or
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remote. None of these tests, according to him,
have been satisfied.
4.38. He relies on the decision of the Hon’ble Apex
Court in State of A.P. v. Golconda Linga
Swamy [(2004) 6 SCC 522], more particularly
para 12 thereof, which is reproduced hereunder
for ease of reference;
12. So far as Criminal Appeals Nos. 1183, 1193-96
of 2003 and criminal appeals arising out of SLPs
(Crl.) Nos. 2191, 2632-33 and 3463 of 2003 are
concerned, we find that the FIR did not
disclose commission of an offence without
anything being added or subtracted from the
recitals therein. Though the FIR is not
intended to be an encyclopaedia of the
background scenario, yet even skeletal
features must disclose the commission of an
offence. The position is not so in these cases.
Therefore, the High Court's interference does
not suffer from any legal infirmity, though
the reasonings indicated by the High Court do
not have our approval.
4.39. By relying on Golconda Linga Swamy’s case,
his submission is that when FIR does not
disclose the commission of an offence, without
anything being added or subtracted from the
recitals, this Court is required to quash such
proceedings.
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4.40. He relies on the decision of the Hon’ble Apex
Court in Pradeep Kumar Kesarwani vs.
State of Uttar Pradesh and Another [2025
SCC Online SC 1947], more particularly para 20
thereof, which is reproduced hereinunder for
ease of reference:
20. The following steps should ordinarily
determine the veracity of a prayer for
quashing, raised by an accused by invoking
the power vested in the High Court under
Section 482 of the Cr.P.C.:—
(i) Step one, whether the material relied
upon by the accused is sound, reasonable,
and indubitable, i.e., the materials is of
sterling and impeccable quality?
(ii) Step two, whether the material relied
upon by the accused, would rule out the
assertions contained in the charges levelled
against the accused, i.e., the material is
sufficient to reject and overrule the factual
assertions contained in the complaint, i.e.,
the material is such, as would persuade a
reasonable person to dismiss and condemn
the factual basis of the accusations as false.
(iii) Step three, whether the material relied
upon by the accused, has not been refuted
by the prosecution/complainant; and/or the
material is such, that it cannot be justifiably
refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the
trial would result in an abuse of process of
the court, and would not serve the ends of
justice?
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If the answer to all the steps is in the
affirmative, judicial conscience of the High
Court should persuade it to quash such
criminal - proceedings, in exercise of power
vested in it under Section 482 of the Cr. P.C.
Such exercise of power, besides doing
justice to the accused, would save precious
court time, which would otherwise be
wasted in holding such a trial (as well as,
proceedings arising therefrom) specially
when, it is clear that the same would not
conclude in the conviction of the accused.
[(See: Rajiv Thapar v. Madan Lal Kapoor
(Criminal Appeal No. 174 of 2013)]
4.41. His submission by relying on Pradeep Kumar
Kesarwani ’s case is that if the material relied
upon by the accused is sound, reasonable and
indubitable and would rule out the assertions
contained in the charges levelled against the
accused, such material not having been refuted
by the prosecution and the continuance of the
criminal proceedings would be an abuse of the
process of Court, this Court is required to
intercede and quash the proceedings filed.
4.42. On the basis of all the above, his submission is
that a reading of the entire complaint does not
disclose any offence committed by the
Petitioner and this Court ought to quash the
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frivolous, vexatious proceedings which amount
to harassment of the Petitioner.
5. Sri.Ranjith Kumar.N, learned HCGP appearing for
Respondents No.1 and 2, would submit that:
5.1. The material circumstances leading to
registration of the criminal proceedings are not
in dispute. On 07.09.2025, an incident of
stone-pelting occurred during the Ganesh
Visarjana at Maddur Town. The incident was
followed by a protest on 08.09.2025 and a
complete bandh in the town on 09.09.2025. In
view of the prevailing communal tension and
the apprehension of further breach of peace,
substantial police deployment was made to
maintain law and order.
5.2. It is in the backdrop of the aforesaid highly
charged and sensitive situation that the
Petitioner is alleged to have made the
statement in question referring to members of
the Muslim community. The statement,
therefore, cannot be examined in isolation or
divorced from the prevailing circumstances.
When a community is already agitated and
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there is an apprehension of further
confrontation between two communities, a
statement capable of aggravating such
sentiments has to be assessed with reference to
its content, context and likely consequences.
5.3. The State’s case is that the Petitioner’s
statement was not a mere expression of an
abstract opinion. It contained words directed
towards a particular religious community and
was made at a time when communal tensions
had already resulted in violence, protests and a
town-wide bandh. The subsequent circulation of
the statement through social-media platforms
further enlarged its reach and exposed the
same to members of the concerned
communities. In such circumstances, the
statement had the potential to aggravate
existing hostility and to further disturb
communal harmony.
5.4. The requirement under Section 196 BNS is not
confined to an actual outbreak of violence. The
provision also takes within its ambit conduct
which promotes or attempts to promote
disharmony or feelings of enmity, hatred or ill-
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will between different communities and acts
which are prejudicial to the maintenance of
harmony and disturb or are likely to disturb
public tranquillity. The statutory expression
“likely” necessarily recognises that the law need
not await the actual occurrence of violence
before preventive criminal action can be taken.
5.5. He submits that the expression “likely” must be
assessed in the factual setting in which the
statement was made. In a situation where
communal violence had already occurred,
followed by protests and a town-wide bandh,
the possibility that a communally charged
statement would further aggravate the situation
cannot be characterised as fanciful or remote.
Whether the statement, in its context and
having regard to its dissemination, was capable
of producing such an effect is a matter
requiring investigation and cannot be
conclusively determined in proceedings for
quashing at the threshold.
5.6. As regards the Petitioner’s reliance upon the
right to freedom of speech under Article
19(1)(a), the State does not dispute that
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freedom of speech is a constitutionally
protected right. However, the right is expressly
subject to the reasonable restrictions
contemplated under Article 19(2), including
restrictions in the interests of public order and
in relation to the matters specifically recognised
therein. The protection of speech therefore
does not extend to conduct which, on the facts
alleged, falls within a validly enacted penal
restriction.
5.7. Sections 196, 298 and 299 BNS constitute
statutory restrictions operating within the
constitutional framework. The question at this
stage is not whether the Petitioner will
ultimately be found guilty, but whether the
allegations and material collected disclose the
commission of cognizable offences warranting
investigation. The existence of a constitutional
right to free speech cannot, by itself, furnish
immunity from investigation where the
allegations prima facie attract the ingredients of
the penal provisions invoked.
5.8. The Petitioner’s contention regarding
preliminary inquiry under Section 173(3) BNSS
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is also misconceived. The alleged statement is
not an occurrence incapable of verification. The
statement is available in recorded and
electronically disseminated form on social-
media platforms. Its existence and authorship
are therefore capable of verification from the
available material. The question requiring
investigation is not merely whether the words
were spoken, but the circumstances in which
they were spoken, the context, the manner of
dissemination, the persons to whom they were
directed, their effect and the likelihood of their
aggravating the existing communal situation.
5.9. The availability of the recorded statement,
therefore, does not render the investigation
unnecessary. On the contrary, the electronic
material provides the starting point for
investigating the surrounding circumstances
and the consequences flowing from the
statement. Whether the material ultimately
establishes the ingredients of the offences is a
matter to be determined upon investigation and
cannot be prejudged at the threshold.
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5.10. The reliance placed by the Petitioner upon
decisions concerning the objective assessment
of speech does not alter the position. The
principles laid down therein require the Court to
consider the content, context and surrounding
circumstances of the speech. Those very
circumstances, in the present case, include a
recent incident of stone-pelting, communal
tension, a protest, a complete town bandh and
heightened police deployment. These
circumstances cannot be disregarded while
assessing the potential impact of the alleged
statement.
5.11. He accordingly submits that the alleged
statement cannot be isolated from the
circumstances in which it was made and
subsequently disseminated. The prosecution is
entitled to investigate whether the statement,
viewed in its proper context, had the tendency
to promote or aggravate feelings of enmity or
ill-will between communities or was likely to
disturb public tranquillity.
5.12. At the stage of considering a petition for
quashing, this Hon’ble Court is not required to
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conduct a mini-trial or undertake a detailed
appreciation of the evidence. Where the
allegations disclose the essential ingredients of
the offences and the surrounding circumstances
give rise to a prima facie case, the investigation
ought not to be interdicted merely because the
accused has a possible defence or because the
ultimate effect of the statement is capable of
more than one interpretation.
5.13. The State therefore submits that the
allegations, read with the surrounding
circumstances and the material relating to the
dissemination of the statement, disclose a
prima facie case requiring investigation. The
question whether the Petitioner’s statement
ultimately amounts to promotion of communal
enmity, disturbance of public tranquillity, or an
offence under Sections 196, 298 and 299 BNS
is a matter to be determined on the basis of the
evidence collected during investigation and, if
necessary, at trial.
5.14. Consequently, the proceedings cannot be
characterised as an abuse of process at this
stage. The allegations are not so inherently
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improbable or legally incapable of constituting
the offences alleged as to warrant exercise of
the extraordinary jurisdiction of this Hon’ble
Court for quashing the FIR. The petition is
therefore liable to be dismissed and the
investigating agency ought to be permitted to
complete the investigation in accordance with
law.
6. Heard Sri.Aiyappa.K.G., learned counsel for the
Petitioner and Sri.Ranjith Kumar.N., learned HCGP for
Respondents No.1 and 2. Perused papers.
7. The points that would arise for determination are:
(i) Whether the allegations contained in
Crime No.201/2025, taken at their face
value and without adding or subtracting
anything from the complaint, disclose the
essential ingredients of the offence
punishable under Section 196(1)(a) of the
Bharatiya Nyaya Sanhita, 2023, so as to
warrant continuation of the criminal
proceedings against the Petitioner?
(ii) Whether the allegations in the complaint,
with regard to the alleged utterances of
the Petitioner and the circumstances in
which they were made, disclose the
essential ingredients of the offence alleged
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under Section 299 of the Bharatiya Nyaya
Sanhita, 2023?
(iii) Whether the registration of the FIR
without conducting a preliminary enquiry
under Section 173(3) of the Bharatiya
Nagarik Suraksha Sanhita, 2023, in the
facts and circumstances of the present
case, vitiates the registration of the crime?
(iv) Whether, having regard to the protection
guaranteed under Article 19(1)(a) of the
Constitution of India, and the principles
governing restrictions upon freedom of
speech and expression, the alleged
statement, considered in its entirety and in
its proper context, attracts the penal
provisions invoked against the Petitioner?
(v) Whether the Petitioner has made out a
case for exercise of the inherent
jurisdiction of this Court under Section 528
of the BNSS for quashing Crime
No.201/2025 and all consequential
proceedings pending before the Court of
the II Additional JMFC, Maddur?
(vi) What order?
8. This Court answers the above points as follows:
9. Answer to Point No (i): Whether the allegations
contained in Crime No.201/2025, taken at their
face value and without adding or subtracting
anything from the complaint, disclose the
essential ingredients of the offence punishable
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under Section 196(1)(a) of the Bharatiya Nyaya
Sanhita, 2023, so as to warrant continuation of
the criminal proceedings against the Petitioner?
