Nageshwar Mishra And Another vs State Of U.P. And Another

HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 45522 of 2026
Nageshwar Mishra and another
…..Applicant(s)
Versus
State of U.P. and another
…..Opposite Party(s)
Counsel for Applicant(s) : Aman Singh Visen, Satyendra
Kumar Tripathi
Counsel for Opposite Party(s) : G.A.
AFR
Reserved on:- 16.10.2026
Delivered on:- 5.11.2026
Court No. – 55
HON'BLE VIKRAM D. CHAUHAN, J.
1. Heard Sri Satyendra Kumar Tripathi, learned counsel for the
applicants and Sri Manish Goyal, learned Additional Advocate General
for the State and perused the records.
2. The present application under Section 528 of BNSS, 2023 is
preferred by the applicants challenging the order dated 9.7.2026 passed
by Additional Sessions Judge, Court No 5, Varanasi in Criminal Revision
No. 588 of 2025 (Nageshwar Mishra and another Vs. State of U.P. &
another) and order dated 17.10.2025 passed by Additional Chief Judicial

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Magistrate, Court No. 4/M.P.M.L.A., Varanasi in Miscellaneous
Application No. 3200 of 2024 (Nageshwar Mishra and another Vs. Rahul
Gandhi) under Section 173(4) of B.N.S.S, 2023, Police Station Sarnath,
District Varanasi.
3. The applicants initially preferred an application dated 26.9.2024
under Section 173(4) of B.N.S.S, 2023 before the court of Judicial
Magistrate (Second), Varanasi for lodging a first information report
against respondent no. 2 for offence under Sections 147, 148 and 152 of
B.N.S., 2023 and investigation of same. In the aforesaid application
preferred by applicants it is alleged as follows :-
3.1 The applicant(s) been deeply disturbed by reading news published
across all news channels and newspapers, in which the leader of country’s
principal opposition party - respondent no 2, during his visit to Foreign
Country, made an extremely objectionable statement. Respondent no. 2
has stated that there is an atmosphere of insecurity among Sikhs in India,
and asked whether a Sikh, would be allowed to wear a turban or not, and
whether he would be able to go to Gurudwara. Respondent no. 2 made
this remark in his event after asking the name of a Sikh journalist present
there, namely, Shri Bhalinder Singh. The aforesaid Shri Bhalinder Singh
along with other Sikhs, also objected to it, because this statement is one
that incites people against one another for his own political interests.
3.2 The statement of respondent no. 2 regarding Sikhs is so
inflammatory that it can be gauged from the fact that one terrorist
Gurpatwant Singh “Pannuu” has endorsed his remarks as correct. In a

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way, this has made the work of terrorists easier, and it is certain that
terrorists will take advantage of this statement to try to spread violence
and anarchy in India and run a propaganda campaign against India around
the world.
3.3 Further, said statement of respondent no. 2 is a conspiracy to incite
civil war against India. As proof, the recent statement by Sri Salman
Khurshid, a Congress leader close to respondent no. 2 stated that “a
situation like Bangladesh could arise in India too,” is a punishable offence
under Sections 147, 148 and 152 of the Bharatiya Nyaya Sanhita, 2023.
4. The above-mentioned application of applicants under Section
173(4) of B.N.S.S., 2023 was rejected by Additional Chief Judicial
Magistrate, Court No 4, Varanasi by order dated 28.11.2024. The aforesaid
order dated 28.11.2024 rejecting the application filed by applicants on the
ground that there was no prior sanction of Central Government in terms
of Section 208 of B.N.S.S., 2023. Applicants being aggrieved by above-
mentioned order dated 28.11.2024 preferred Criminal Revision No. 61 of
2025 (Nageshwar Mishra and another Vs. State of U.P. and another)
before court of Additional Sessions Judge/Special Judge (MP/MLA),
Court No 5, Varanasi. The revisional court by order dated 21.7.2025
allowed above-mentioned Criminal Revision No. 61 of 2025 and order
dated 28.11.2024 passed by Magistrate was set aside and matter was
remanded back to the court of first instance for decision afresh. The
respondent no. 2 being aggrieved by above-mentioned order dated
21.7.2025 passed by revisional court preferred Criminal Revision No.
4946 of 2025 (Rahul Gandhi Vs. State of U.P. and another) before this

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Court. The above-