9.1. Sri.Aiyappa.K.G, learned counsel for the
Petitioner, submitted that even if the allegations
in the complaint are accepted in their entirety,
they do not disclose the commission of an
offence under Section 196(1)(a) of the
Bharatiya Nyaya Sanhita, 2023 (BNS).
9.2. Learned counsel contended that an
objectionable, insulting or offensive statement
does not, by itself, constitute an offence under
Section 196 BNS. The provision requires the
words to promote, or attempt to promote,
disharmony or feelings of enmity, hatred or ill-
will between different groups. An intention to
hurt the religious sentiments of a community is
not the same as an intention to promote enmity
between communities. According to him, the
complaint alleges no more than an
objectionable remark referring to Muslims,
which was subsequently recorded and
circulated on social media. The essential
ingredients of the offence are therefore absent.
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9.3. In support of this submission, learned counsel
relied on Imran Pratapgadhi v. State of
Gujarat , particularly paragraphs 15, 28–31,
33–37, 42, 48-49 and 53. He submitted that
the effect of spoken words must be assessed
from the standpoint of reasonable, strong-
minded and firm persons, and not by reference
to the reaction of persons who are unduly
sensitive. He further argued that the alleged
statement contains no call for violence or
hostility against any community.
9.4. Learned counsel also pointed out that the
complaint attributes the recording and
circulation of the video to “some persons”.
According to him, the actions of third parties
cannot, by themselves, establish that the
Petitioner promoted or attempted to promote
enmity between communities.
9.5. As regards the surrounding events, learned
counsel acknowledged that the complaint refers
to the stone-pelting incident of 07.09.2025, the
procession or protest of 08.09.2025, the bandh
of 09.09.2025 and the proposed immersion on
10.09.2025. He submitted, however, that these
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events are referred to as the background for
police deployment and are not linked to the
alleged statement. They do not establish that
the statement caused, or was likely to cause, a
disturbance of public tranquillity.
9.6. Learned counsel relied on Sri Basanagouda R.
Patil v. State of Karnataka , particularly
paragraph 10, which refers to Patricia
Mukhim v. State of Meghalaya (Paragraphs
8-15). He submitted that freedom of speech
must be protected and that describing an
event, expressing an opinion or criticising
another person’s actions does not, without
more, amount to promoting enmity. The
expression “promote”, he argued, requires
active incitement, assessed in the light of the
words used, the surrounding circumstances and
the speaker’s intention.
9.7. Reliance was also placed on Amish Devgan v.
Union of India , particularly paragraphs 70,
73, 102 and 103. Learned counsel submitted
that the offence requires the involvement of at
least two groups; that the effect of the words
must be judged objectively and in context; that
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the likelihood of a disturbance must be real
rather than remote or fanciful; and that
promotion requires active incitement, assessed
in the light of the content, context and intention
of the speaker.
9.8. Learned counsel further relied on Ramesh v.
Union of India , particularly paragraph 13,
regarding the standard for assessing the effect
of words, and State of A.P. v. Golconda
Linga Swamy , particularly paragraph 12, for
the principle that where an FIR does not
disclose an offence even when its allegations
are taken at face value, the proceedings may
be quashed.
9.9. Sri Ranjith Kumar N., learned High Court
Government Pleader, opposed the Petition. He
submitted that the alleged statement must not
be examined in isolation from the
circumstances in which the complaint was
registered. The relevant background includes
the stone-pelting incident during Ganesh
Visarjana on 07.09.2025, the protest on
08.09.2025, the bandh on 09.09.2025 and the
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deployment of a large police force owing to
communal tension.
9.10. Learned HCGP contended that the statement
referred to a particular religious community and
was circulated on social media at a time when
tensions already existed. Its circulation could
have widened its reach and aggravated hostility
between communities. He submitted that the
effect of the statement must therefore be
assessed in the light of the prevailing
circumstances, rather than by considering its
words alone.
9.11. He further argued that Section 196 BNS does
not require actual violence or a completed
disturbance of public tranquillity in every case.
The provision also covers an attempt to
promote enmity and acts that are likely to
disturb public tranquillity. In his submission, the
possibility that a communally charged
statement might aggravate an already tense
situation was not remote or fanciful. Whether
the statement had that effect required
investigation and could not be decided at the
threshold.
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9.12. The question is whether the allegations in the
complaint, accepted as they stand, disclose the
essential ingredients of Section 196(1)(a) BNS.
At this stage, the Court is not required to
decide whether the Petitioner made the
statement, whether the complaint is false or
whether the Petitioner is ultimately guilty. Nor
is the Court called upon to approve or
disapprove the language used. The enquiry is
confined to whether the facts alleged constitute
the offence invoked.
9.13. ALLEGATIONS IN THE COMPLAINT
9.14. The complaint was lodged on 11.09.2025 by
the Police Inspector, Respondent No.2. It
alleges that the Petitioner deliberately made
statements intended to hurt the religious
feelings of another community, that some
persons recorded the statement and circulated
it on social media, and that the statement
encouraged ill-will between communities.
9.15. The complaint quotes the following words,
translated into English for the purpose of this
discussion:
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“All I ask is this, about Siddaramaiah. I will tell
him one thing. If you support Muslims, sir, why do
you come and stand for election? Were you born
to Muslims, then?”
9.16. The complaint treats the word “ Sabru ” as a
colloquial reference to Muslims. This Court has
considered the Kannada original and proceeds
on the basis of the meaning attributed to the
expression in the complaint.
9.17. The complaint does not specify when or where
the statement was made, to whom it was
addressed, or the occasion on which it was
made. Although it refers to the events between
07.09.2025 and 10.09.2025, those events are
mentioned as the background to police
deployment.
9.18. The complaint also refers to “numerous
provocative statements on various TV
channels”. However, it does not reproduce those
statements or identify their relevant contents.
Since the present Point concerns the
ingredients of the offence on the allegations
actually pleaded, the Court proceeds on the
basis of the words quoted in the complaint. A
general reference to other statements made by
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others, without setting out their contents,
cannot supply the missing ingredients of the
particular allegation under consideration.
9.19. APPLICABLE LEGAL TEST
9.20. In State of A.P. v. Golconda Linga Swamy ,
paragraph 12, the Hon’ble Supreme Court
explained the approach to be adopted while
examining whether an FIR discloses an offence.
The relevant passage reads:
“We find that the FIR did not disclose commission
of an offence without anything being added or
subtracted from the recitals therein. Though the
FIR is not intended to be an encyclopaedia of the
background scenario, yet even skeletal features
must disclose the commission of an offence.”
9.21. The principle is that an FIR need not contain
every detail of the case. It must, however,
disclose the basic facts that constitute the
alleged offence. The Court cannot add facts that
are absent from the complaint to make out an
offence, nor can it disregard allegations that are
actually present.
9.22. The learned HCGP is correct that the Court
should not conduct a mini-trial or assess the
reliability of evidence at this stage. The Court
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has therefore proceeded on the assumption
that the allegations in the complaint are true
and has taken into account the surrounding
events relied upon by Learned HCGP. The issue
is whether those allegations, as pleaded, satisfy
the requirements of the law.
9.23. INGREDIENTS OF SECTION 196 BNS
9.24. Relevant portion of Section 196 BNS is
reproduced as follows:
(a) Whoever, by words, either spoken or
written, or by signs or by visible representations
or through electronic communication or
otherwise, promotes or attempts to promote,
on grounds of religion, race, place of birth,
residence, language, caste or community or any
other ground whatsoever, disharmony or
feelings of enmity, hatred or ill-will between
different religious, racial, language or regional
groups or castes or communities; or
(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 …
9.25. Clause (a) concerns the promotion or
attempted promotion of disharmony or feelings
of enmity, hatred or ill-will between different
groups. The use of words, signs or electronic
communication is not sufficient by itself. The
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communication must have the character and
effect required by the provision, and the enmity
or ill-will must be between different groups.
9.26. Clause (b), in turn, concerns an act prejudicial
to the maintenance of harmony between groups
that disturbs or is likely to disturb public
tranquillity. Although the FIR is registered under
Section 196(1)(a), both sides have addressed
the question of public tranquillity. Clause (b) is
therefore considered to that limited extent.
9.27. WHETHER THE STATEMENT PROMOTES OR
ATTEMPTS TO PROMOTE ENMITY
9.28. In Amish Devgan v. Union of India ,
paragraph 103, the Hon’ble Supreme Court
explained the meaning of “promote” in the
context of offences concerning enmity between
groups:
“‘Promote’ does not imply mere describing and
narrating a fact, or giving opinion criticising the
point of view or actions of another person — it
requires that the speaker should actively incite
the audience to cause public disorder. This active
incitement can be gauged by the content of the
speech, the context and surrounding
circumstances, and the intent of the speaker.”
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9.29. Thus, the nature of the words, their context
and the speaker’s intention must be considered
together. Mere criticism or an offensive
expression does not automatically amount to
the promotion of enmity. The question is
whether the words, read in their proper
context, promote or attempt to promote the
kind of disharmony or ill-will that the provision
prohibits.
9.30. The words quoted in the complaint are directed
at then Chief Minister Siddaramaiah and
questions his decision to contest an election
while supporting Muslims. The final sentence is
an insulting taunt that uses a reference to
Muslims as a term of abuse. The expression
may reasonably be regarded as crude, offensive
and hurtful. That, however, does not by itself
establish that the speaker was inciting the
audience to develop hatred or hostility towards
Muslims or another community.
9.31. The quoted words do not call upon the audience
to hate Muslims, avoid them, act against them
or engage in violence. Nor do they call upon
one community to act against another. On the
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words pleaded, the immediate target is a
political figure and his alleged political position.
The complaint does not set out any further
words or conduct that would establish the
required promotion or attempted promotion of
enmity between groups.
9.32. Learned HCGP submit that the words were
directed towards a religious community. A
reference to a community in an insulting
statement may cause offence to members of
that community. However, the statutory
question is not merely whether the statement is
offensive or hurts religious sentiments. It is
whether the statement promotes or attempts to
promote enmity, hatred or ill-will between
different groups. These are distinct questions,
and the former does not, without more,
establish the latter.
9.33. REQUIREMENT OF DIFFERENT GROUPS
9.34. In Amish Devgan , paragraph 70, the Hon’ble
Supreme Court observed:
“Further, merely inciting the feeling of one
community or group without any reference to
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any other community or group would not attract
either provision.”
9.35. The decision in Patricia Mukhim v. State of
Meghalaya [(2021)15 SCC 35] more
particularly Paragraphs 8-15, as quoted in
paragraph 10 of Sri Basanagouda R. Patil v.
State of Karnataka , similarly emphasises that
at least two groups or communities must be
involved for the offence to arise.
9.36. The complaint alleges that the Petitioner hurt
the feelings of another community, but it does
not identify a second group against which
hostility was promoted. The quoted words refer
to Muslims and are addressed to a political
figure. They do not call upon one group to act
against another or otherwise disclose the
promotion of enmity between different groups.
9.37. The absence of an express reference to a
second group may not, in every case, be
conclusive, since the meaning of a statement
must be assessed in context. In the present
case, however, neither the quoted words nor
the pleaded circumstances supply the missing
link. This is an additional reason why the
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essential ingredient of enmity between different
groups is not disclosed.
9.38. INTENTION AND THE STATEMENT READ AS
A WHOLE
9.39. In Sri Basanagouda R. Patil , paragraph 10,
the Court reproduced observations from
Patricia Mukhim , Paragraphs 8-15, concerning
the need to establish the intention to promote
enmity. The relevant principles are that
intention must be assessed from the language
used and the circumstances in which the
statement was made, that the material must be
read as a whole, and that isolated passages
should not be connected through strained
inferences to establish the offence.
9.40. In Imran Pratapgadhi , paragraph 42, the
Hon’ble Supreme Court observed that Section
153-A of the Indian Penal Code, which was
considered in several of the cited decisions, is
in pari materia with Section 196 BNS. The
principles laid down in those decisions are
therefore relevant to the present provision.
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9.41. When the words quoted in the complaint are
read as a whole, they amount to a taunt
directed at a person said to support Muslims.
They do not, on their face, call upon listeners to
develop enmity towards Muslims or any other
group. The complaint asserts that the Petitioner
acted deliberately to hurt the religious feelings
of another community. That assertion, without
supporting facts showing an intention to
promote enmity between groups, is not
sufficient to establish the required ingredient.
9.42. THE STANDARD FOR ASSESSING THE
EFFECT OF THE WORDS
9.43. In Ramesh v. Union of India , paragraph 13,
the Hon’ble Supreme Court held that the effect
of words must be judged by the standards of
reasonable, strong-minded, firm and
courageous persons, rather than by the
reactions of persons who are unduly sensitive
or perceive danger in every opposing view.
9.44. The same approach was applied to Section 196
BNS in Imran Pratapgadhi , paragraph 42. In
Amish Devgan , paragraph 73, the Hon’ble
Supreme Court further emphasised that the
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assessment must take account of the situation
and occasion, while excluding reactions that are
merely sensitive, emotional or atypical.
9.45. Applying that standard, a reasonable and
strong-minded person may regard the alleged
words as rude, insulting and offensive. The use
of a community’s name as an insult is
objectionable. But the objective question
remains whether the words are likely to
promote enmity between groups. Read in their
ordinary sense, the words taunt a political
figure for supporting Muslims; they do not call
upon the audience to hate Muslims or to act
against another community.
9.46. The conclusion is not based on the view that
the words are harmless or acceptable. It is
based on the distinction between an offensive
political taunt and speech that promotes or
attempts to promote enmity between different
groups within the meaning of Section 196(1)(a)
BNS.
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9.47. EFFECT OF THE SURROUNDING
CIRCUMSTANCES
9.48. Learned HCGP’s principal submission is that the
statement must be viewed against the
background of communal tension. The Court
has considered this argument. The stone-
pelting incident of 07.09.2025, the protest or
procession of 08.09.2025, the bandh of
09.09.2025 and the proposed immersion of
10.09.2025 form part of the background
described in the complaint. The Petitioner’s
counsel also acknowledged those events. This
Court therefore does not disregard them.
9.49. Context is relevant when assessing the
meaning and likely effect of a statement.
However, context cannot replace the essential
ingredients of the offence. In the present case,
four matters are material.
9.50. First, the complaint does not state when or
where the Petitioner made the statement, or
that it was made in response to the events
referred to above. The connection between the
statement and those events is advanced by
Learned HCGP in argument, but is not
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established by any specific allegation in the
complaint.
9.51. Second, the quoted words do not refer to the
stone-pelting, the procession, the bandh, the
proposed immersion or the police. Their subject
is the political position of a person who contests
elections. The complaint does not explain how,
in the circumstances alleged, those words were
intended to incite hostility between
communities.
9.52. Third, the complaint does not allege any
reaction to the statement or its circulation, any
subsequent disturbance attributable to it, or
any other specific circumstance showing that it
aggravated the existing tension. The absence of
such an allegation does not mean that an
offence can arise only after actual violence. It
does, however, matter when the State relies on
the likelihood of a disturbance as the basis for
the offence.
9.53. Fourth, Amish Devgan , paragraph 102,
explains that the word “likely” requires a real
chance of the event occurring, rather than a
fanciful or remote possibility. The decision also
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cautions that a mere standard of “not
improbable” is too weak. Learned HCGP submit
that the statement had the potential to
aggravate hostility and was capable of hurting
communal sentiments. Those assertions,
without a factual link between the words and a
real likelihood of disturbance, do not satisfy the
standard explained by the Hon’ble Supreme
Court.
9.54. This Court accepts Learned HCGP’s submission
that the law need not wait for violence to occur.
Section 196(1)(a) expressly covers an attempt
to promote enmity. But the absence of a
requirement of completed violence does not
dispense with the need to show promotion or
attempted promotion of enmity. The
requirement of active incitement, as explained
in Amish Devgan (Paragraph 102), remains
relevant.
9.55. WHETHER CLAUSE (B) OF SECTION 196 IS
ATTRACTED
9.56. Clause (b) of Section 196(1) BNS concerns an
act prejudicial to the maintenance of harmony
between different groups that disturbs or is
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likely to disturb public tranquillity. The
complaint does not allege that public tranquillity
was disturbed following the statement or the
circulation of the video.
9.57. As regards likelihood, the same deficiencies
discussed above remain. The complaint does
not connect the statement to the events of
07.09.2025 to 10.09.2025, does not identify
any reaction to the statement and does not set
out facts showing a real likelihood that the
statement would disturb public tranquillity. The
general assertion that the statement was
capable of aggravating communal sentiments
does not, without more, meet the test
explained in Amish Devgan (Paragraph 102).
9.58. Further, the complaint does not disclose how
the quoted words constituted an act prejudicial
to harmony between different groups. For the
reasons already stated, the words, taken at
face value, do not disclose the necessary link
between the alleged insult and the promotion of
enmity between communities. Clause (b)
therefore does not cure the deficiencies in the
allegations. This finding is confined to the
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allegations and the limited argument addressed
under this Point.
9.59. CIRCULATION OF THE VIDEO AND OTHER
ALLEGED STATEMENTS
9.60. The Petitioner contends that the video was
recorded and circulated by “some persons”. The
record also describes the Petitioner as an
influencer whose videos were published online.
This Court need not decide who recorded or
uploaded the particular video, since that is a
matter of evidence.
9.61. Even if the Petitioner herself circulated the
video, that circumstance would establish the
mode and reach of the communication; it would
not, by itself, establish that the words promoted
or attempted to promote enmity between
groups. The content of the communication must
still satisfy the statutory requirements.
9.62. The complaint’s general reference to other
provocative statements on television cannot
alter this conclusion because their contents are
not set out in the complaint under
consideration. The Court makes no finding
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about those other statements or the truth of
the allegations concerning them.
9.63. The Petitioner’s assertions that she is innocent,
that the complaint is false and that she was
merely criticising the police are also not decided
under this Point. The quoted words do not refer
to the police, and the Court has proceeded on
the assumption that the allegations in the
complaint are true. The conclusion is that, even
on that assumption, the essential ingredients of
Section 196(1)(a) BNS are not disclosed.
9.64. CONCLUSION ON POINT (I)
9.65. The principles in Golconda Linga Swamy
(Paragraph 12), require the Court to examine
the complaint as it stands, without adding or
subtracting facts. Section 196(1)(a) BNS
requires the promotion or attempted promotion
of disharmony or feelings of enmity, hatred or
ill-will between different groups. The decisions
in Amish Devgan (Paragraphs 70, 73, 102 and
103), Ramesh (Paragraph 13), Imran
Pratapgadhi (Paragraphs 15, 31, 42 and 53.7)
and Patricia Mukhim (Paragraph 8-15), as
referred to in Sri Basanagouda R. Patil
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(Paragraph 10), guide the Court in assessing
the words, the need for different groups, the
speaker’s intention, the surrounding
circumstances and the likelihood of the alleged
effect.
9.66. Applying those principles, the complaint does
not disclose active incitement to promote
enmity between communities, facts from which
the requisite intention can be inferred, or a
sufficient basis to conclude that the words were
directed towards promoting enmity between
different groups. The surrounding events do not
supply the missing ingredients because the
complaint does not link the statement to those
events. Nor does it plead facts showing a real
likelihood of disturbance of public tranquillity.
9.67. This conclusion does not endorse the language
attributed to the Petitioner. The words may be
insulting and objectionable. The finding is
narrower: the allegations, as pleaded, do not
disclose the essential ingredients of the offence
under Section 196(1)(a) BNS. The Court
therefore finds that continuation of the
proceedings cannot be justified under that
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provision on the basis of these allegations
alone.
9.68. In the above circumstances, this Court answers
Point No. (i) in the negative. The allegations in
Crime No.201/2025, taken at their face value
and without adding or subtracting anything
from the complaint, do not disclose the
essential ingredients of an offence punishable
under Section 196(1)(a) of the Bharatiya Nyaya
Sanhita, 2023. Accordingly, the criminal
proceedings cannot be sustained under that
provision on the basis of the allegations
considered under this Point.
10. Answer to Point No (ii): Whether the
allegations in the complaint, with regard to the
alleged utterances of the Petitioner and the
circumstances in which they were made,
disclose the essential ingredients of the offence
alleged under Section 299 of the Bharatiya
Nyaya Sanhita, 2023?
10.1. Sri.Aiyappa.K.G., learned counsel for the
Petitioner, submitted that the allegations in the
complaint, even if accepted at face value, do
not disclose an offence under Section 299 of
the Bharatiya Nyaya Sanhita, 2023 (BNS). He
contended that the provision applies only where
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a person acts with the deliberate and malicious
intention of outraging the religious feelings of a
class of citizens by insulting, or attempting to
insult, its religion or religious beliefs.
10.2. Learned counsel argued that intemperate,
critical or politically charged language does not,
by itself, constitute an offence under Section
299 BNS. The complaint must contain material
showing that the words were used with the
specific intention required by the provision. A
statement being offensive or capable of hurting
someone’s feelings is not sufficient.
10.3. In support of this submission, learned counsel
relied on Sri Keerthan Kumar & Anr. v.
State of Karnataka , particularly paragraph 6,
which discusses Section 295-A of the Indian
Penal Code and refers to Mahendra Singh
Dhoni v. Yerraguntla Shyamsundar [(2017)
7 SCC 760], particularly paragraph 6. He
submitted that Section 295-A IPC, which deals
with the same subject, penalises only insults
committed with a deliberate and malicious
intention to outrage the religious feelings of a
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class of citizens. According to him, the
allegations do not satisfy this test.
10.4. Learned counsel also relied on Amish Devgan
v. Union of India (Paragraphs 70, 73, 102,
and 103) and State of A.P. v. Golconda
Linga Swamy (Paragraph 12). The
submissions based on Amish Devgan
concerning the expression “likely” have been
considered under Point (i). Learned counsel
ultimately submitted that the complaint does
not disclose the essential ingredients of the
alleged offence and that the prosecution cannot
be sustained on the allegations made.
10.5. Sri Ranjith Kumar N, learned High Court
Government Pleader, contended that the words
were directed towards a particular religious
community. He also submitted that, at this
stage, the Court need only examine whether
the allegations disclose a cognizable offence
warranting investigation. According to him, the
effect of the statement and the question
whether an offence has been committed should
be examined during investigation and trial. He
further relied on the surrounding
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circumstances, including the tension and
disturbances referred to in the complaint.
10.6. THE SCOPE OF THIS POINT
10.7. The question is whether the allegations
concerning the Petitioner’s words, read in the
context in which they were allegedly spoken,
disclose the essential ingredients of an offence
under Section 299 BNS. The alleged words and
the relevant background are already set out
above. They need not be repeated here.
10.8. THE APPLICABLE PROVISION
10.9. Section 299 BNS is titled “Deliberate and
malicious acts, intended to outrage religious
feelings of any class by insulting its religion or
religious beliefs”. It provides:
“Whoever, with deliberate and malicious
intention of outraging the religious feelings of
any class of citizens of India, by words, either
spoken or written, or by signs or by visible
representations or through electronic means or
otherwise, insults or attempts to insult the
religion or the religious beliefs of that class, shall
be punished with imprisonment of either
description for a term which may extend to three
years, or with fine, or with both.”
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10.10. Section 299 BNS applies when a person uses
words, signs, representations, electronic means
or other means to insult, or attempt to insult,
the religion or religious beliefs of a class of
citizens, with the deliberate and malicious
intention of outraging that class’s religious
feelings.
10.11. The essential requirements are therefore:
10.11.1. there must be an insult or an attempt to
insult;
10.11.2. the insult must be directed at the
religion or religious beliefs of a class of
citizens;
10.11.3. the conduct must be through one or
more of the means specified in the
provision; and
10.11.4. the person must act with a deliberate
and malicious intention to outrage the
religious feelings of that class.
10.12. These requirements must be considered
together. The mere use of offensive language,
or the fact that a statement hurts religious
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sentiments, does not by itself establish the
offence.
10.13. SECTION 295-A IPC AND THE CITED
DECISIONS
10.14. Section 295-A of the Indian Penal Code dealt
with the same subject before the enactment of
the BNS. It reads:
“Whoever, with deliberate and malicious
intention of outraging the religious feelings of
any class of citizens of India, by words, either
spoken or written, or by signs or by visible
representations or otherwise, insults or attempts
to insult the religion or the religious beliefs of
that class, shall be punished with imprisonment
of either description for a term which may extend
to three years, or with fine, or with both.”
10.15. The wording of Section 299 BNS is materially
the same as that of Section 295-A IPC, with the
express addition of the words “or through
electronic means”. Both provisions require an
insult to religion or religious beliefs and a
deliberate and malicious intention to outrage
the religious feelings of a class of citizens. The
principles laid down by the Hon’ble Supreme
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Court on Section 295-A IPC are therefore
relevant to the interpretation of Section 299
BNS.
10.16. In Keerthan Kumar (Paragraph 6), the Co-
ordinate Bench of this Court considered a
complaint alleging that certain persons had
entered a mosque compound at night, shouted
“Jai Sriram” and threatened the community.
The complaint invoked Section 295-A IPC. As
recorded in the extract relied upon, the Bench
referred to Mahendra Singh Dhoni
(Paragraphs 6, 9 and 12) and questioned
whether the alleged conduct, in the
circumstances stated in that complaint, could
amount to an outrage of religious feelings,
particularly when the complaint itself referred
to harmony between the communities.
10.17. In Mahendra Singh Dhoni (Paragraphs 6, 9,
and 12), the Hon’ble Supreme Court explained
that Section 295-A IPC does not punish every
act that may be regarded as an insult to
religion or religious beliefs. It applies to the
aggravated form of insult committed with a
deliberate and malicious intention to outrage
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the religious feelings of a class of citizens. An
insult offered carelessly, unwittingly or without
that intention does not fall within the provision.
10.18. The principle is that the provision requires more
than an offensive statement or a hurt feeling.
The nature of the alleged insult and the
intention with which it was made must satisfy
the statutory requirements.
10.19. This Court applies that principle to Section 299
BNS. It does not treat Keerthan Kumar as
conclusive merely because that decision also
concerned a complaint under Section 295-A
IPC. The facts of that case, including the
alleged slogan and the circumstances recorded
in the complaint, differ from those in the
present case. The decision is relevant for the
legal principle it discusses, while its factual
context is distinguishable.
10.20. The Petitioner also relied on Golconda Linga
Swamy (Paragraph 12). The relevant principle,
considered under Point (i), is that the Court
must examine the allegations and the material
relied upon rather than supply missing facts or
assume that the necessary ingredients exist.
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That principle is relevant here as well. The
complaint must disclose facts which, if
accepted, bring the alleged conduct within
Section 299 BNS.
10.21. APPLICATION OF SECTION 299 BNS TO
THE ALLEGATIONS
10.22. The first question is whether the alleged words
insult, or attempt to insult, the religion or
religious beliefs of a class of citizens.
10.23. The words, as translated above at paragraph
9.15, refer to Muslims as a community and use
a colloquial term understood to mean “Muslim”
as part of a taunt directed at a person because
of his support for Muslims. The statement may
reasonably be regarded as offensive or
insulting. However, Section 299 BNS does not
punish every insult directed at a person or a
community. The insult must be directed at the
religion or religious beliefs of that class.
10.24. The alleged words do not refer to Islam’s
religious beliefs, practices, sacred texts or other
religious matters. On the allegations as
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recorded, they criticise or mock a person for
supporting Muslims and use a reference to that
community to do so. The complaint does not
identify any part of the statement that insults
Islam or any religious belief.
10.25. Learned HCGP submitted that the words were
directed towards a particular religious
community. For the purpose of this Point, that
submission may be accepted. But identifying
the community at which a statement is directed
does not, by itself, establish that the statement
insults the religion or religious beliefs of that
community. Those are distinct questions, and
the statutory requirement concerns the latter.
10.26. The complaint’s assertion that the words were
intended to hurt religious feelings describes the
complainant’s view of their effect. It does not
replace the need to identify the alleged insult to
religion or religious beliefs. On the words
quoted in the complaint, that essential element
is not disclosed.
10.27. The second question is whether the complaint
discloses a deliberate and malicious intention to
outrage the religious feelings of the community.
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10.28. The complaint characterises the statement as
deliberate and intended to hurt the religious
feelings of another community. That
characterisation must be assessed against the
words actually alleged and the circumstances
stated in the complaint.
10.29. As discussed above, the apparent target of the
statement is a person’s political position,
namely, his support for Muslims. The reference
to the community is used as a taunt. The
complaint does not identify additional words or
conduct showing that the Petitioner intended to
insult Islam or religious beliefs, or to outrage
the religious feelings of Muslims as a class.
10.30. Under the principle stated in Mahendra Singh
Dhoni , as discussed in Keerthan Kumar , the
intention required by the provision cannot be
inferred merely from the fact that the words are
offensive. The allegations must disclose the
deliberate and malicious intention specified by
the statute. On the facts pleaded, that
requirement is not met.
10.31. The third matter is the surrounding
circumstances. Learned HCGP rely on the
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stone-pelting, protests, bandh and tension
referred to in the complaint. These
circumstances have been considered above,
including the absence of clear particulars in the
complaint about when and where the alleged
words were spoken. That discussion is relevant
here and need not be repeated.
10.32. For the present Point, the important distinction
is that the surrounding circumstances may
assist in assessing the meaning or likely effect
of a statement. They cannot, however, replace
an essential ingredient of the offence. A tense
situation does not convert a statement that
does not insult religion or religious beliefs into
such an insult. Nor does the existence of
tension, without supporting facts, establish the
deliberate and malicious intention required by
Section 299 BNS.
10.33. The Petitioner also relied on Amish Devgan
(Paragraphs 70, 73, 102 and 103) and Ramesh
v. Union of India (Paragraph 13), principally
in relation to Section 196 BNS. Those
authorities were considered under Point (i).
Since Section 299 BNS does not use the
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expression “likely”, the discussion under Point
(i) concerning that expression and the
reasonable-person test is not necessary to
decide the present Point.
10.34. Learned HCGP submitted that whether the
ingredients of the offence are established
should be left to investigation and trial. It is
correct that the Court is not deciding the
Petitioner’s guilt at this stage. The question,
however, is whether the allegations, taken at
face value, disclose the ingredients of the
offence alleged.
10.35. The complaint alleges the use of an offensive
taunt referring to Muslims. The Court does not
approve of the language used, nor does it
suggest that such language cannot cause hurt
or offence. The question is narrower: whether
the allegations disclose an offence under
Section 299 BNS.
10.36. For the reasons stated above, the alleged words
are directed at a person’s political position and
refer to Muslims as a community. The complaint
does not disclose an insult to the religion or
religious beliefs of that community. Nor does it
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set out facts showing that the Petitioner acted
with the deliberate and malicious intention of
outraging the community’s religious feelings.
The surrounding circumstances do not cure
these omissions.
10.37. Accordingly, the allegations, even when
considered alongside the circumstances stated
in the complaint, do not disclose the essential
ingredients of an offence under Section 299
BNS.
10.38. This Court answers Point No. (ii) in the
negative. The allegations in the complaint
concerning the Petitioner’s alleged utterances
and the circumstances in which they were made
do not disclose the essential ingredients of an
offence under Section 299 of the Bharatiya
Nyaya Sanhita, 2023.
11. Answer to Point No (iii): Whether the
registration of the FIR without conducting a
preliminary enquiry under Section 173(3) of
the Bharatiya Nagarik Suraksha Sanhita, 2023,
in the facts and circumstances of the present
case, vitiates the registration of the crime?
11.1. Sri.Aiyappa.K.G., learned counsel for the
Petitioner, submitted that the police registered
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the FIR without conducting a preliminary
enquiry under Section 173(3) of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (BNSS). He
initially contended that such an enquiry was
mandatory where the alleged offence was
based on spoken or written words and fell
within the punishment range specified in that
provision.
11.2. Learned counsel submitted that Section 173(3)
BNSS provides a safeguard against the
unnecessary registration of criminal cases and
is particularly important where the allegations
concern speech protected by Article 19(1)(a) of
the Constitution. He also contended that the
provision requires prior permission from an
officer not below the rank of Deputy
Superintendent of Police before a preliminary
enquiry is undertaken.
11.3. In support of his submissions, learned counsel
relied on Imran Pratapgadhi v. State of
Gujarat , particularly paragraphs 28-31 and 33-
37. He referred to the statutory scheme under
Section 173 BNSS and its comparison with
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Section 154 of the Code of Criminal Procedure,
1973.
11.4. His submission is also that Section 173(3)
BNSS permits a preliminary enquiry in cases
falling within the prescribed punishment range,
subject to the conditions in the provision. If the
police choose to invoke the concerned penal
provisions, they must comply with its
requirements, including obtaining prior
permission. He submitted that the absence of
an enquiry in the present case affected the
validity of the FIR.
11.5. Sri Ranjith Kumar N, learned High Court
Government Pleader, opposed the contention
that a preliminary enquiry was necessary. He
submitted that the alleged statement had been
recorded and circulated on social media. Its
existence and authorship could therefore be
verified.
11.6. Learned HCGP argued that the investigation
was required to examine more than the words
appearing in the recording. It would also have
to consider the circumstances in which the
statement was made, its context, how it was
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circulated, the persons to whom it was directed,
its effect and whether it was likely to aggravate
the communal situation.
11.7. He further submitted that the existence of a
recording did not make an investigation
unnecessary. The recording was only the
starting point for examining the surrounding
circumstances. Whether the statement satisfied
the ingredients of the alleged offences,
according to him, could not be finally decided at
the threshold.
11.8. Learned HCGP did not contend that a
preliminary enquiry had in fact been conducted
or that prior permission had been obtained. His
principal submission was that no preliminary
enquiry was required in the circumstances of
this case.
11.9. SCOPE OF THE ISSUE
11.10. The question under this Point is limited. It is
whether registration of Crime No. 201/2025 is
invalid because the police did not conduct a
preliminary enquiry under Section 173(3)
BNSS.
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11.11. Whether the allegations disclose the ingredients
of the offences alleged is a separate question.
That issue has already been considered under
Points (i) and (ii). The two questions must not
be confused. An FIR may not be invalid merely
because a preliminary enquiry was not
conducted, yet the allegations in it may
independently fail to disclose an offence.
11.12. THE STATUTORY PROVISION
11.13. Section 173 BNSS deals with information
relating to the commission of cognizable
offences. Sub-section (1) provides, among
other things, for information about a cognizable
offence to be given orally or by electronic
communication to the officer in charge of a
police station.
11.14. Sub-section (3) provides:
“Without prejudice to the provisions contained in
section 175, on receipt of information relating to
the commission of any cognizable offence, which
is made punishable for three years or more but
less than seven years, the officer in charge of the
police station may with the prior permission from
an officer not below the rank of Deputy
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Superintendent of Police, considering the nature
and gravity of the offence,-
(i) proceed to conduct preliminary enquiry to
ascertain whether there exists a prima facie case
for proceeding in the matter within a period of
fourteen days; or
(ii) proceed with investigation when there exists
a prima facie case.”
11.15. A reading of Section 173 BNSS indicates that
where information concerns a cognizable
offence punishable with three years or more but
less than seven years, the officer in charge of
the police station may, after obtaining the
required prior permission and considering the
nature and gravity of the offence, choose either
to conduct a preliminary enquiry within
fourteen days or to proceed with investigation
where a prima facie case exists.
11.16. The provision does not state that a preliminary
enquiry must be conducted in every case falling
within this punishment range. It gives the
police a choice between the two courses
specified in the sub-section, subject to its
conditions.
11.17. THE LAW LAID DOWN IN IMRAN
PRATAPGADHI
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11.18. In Imran Pratapgadhi v. State of Gujarat
[paragraphs 28-31 and 53.1-53.2], the Hon’ble
Supreme Court clarified that although
registration of an FIR is ordinarily mandatory
where the information discloses the commission
of a cognizable offence, that principle is
expressly subject to the statutory safeguards
contained in Section 173(3) of the BNSS. The
statutory scheme must be applied in its
entirety, and the general rule governing
registration of an FIR cannot be invoked to
render the safeguard under Section 173(3)
nugatory.
11.19. Section 173(3) BNSS specifically contemplates
a preliminary enquiry in cases involving
cognizable offences punishable with
imprisonment for a period of three years or
more but less than seven years. Subject to the
statutory conditions, including prior permission
from an officer not below the rank of Deputy
Superintendent of Police and consideration of
the nature and gravity of the offence, the police
may conduct a preliminary enquiry to ascertain
whether a prima facie case exists. The provision
is a substantive procedural safeguard and must
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be given meaningful effect, particularly where
the allegations arise from speech or written
expression.
11.20. The significance of the preliminary enquiry is
especially pronounced where the alleged
criminality is founded upon words spoken,
written or published. In such cases, the mere
registration of a complaint, or the complainant’s
characterisation of the expression as offensive,
objectionable or inflammatory, cannot
substitute for a reasoned assessment of
whether the statutory ingredients of the alleged
offence are disclosed. The words must be
considered in their entirety and in their relevant
context, and their alleged effect must be
assessed against the ingredients of the offence
actually invoked.
11.21. The Hon’ble Supreme Court emphasised that,
even at the threshold, the police must read or
hear the words complained of and determine
whether, assuming the allegations to be correct,
they disclose the commission of a cognizable
offence. Such an assessment is not itself an
impermissible preliminary enquiry under
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Section 173(1) BNSS; it is a necessary
examination of the legal sufficiency of the
information received. The police cannot
mechanically proceed on the basis of
allegations without first considering whether the
words, on their face, satisfy the essential
ingredients of the offence alleged.
11.22. More importantly, the Hon’ble Supreme Court,
while considering the special constitutional
concerns arising from criminal proceedings
founded upon speech, observed in paragraph
37 that it is always appropriate to exercise the
option under Section 173(3) BNSS to conduct a
preliminary enquiry in cases involving
allegations of cognizable offences punishable up
to seven years where the allegations are based
on spoken or written words. The Hon’ble
Supreme Court further observed that the
superior officer would normally grant
permission for such an enquiry. These
observations must be given due weight: they
articulate the manner in which the statutory
discretion ought ordinarily to be exercised when
the initiation of criminal proceedings may
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impinge upon the freedom of speech and
expression.
11.23. The use of the expressions “always appropriate”
and “normally” is material. It demonstrates
that, in speech-related cases falling within the
statutory framework of Section 173(3) BNSS, a
preliminary enquiry is not to be treated as an
exceptional indulgence dependent merely upon
the unfettered preference of the investigating
officer. Rather, the judgment establishes a
strong judicial presumption in favour of
exercising the statutory option, subject to the
facts of the case and the conditions prescribed
by law. A departure from that course must be
consistent with the statutory scheme and the
constitutional considerations identified by the
Hon’ble Supreme Court.
11.24. This approach follows from the Court’s
recognition that the right to freedom of speech
and expression under Article 19(1)(a) of the
Constitution cannot be rendered illusory by the
mechanical initiation of criminal proceedings on
the basis of speech alleged to be objectionable.
The process of criminal law itself may have a
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chilling effect upon the exercise of
constitutionally protected expression.
Accordingly, where the statutory conditions for
a preliminary enquiry are satisfied and the
allegations arise from spoken or written words,
the safeguard under Section 173(3) must be
considered and ordinarily invoked before the
matter proceeds further, so that the existence
of a prima facie case may be objectively
assessed.
11.25. The requirement of such scrutiny is reinforced
by the Court’s exposition of Section 196 of the
BNS. The offence is not made out merely
because words are offensive, distasteful,
provocative or objectionable to some persons.
The expression must satisfy the statutory
ingredients, including the promotion or
attempted promotion of disharmony, or feelings
of enmity, hatred or ill-will between the groups
or communities contemplated by the provision.
The legal character of the words, rather than
the subjective reaction of the complainant, is
therefore decisive. A preliminary enquiry
provides an appropriate procedural opportunity
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to assess whether the allegations disclose the
ingredients required by law.
11.26. The Hon’ble Supreme Court’s observations in
paragraphs 48 and 49, read with its conclusions
in paragraph 53, underscore the constitutional
obligation to protect legitimate expression and
to prevent the criminal process from being set
in motion without due regard to the nature and
effect of the words complained of. In paragraph
53.5, the Hon’ble Supreme Court reiterated the
appropriateness of a preliminary enquiry in
speech-related cases falling within Section
173(3) BNSS and the expectation that the
competent superior officer would normally grant
permission. Paragraph 53.6 further clarifies that
the effect of the expression must be assessed
by reference to reasonable, strong-minded, firm
and courageous persons, and not persons who
are hypersensitive or insecure.
11.27. The principles laid down in Imran
Pratapgadhi [paragraphs 28-31, 33, 37 and
53.1-53.5 ]must therefore be read
cumulatively.
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11.28. First, the information must be examined to
determine whether the ingredients of a
cognizable offence are disclosed.
11.29. Secondly, where the allegations arise from
speech or written expression and the offence
falls within the punishment range contemplated
by Section 173(3) BNSS, the investigating
agency must give due and serious consideration
to conducting a preliminary enquiry, subject to
the statutory requirements.
11.30. Thirdly, the decision whether to exercise that
option must be informed by the constitutional
protection afforded to free speech and
expression, rather than by a mechanical
application of the general rule concerning FIR
registration.
11.31. Consequently, in a case falling within Section
173(3) BNSS in which the alleged offence is
founded upon spoken or written words, the
course indicated by the Hon’ble Supreme Court
is that a preliminary enquiry should ordinarily
precede further action, upon obtaining the
requisite prior permission and complying with
the statutory conditions. The discretion
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conferred by the provision cannot be exercised
arbitrarily or treated as a mere formality. The
judgment’s express guidance that such an
enquiry is “always appropriate” and that
permission would “normally” be granted
requires the authority to approach the question
with a strong presumption in favour of an
enquiry. The absence of such an enquiry,
particularly where no consideration of this
safeguard is apparent, calls for scrutiny in light
of the statutory framework and the
constitutional principles articulated by the
Hon’ble Supreme Court.
11.32. In the present case, therefore, if the allegations
arise from speech or written expression and the
alleged offence falls within the punishment
range specified in Section 173(3) BNSS, it is
necessary to examine whether the competent
superior officer’s prior permission was obtained
and whether the statutory option of conducting
a preliminary enquiry was duly considered and
exercised. If the police proceeded mechanically
without addressing this safeguard, such action
would be inconsistent with the approach
mandated by the principles laid down in Imran
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Pratapgadhi . This Court must further examine
whether the words complained of, taken in their
entirety and in context, disclose the essential
ingredients of the alleged offence. Where they
do not, the continuation of criminal proceedings
cannot be justified merely by the fact that an
investigation has commenced.
11.33. WHETHER THE ABSENCE OF A
PRELIMINARY ENQUIRY INVALIDATES THE
FIR
11.34. Learned Counsel for the Petitioner contended
that a preliminary enquiry was mandatory
before registration of the FIR. However, the
correct formulation of the submission, having
regard to the statutory language and the law
laid down in Imran Pratapgadhi v. State of
Gujarat , is that, in cases falling within the
ambit of Section 173(3) of the BNSS, a
preliminary enquiry ought ordinarily to be
conducted where the allegations arise from
spoken or written words. Although the provision
employs the expression “may”, the Hon’ble
Supreme Court has emphasised that, in such
cases, it is “always appropriate” to exercise the
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option of conducting a preliminary enquiry and
that permission from the competent superior
officer would “normally” be granted.
11.35. The statutory discretion under Section 173(3)
BNSS cannot, therefore, be construed as an
unfettered choice to dispense with a preliminary
enquiry without due consideration of the nature
of the allegations and the constitutional
implications of initiating criminal proceedings on
the basis of speech or written expression. In
Imran Pratapgadhi, the Hon’ble Supreme Court
underscored the importance of this safeguard in
preventing the criminal process from being set
in motion mechanically in cases where the
words complained of may implicate the freedom
of speech and expression under Article 19(1)(a)
of the Constitution. The discretion conferred by
the provision must accordingly be exercised in
the light of these principles, and a preliminary
enquiry should ordinarily be the course adopted
in qualifying speech-related cases.
11.36. The purpose of the preliminary enquiry, as
explained in Imran Pratapgadhi [paragraphs
28-31, 33, 37 and 53.1-53.5], is to ascertain
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whether a prima facie case exists before the
matter proceeds further. This safeguard
assumes particular significance where the
alleged offence is founded upon spoken or
written words, since the mere fact that an
expression is alleged to be offensive,
objectionable or inflammatory does not, by
itself, establish the ingredients of a criminal
offence. The words must be assessed in their
entirety and context, and their effect must be
evaluated by applying the legal standards
identified by the Hon’ble Supreme Court. The
preliminary enquiry thus serves not merely as a
procedural formality, but as an important
safeguard against the unwarranted invocation
of criminal law in matters implicating
constitutionally protected expression.
11.37. At the same time, the absence of a preliminary
enquiry cannot, without more, be treated as
automatically rendering every FIR invalid. The
statutory language and the judgment in Imran
Pratapgadhi do not establish an inflexible rule
that an FIR registered without a preliminary
enquiry is void in every case falling within
Section 173(3) BNSS. The legal significance of
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the omission must be assessed in the context of
the statutory scheme, the nature of the
allegations and the principles governing the
exercise of the discretion conferred by the
provision. The correct position is that, in
qualifying speech-related cases, the failure to
give due consideration to the preliminary-
enquiry safeguard may warrant strict judicial
scrutiny, particularly where the FIR appears to
have been registered mechanically without an
adequate assessment of whether the alleged
words disclose the ingredients of the offence
invoked.
11.38. Where an FIR is challenged on the ground that
its allegations do not disclose the commission
of an offence, the Court must independently
examine the allegations and determine whether
the essential ingredients of the offence are
made out, irrespective of whether a preliminary
enquiry preceded registration. In the present
case, that examination has been undertaken
under Points (i) and (ii). The absence of a
preliminary enquiry must be considered in
conjunction with the nature of the allegations
and the applicable principles laid down in
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Imran Pratapgadhi [paragraphs 37, 48, 49
and 53.5]; it cannot, by itself, substitute for the
substantive assessment of whether the FIR
discloses a cognizable offence.
11.39. The Petitioner further submitted that, where the
police elect to exercise the power under Section
173(3) BNSS, compliance with the conditions
prescribed therein is mandatory, including
obtaining prior permission from an officer not
below the rank of Deputy Superintendent of
Police. This submission is supported by the
express terms of the provision. However, the
Petitioner’s principal grievance in the present
case is that no preliminary enquiry was
conducted. Learned HCGP has not asserted that
they invoked the procedure under Section
173(3), and the material before this Court does
not establish whether prior permission was
sought or obtained.
11.40. A distinction must accordingly be maintained
between a failure to consider or exercise the
statutory option of conducting a preliminary
enquiry and a failure to comply with the
conditions governing the exercise of that power.
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The former raises the question whether the
discretion was exercised consistently with the
guidance in Imran Pratapgadhi [paragraphs
37 and 53.5], particularly the Court’s
observations that a preliminary enquiry is
“always appropriate” in qualifying speech-
related cases and that permission would
“normally” be granted. The latter concerns
compliance with the procedural requirements
applicable where the power is exercised.
11.41. Accordingly, while the absence of a preliminary
enquiry does not automatically invalidate the
FIR in every case, it cannot be dismissed as
legally immaterial where the allegations arise
from speech or written expression and fall
within the scope of Section 173(3) BNSS. In
such circumstances, the Court must consider
whether the statutory safeguard received due
consideration in accordance with the principles
laid down in Imran Pratapgadhi . This issue
remains distinct from, and does not displace,
the Court’s independent determination under
Points (i) and (ii) as to whether the allegations,
taken at face value, disclose the commission of
the offence alleged.
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11.42. THE RELATIONSHIP WITH ARTICLE
19(1)(A)
11.43. Learned counsel for the Petitioner submitted
that the safeguard contemplated under Section
173(3) of the BNSS must be given meaningful
legal effect in light of the fundamental right to
freedom of speech and expression guaranteed
under Article 19(1)(a) of the Constitution.
Reliance was placed on Imran Pratapgadhi
particularly paragraphs 37, 48 and 49, to
contend that where the initiation of criminal
proceedings is founded upon spoken or written
words, the statutory discretion to conduct a
preliminary enquiry must be exercised
consistently with the constitutional obligation to
protect free expression.
11.44. In Imran Pratapgadhi , the Hon’ble Supreme
Court did not treat the preliminary-enquiry
mechanism as a matter of procedural
convenience alone. In paragraph 37, the Court
observed that, in cases involving allegations of
cognizable offences punishable up to seven
years and founded upon spoken or written
words, it is always appropriate to exercise the
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option of conducting a preliminary enquiry
under Section 173(3) BNSS. The Hon’ble
Supreme Court further observed that the
competent superior officer would normally grant
permission for such an enquiry. These
observations, read with the Hon’ble Supreme
Court’s discussion of the constitutional
significance of free speech and expression in
paragraphs 48 and 49, give the statutory
safeguard particular force in cases where
criminal allegations arise from written words or
expression.
11.45. The use of the expressions “always appropriate”
and “normally” cannot be reduced to an
observation of merely aspirational value. They
constitute authoritative judicial guidance on the
exercise of the discretion conferred by Section
173(3) BNSS in the specific category of speech-
related cases addressed by the Hon’ble
Supreme Court. Although the provision employs
the word “may”, the discretion thereby
conferred must be exercised in accordance with
the principles laid down by the Hon’ble
Supreme Court. It cannot be treated as an
unstructured choice to dispense with a
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preliminary enquiry without due regard to the
nature of the allegations and the constitutional
interests implicated. In cases falling within the
provision, the ordinary course should therefore
be to undertake a preliminary enquiry, subject
to compliance with the statutory conditions.
11.46. The constitutional significance of this safeguard
lies in the fact that the initiation of criminal
proceedings may itself burden the exercise of
freedom of speech and expression. The
prospect of investigation and prosecution may
deter not only the person proceeded against
but also others from engaging in legitimate
expression. The protection afforded by Article
19(1)(a) would be materially weakened if
allegations concerning spoken or written words
could routinely trigger the criminal process
without due scrutiny of whether the statutory
ingredients of the alleged offence are disclosed.
The preliminary-enquiry mechanism must
therefore be given practical effect as a
safeguard against the mechanical invocation of
criminal law in speech-related cases.
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11.47. Accordingly, where the allegations arise from
spoken or written words and the offence falls
within the punishment range contemplated by
Section 173(3) BNSS, the police must give
genuine and reasoned consideration to the
option of conducting a preliminary enquiry, in
accordance with the guidance in Imran
Pratapgadhi . The statutory conditions,
including prior permission from an officer not
below the rank of Deputy Superintendent of
Police, must be observed where that procedure
is invoked. The requirement of prior permission
is not a dispensable formality; it places the
decision within the supervisory framework
expressly prescribed by the legislature. The
superior officer’s role must be understood in
light of the Court’s observation that permission
would normally be granted in the category of
speech-related cases under consideration.
11.48. The legal effect of this safeguard is not that
every FIR registered without a preliminary
enquiry automatically becomes void. Rather,
where the case falls within Section 173(3)
BNSS, the failure to consider or exercise the
option of conducting an enquiry must be
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assessed against the statutory framework and
the binding guidance in Imran Pratapgadhi . A
mechanical decision to proceed without
addressing the safeguard, particularly in a case
involving speech or written expression, may
constitute a failure to exercise the statutory
discretion in accordance with the governing
legal principles. The Court must therefore
examine whether the statutory option was duly
considered and whether the circumstances
disclose a departure from the ordinary course
indicated by the Hon’ble Supreme Court.
11.49. This scrutiny is distinct from the Court’s
independent assessment of whether the FIR
discloses the commission of an offence. Even
where a preliminary enquiry has not been
conducted, the Court must examine whether
the words complained of, read in their entirety
and in context, satisfy the essential ingredients
of the offence alleged. Conversely, the
existence of an FIR cannot, by itself, cure the
failure of the allegations to disclose those
ingredients. The procedural safeguard under
Section 173(3) and the substantive
requirements of the alleged offence operate
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together: the former governs the appropriate
exercise of the statutory process in qualifying
cases, while the latter determines whether the
criminal law has been validly attracted on the
allegations made.
11.50. The protection of Article 19(1)(a) must thus
inform both the exercise of statutory discretion
by the police and the Court’s scrutiny of
criminal proceedings founded upon speech. The
principle emerging from Imran Pratapgadhi is
that the statutory option of preliminary enquiry
must not be rendered ineffective by a
mechanical invocation of the general rule
concerning FIR registration. In qualifying
speech-related cases, the enquiry should
ordinarily be undertaken, with the requisite
supervisory permission, so that the existence of
a prima facie case can be assessed before the
matter proceeds further. Any departure from
this course must be examined in the light of the
statutory scheme and the constitutional
concerns identified by the Hon’ble Supreme
Court.
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11.51. Accordingly, the safeguard under Section
173(3) BNSS must be treated as a legally
significant protection, rather than a procedural
formality. While its omission does not
automatically invalidate every FIR, a failure to
give due consideration to the safeguard in a
qualifying speech-related case is amenable to
judicial scrutiny and must be evaluated against
the principles laid down in Imran
Pratapgadhi . This approach gives effect to the
statutory discretion, preserves the lawful
authority of the police to investigate cognizable
offences, and ensures that the fundamental
right to freedom of speech and expression is
not subordinated to the unexamined initiation
of criminal proceedings.
11.52. LEARNED HCGP’S ARGUMENT REGARDING
THE RECORDING
11.53. Learned HCGP submitted that no preliminary
enquiry was necessary since the alleged
statement had been recorded and its authorship
could be verified. This submission cannot be
accepted merely on the ground that a recording
is available.
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11.54. In the present technological era, deepfake
technology, audio/video morphing, voice
cloning and other forms of digital manipulation
may create, alter or misattribute audio-visual
material. The existence of a recording does not,
by itself, establish its authenticity, integrity or
correct attribution. These are matters that may
require appropriate verification, depending
upon the nature of the material and the
circumstances of the case.
11.55. More importantly, the authenticity of a
recording and the legal sufficiency of the words
contained in it are distinct questions. Even if
the recording is genuine and the statement is
correctly attributed to the Petitioner, it does not
necessarily follow that the words disclose the
commission of a criminal offence. The content,
context and effect of the expression must be
assessed against the essential ingredients of
the offence alleged. The mere availability of a
recording, therefore, cannot by itself establish
that a prima facie case exists.
11.56. It is in this context that the preliminary enquiry
under Section 173(3) of the BNSS assumes
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significance. Where the alleged cognizable
offence falls within the punishment range
specified in that provision, and the statutory
conditions are satisfied, the option of
conducting a preliminary enquiry enables the
competent authority to assess whether a prima
facie case exists. In a speech-related case, that
assessment should not be reduced to the
mechanical identification of a recording or the
attribution of a voice. It must also permit due
consideration of the words used, their context
and whether the material, taken at its face
value, discloses the essential ingredients of the
alleged offence.
11.57. In Imran Pratapgadhi , the Hon’ble Supreme
Court observed in paragraph 37, and reiterated
in paragraph 53.5, that it is “always
appropriate” to exercise the option of
conducting a preliminary enquiry under Section
173(3) BNSS in qualifying cases involving
spoken or written words, and that the
competent superior officer would “normally”
grant permission for such an enquiry. These
observations must be read in conjunction with
the constitutional protection of freedom of
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speech and expression under Article 19(1)(a) of
the Constitution. They underscore the
importance of a considered assessment before
criminal law is set in motion on the basis of
alleged speech, particularly where the meaning,
attribution or legal character of the expression
requires examination.
11.58. Learned HCGP’s contention that a preliminary
enquiry was unnecessary because the
statement had been recorded thus conflates the
existence of material with its verification and
legal evaluation.
11.59. A recording may constitute relevant material,
but its mere availability does not conclusively
establish its authenticity, attribution or criminal
character. Nor does the existence of a
recording, by itself, displace the need to
consider the statutory safeguard where the
allegations fall within Section 173(3) BNSS. In
qualifying speech-related cases, Imran
Pratapgadhi calls for the option of a
preliminary enquiry to be ordinarily exercised,
subject to the statutory conditions and the
circumstances of the case.
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11.60. At the same time, Section 173(3) BNSS
employs the expression “may”. The absence of
a preliminary enquiry does not, by that fact
alone, automatically invalidate every FIR falling
within the provision. The relevant question is
whether the statutory safeguard received due
consideration in the circumstances of the case,
having regard to the nature of the allegations,
the material relied upon, the ingredients of the
alleged offence and the constitutional protection
afforded to free expression.
11.61. Accordingly, Learned HCGP’s submission is
rejected to the extent that it treats the mere
existence of a recording as sufficient reason to
dispense with consideration of a preliminary
enquiry. The recording may assist in
establishing the alleged statement; it does not,
without more, resolve every question
concerning its attribution or whether the words
disclose an offence. In a qualifying speech-
related case, the guidance in Imran
Pratapgadhi requires the statutory option to
be considered in the manner indicated by the
Hon’ble Supreme Court.
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11.62. This Court answers Point No. (iii) in the
negative, in the limited sense that registration
of Crime No. 201/2025 without a preliminary
enquiry under Section 173(3) BNSS does not,
by that fact alone, automatically vitiate the FIR.
Learned HCGP’s reliance upon the existence of
a recording does not, however, constitute a
sufficient reason in itself for dispensing with
consideration of the statutory safeguard. In
qualifying speech-related cases, the
preliminary-enquiry option should ordinarily be
exercised, subject to the statutory conditions
and the guidance in Imran Pratapgadhi .
12. Answer to Point No (iv): Whether, having
regard to the protection guaranteed under
Article 19(1)(a) of the Constitution of India,
and the principles governing restrictions upon
freedom of speech and expression, the alleged
statement, considered in its entirety and in its
proper context, attracts the penal provisions
invoked against the Petitioner?
12.1. Sri.Aiyappa.K.G., learned counsel for the
Petitioner, submitted that freedom of speech
and expression is a fundamental right
guaranteed under Article 19(1)(a) of the
Constitution of India. He argued that the
complaint seeks to restrict the Petitioner’s right
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to express her views and criticise the conduct of
public authorities. According to him, the
Petitioner intended to express displeasure and
criticise the police, not to incite violence or
promote hostility between communities.
12.2. Learned counsel relied on Sri Basanagouda R.
Patil v. State of Karnataka (paragraph 10),
which refers to the principles stated by the
Hon’ble Supreme Court in Patricia Mukhim v.
State of Meghalaya (paragraphs 8-15). He
submitted that freedom of speech is essential
to democratic debate and that criticism, even
when strongly worded, does not become a
criminal offence merely because it is offensive
or unpopular.
12.3. Relying on Ramesh v. Union of India ,
particularly paragraph 13, learned counsel
submitted that the effect of speech must be
assessed objectively, from the standpoint of a
reasonable, strong-minded and firm person,
rather than that of an unusually sensitive
listener. He also relied on Amish Devgan v.
Union of India , particularly paragraphs 70,
73, 102 and 103, to distinguish advocacy and
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discussion from incitement, which may attract
criminal liability.
12.4. Learned counsel further relied on Imran
Pratapgadhi v. State of Gujarat , particularly
paragraphs 48-49, and submitted that a
constitutional court must intervene where the
executive fails to protect fundamental rights.
He alleged that the complaint was false and had
been initiated to stifle the Petitioner’s freedom
of speech.
12.5. Sri Ranjith Kumar N., learned High Court
Government Pleader, submitted that the State
does not dispute the protection afforded to
freedom of speech and expression under Article
19(1)(a). However, that right is subject to the
reasonable restrictions permitted by Article
19(2), including restrictions in the interests of
public order.
12.6. Learned HCGP argued that freedom of speech
does not confer immunity from criminal
investigation where the allegations prima facie
disclose an offence under a valid penal
provision. He relied on Sections 196 and 299 of
the BNS, and submitted that the constitutional
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protection cannot be used to prevent the
application of those provisions when their
essential ingredients are satisfied.
12.7. Learned HCGP also relied on the surrounding
circumstances in support of their opposition to
the petition. Those circumstances have been
considered under Point (i), and are not
repeated here.
12.8. SCOPE OF THE CONSTITUTIONAL ISSUE
12.9. The dispute under this Point is not about the
validity of Sections 196(1)(a) and 299 BNS. The
Petitioner has not challenged either provision as
unconstitutional or as exceeding the restrictions
permitted by Article 19(2). Learned HCGP, for
their part, rely on those provisions as lawful
restrictions on speech. The validity of the
provisions is therefore not in issue and is not
decided.
12.10. The question is whether the alleged statement,
considered in its entirety and in the context
disclosed by the complaint, attracts the
provisions invoked against the Petitioner. That
question has already been examined under
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Points (i) and (ii). The Court relies on its
findings under those Points and does not repeat
the detailed analysis of the statutory
ingredients.
12.11. FREEDOM OF SPEECH AND ITS
CONSTITUTIONAL LIMITS
12.12. Article 19(1)(a) guarantees freedom of speech
and expression. That freedom is fundamental to
democratic debate and includes the right to
express opinions, question public conduct and
criticise those in authority. It is not, however,
an absolute right. Article 19(2) permits
reasonable restrictions on specified grounds,
including public order and incitement to an
offence.
12.13. The principles set out in Patricia Mukhim ,
(paragraphs 8-15) as reproduced in Sri
Basanagouda R. Patil , (paragraph 10)
recognise both the importance of free speech
and the constitutional limits on its exercise. The
mere fact that a statement is offensive,
intemperate or unpopular does not, by itself,
justify criminal prosecution. Equally, the
protection of free speech does not place speech
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that satisfies the ingredients of a valid penal
provision beyond the reach of law.
12.14. In Amish Devgan , paragraph 102, the Hon’ble
Supreme Court referred to the distinction drawn
in Shreya Singhal v. Union of India [(2015)
5 SCC 1] (Paragraphs 13, 20 and 21) between
advocacy, discussion and incitement. Advocacy
and discussion fall within the protection of
freedom of expression; incitement may be
punished in accordance with law. Amish
Devgan , in paragraphs 70, 73, and 103,
emphasises the need to assess the content of
the statement, its context and its likely effect
rather than to treat every offensive expression
as criminal.
12.15. These principles apply to the present case.
They do not create a separate test detached
from the statutory provisions. They require the
Court to apply those provisions consistently
with the constitutional protection of speech.
12.16. Learned HCGP is correct in submitting that a
person cannot avoid investigation merely by
asserting that the impugned words constitute
an exercise of freedom of speech. The
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constitutional protection is not an automatic
immunity from the operation of criminal law.
The decisive question is whether the allegations
disclose the ingredients of the offences invoked.
12.17. That question has been answered under Points
(i) and (ii). For the reasons recorded there, the
allegations, taken at face value, do not disclose
the essential ingredients of the offences
punishable under Sections 196(1)(a) and 299
BNS. Those findings are sufficient to resolve the
present constitutional issue. There is no need to
restate the meaning of the statutory ingredients
or to repeat the analysis of the words and
surrounding circumstances.
12.18. Learned HCGP’s reliance on Article 19(2) does
not alter that conclusion. Article 19(2) permits
reasonable restrictions on freedom of speech; it
does not dispense with the requirements of the
penal provisions relied on to restrict that
freedom. Where the allegations do not disclose
the ingredients of the offences invoked, the
State cannot justify continuation of the
prosecution merely by referring to public order
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or to the possibility that the statement may
have caused offence.
12.19. This Court has also considered Learned HCGP’s
reliance on the surrounding circumstances. As
explained under Point (i), those circumstances
do not cure the deficiencies in the allegations.
The Court therefore finds no basis to reach a
different conclusion under Article 19(1)(a).
12.20. Freedom of speech and expression is protected
by Article 19(1)(a), subject to the reasonable
restrictions permitted by Article 19(2). That
protection does not prevent prosecution where
the allegations disclose a valid offence. At the
same time, the State cannot sustain a
prosecution under a penal provision when the
allegations do not satisfy its essential
ingredients.
12.21. In the present case, the findings under Points
(i) and (ii) establish that the allegations do not
disclose the offences punishable under Sections
196(1)(a) and 299 BNS. Learned HCGP’s
reliance on Article 19(2) and the surrounding
circumstances does not overcome those
findings. This Court accordingly concludes that
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the alleged statement, considered in its entirety
and in the context disclosed by the complaint,
does not attract the penal provisions invoked
against the Petitioner.
12.22. This Court answers Point No. (iv) in the
negative. Having regard to the protection
guaranteed under Article 19(1)(a) of the
Constitution of India and the principles
governing restrictions on freedom of speech
and expression, the alleged statement,
considered in its entirety and in its proper
context, does not attract the penal provisions
invoked against the Petitioner, namely, Sections
196(1)(a) and 299 of the Bharatiya Nyaya
Sanhita, 2023.
13. Answer to Point No (v): Whether the Petitioner
has made out a case for exercise of the
inherent jurisdiction of this Court under Section
528 of the BNSS for quashing Crime
No.201/2025 and all consequential proceedings
pending before the Court of the II Additional
JMFC, Maddur?
13.1. Sri.Aiyappa.K.G., learned counsel for the
Petitioner, submitted that the allegations in the
complaint, even if accepted in full, do not
disclose the essential ingredients of the
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offences invoked against the Petitioner. He
argued that continuation of the criminal
proceedings in the absence of those ingredients
would amount to an abuse of the process of law
and cause unnecessary harassment. He
therefore sought quashing of Crime No.
201/2025 and all consequential proceedings.
13.2. Learned counsel relied on State of A.P. v.
Golconda Linga Swamy , particularly
paragraph 12, for the principle that where an
FIR, read as it stands and without adding or
subtracting anything, does not disclose an
offence, the High Court may quash the
proceedings.
13.3. He also relied on Pradeep Kumar Kesarwani
v. State of Uttar Pradesh and Another ,
paragraph 20, which sets out four steps for
considering a request to quash criminal
proceedings. Those steps concern whether the
material relied on by the accused is reliable and
conclusive, whether it rules out the allegations,
whether it remains unrefuted by the
prosecution or complainant, and whether
continuation of the proceedings would amount
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to an abuse of process and would not serve the
ends of justice.
13.4. Learned counsel further referred to Imran
Pratapgadhi v. State of Gujarat , paragraphs
48-49, in support of his submission that
constitutional courts must protect fundamental
rights when necessary. This aspect has already
been addressed under Point (iv), and need not
be examined again in detail.
13.5. Sri Ranjith Kumar N., learned High Court
Government Pleader, opposed the petition. He
submitted that the jurisdiction to quash criminal
proceedings must be exercised with caution and
that the Court should not conduct a mini-trial or
assess the evidence in detail at this stage.
13.6. Learned HCGP argued that where the
allegations disclose the ingredients of an
offence and the surrounding circumstances
establish a prima facie case, the investigation
should be allowed to continue. The proceedings
should not be quashed merely because the
accused raises a possible defence or because
the statement may admit of more than one
interpretation.
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13.7. He further submitted that the alleged statement
and its circulation, considered along with the
surrounding circumstances, disclose a prima
facie case requiring investigation. According to
him, whether the statement constitutes an
offence should be determined after
investigation and, if necessary, at trial. He
maintained that the proceedings were neither
inherently improbable nor legally incapable of
resulting in a conviction and that the petition
should therefore be dismissed.
13.8. Learned HCGP also submitted that the present
proceedings were at the threshold stage, that
the relevant question was whether the
allegations disclosed cognizable offences, and
that the recording and circulation of the
statement provided a basis for investigation.
These submissions have been considered under
the earlier Points and are addressed below only
to the extent necessary to decide whether the
proceedings should be quashed.
13.9. This Point concerns the exercise of the inherent
jurisdiction of this Court under Section 528 of
the BNSS to prevent abuse of the process of
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law and secure the ends of justice. The
question is whether the allegations in Crime No.
201/2025 justify continuation of the criminal
proceedings against the Petitioner.
13.10. The conclusions already reached under the
earlier Points are material to this determination.
Under Point (i), the Court found that the
allegations do not disclose the essential
ingredients of an offence under Section
196(1)(a) of the BNS. Under Point (ii), the
Court reached the same conclusion in respect of
Section 299 BNS. Under Point (iii), the Court
held that the absence of a preliminary enquiry
does not, by itself, invalidate the registration of
the FIR. However, failure to conduct such an
enquiry may require stricter judicial scrutiny
when the FIR is challenged. Under Point (iv),
the Court considered the constitutional
protection of freedom of speech and expression
in light of its findings on the two offences.
13.11. The issue is not whether the Petitioner has
established her innocence through a separate
body of evidence. It is whether the allegations
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themselves disclose the offences for which the
criminal process has been set in motion.
13.12. APPLICABLE PRINCIPLES FOR QUASHING
13.13. In State of A.P. v. Golconda Linga Swamy ,
paragraph 12, the Hon’ble Supreme Court
recognised that where an FIR, read as it stands
and without adding or subtracting anything,
does not disclose an offence, interference by
the High Court to quash the proceedings is
legally permissible. This principle directly
applies where the defect lies in the legal
sufficiency of the allegations themselves.
13.14. The same approach is reflected in the passage
from Mahendra Singh Dhoni v. Yerraguntla
Shyamsundar , paragraph 9, reproduced in
paragraph 6 of Sri Keerthan Kumar & Anr. v.
State of Karnataka . The passage states that
proceedings may be quashed where the
allegations do not satisfy the essential
ingredients of the offence. It also refers to
paragraph 102 of State of Haryana v. Bhajan
Lal [1992 Supp (1) SCC 335] in support of that
conclusion.
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13.15. In paragraph 20 of Pradeep Kumar
Kesarwani v. State of Uttar Pradesh and
Another , the Hon’ble Supreme Court identified
four steps that ordinarily guide consideration of
a quashing petition where the accused relies on
material of her own. This Court must consider
whether that material is reliable and conclusive,
whether it rules out the allegations, whether
the prosecution or complainant has refuted or
can justifiably refute it, and whether
continuation of the proceedings would amount
to an abuse of process and would not serve the
ends of justice.
13.16. These steps must be applied according to the
nature of the challenge raised. They do not
require the accused to produce independent
material in every case. Where the challenge is
that the FIR itself does not disclose an offence,
the Court must examine the allegations on their
face, applying the principle in Golconda Linga
Swamy , Paragraph 12.
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13.17. APPLICATION OF THE PRINCIPLES TO
THIS CASE
13.18. The Petitioner does not rely on separate
material to disprove the occurrence of the
statement. Her principal contention is that the
words recorded in the complaint, even if
accepted as true, do not satisfy the legal
requirements of Sections 196(1)(a) and 299
BNS. The State also relies on the statement as
recorded and its circulation. The dispute is
therefore principally about the legal effect of
the allegations, rather than the truth of the
occurrence itself.
13.19. In these circumstances, the first three steps in
Pradeep Kumar Kesarwani , which concern
independent material relied on by an accused to
rebut the allegations, do not directly govern the
present challenge. That decision is
distinguished to this extent. The applicable
question is whether the FIR, on its face,
discloses the offences invoked.
13.20. The Court has already answered that question
under Points (i) and (ii). The allegations do not
disclose the essential ingredients of Section
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196(1)(a) BNS or Section 299 BNS. Those
findings are not based on accepting a defence
raised by the Petitioner or on resolving disputed
evidence in her favour. They follow from the
contents of the complaint itself.
13.21. The fourth step in Pradeep Kumar Kesarwani
is relevant. Where the allegations do not
disclose the essential ingredients of the
offences charged, continuation of the
proceedings would serve no legitimate purpose
and would amount to an abuse of the process
of the Court. A trial cannot remedy the absence
of an essential ingredient in the allegations on
which the prosecution rests.
13.22. THE RESPONDENTS’ OBJECTION THAT THE
COURT MUST NOT CONDUCT A MINI-TRIAL
13.23. This Court agrees with Learned HCGP that a
quashing petition is not an occasion to conduct
a mini-trial, weigh disputed evidence or
determine the Petitioner’s guilt or innocence.
This Court has not done so. It has taken the
allegations in the complaint as they stand and
applied the relevant legal requirements to
them.
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13.24. The distinction is between a case where the
allegations disclose an offence but the accused
disputes the evidence, and a case where the
allegations, even if accepted, do not disclose an
offence.
13.25. In the former, investigation and trial ordinarily
must proceed. In the latter, continuation of the
criminal process cannot be justified merely by
saying that further evidence may be collected.
13.26. The present case falls into the latter category.
The Petitioner’s success does not depend on a
finding that the complaint is false or that the
State’s version is factually incorrect. It rests on
the legal insufficiency of the allegations to
constitute the two offences invoked.
13.27. WHETHER FURTHER INVESTIGATION CAN
CURE THE DEFECT
13.28. Learned HCGP submitted that the effect of the
statement and its circulation require
investigation. In Amish Devgan v. Union of
India , paragraph 103, the Hon’ble Supreme
Court recognised that the prosecution must
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establish, through evidence, that the applicable
legal standard has been breached.
13.29. That principle does not mean that an
investigation must continue where the
allegations themselves omit an essential
ingredient of the offence. Evidence may
establish facts that have been alleged; it cannot
be used to substitute a legally necessary
allegation that is absent from the complaint.
The question is not whether the police might
collect further material, but whether the offence
is disclosed on the allegations presently relied
upon.
13.30. The State has not identified any additional
material that changes the legal character of the
statement as recorded in the complaint. Its
reliance remains on the statement, its
circulation and the surrounding circumstances.
For the reasons already given under Points (i)
and (ii), those matters do not establish the
essential ingredients of either offence. Further
investigation cannot, by itself, justify
continuation of proceedings that fail this
threshold test.
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13.31. PUBLIC ORDER AND THE LIMITS OF THIS
DECISION
13.32. This Court recognises the seriousness of the
events referred to by Learned HCGP, including
the stone-pelting incident of 07.09.2025, the
protest and bandh that followed, and the need
to maintain public order. Those concerns,
however, do not remove the requirement that a
criminal prosecution satisfy the essential
ingredients of the offence invoked.
13.33. This decision is confined to the Petitioner and
the offences punishable under Sections
196(1)(a) and 299 BNS. It does not prevent the
police or the State from investigating the stone-
pelting incident or any other offence disclosed
by the available material, subject to law. No
finding is made here on the guilt or liability of
any other person.
13.34. The governing principle is clear. Where an FIR,
read as it stands, does not disclose the
essential ingredients of the offences invoked,
the High Court may exercise its inherent
jurisdiction to prevent abuse of the process of
law. Golconda Linga Swamy (Paragraph 12)
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directly supports that approach. Pradeep
Kumar Kesarwani (Paragraph 20) supports
quashing where continuation of the proceedings
would amount to an abuse of process, although
its first three steps, concerning independent
material relied on by the accused, do not
directly apply to the present challenge.
13.35. For the reasons recorded under Points (i) and
(ii), the allegations in Crime No. 201/2025 do
not disclose the offences punishable under
Sections 196(1)(a) and 299 BNS. This
conclusion does not depend on a finding that
the complaint is false, nor does it require the
Court to assess disputed evidence. It follows
from the legal insufficiency of the allegations
themselves.
13.36. Continuation of the proceedings against the
Petitioner on those allegations would therefore
amount to an abuse of the process of the Court.
The Petitioner has made out a case for exercise
of the inherent jurisdiction of this Court under
Section 528 BNSS.
13.37. This Court answers point No. (v) in the
affirmative. The Petitioner has made out a case
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for exercise of the inherent jurisdiction of this
Court under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023. Crime No.
201/2025 and all consequential proceedings
arising from it against the Petitioner and
pending before the Court of the II Additional
JMFC, Maddur, are liable to be quashed.
14. Answer to Point No (vi): What order?
14.1. In view of the answers to the Points above, this
Court passes the following:
ORDER
(i) The criminal petition is allowed .
(ii) The FIR in Crime No.201/2025 registered
against the Petitioner for the offences
punishable under Sections 196(1)(a) and
Section 299 of the Bharatiya Nyaya Sanhita,
2023, at Maddur Police Station, and all
consequential proceedings arising therefrom
and pending before the Court of the 2nd Addl.
JMFC Court Maddur, Mandya, are hereby
quashed insofar as the Petitioner is concerned.
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This Court has been assisted by Ms. Harshada R.B., Law
Clerk, in reviewing this judgment.
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(SURAJ GOVINDARAJ)
JUDGE
SR
List No.: 1 Sl No.: 64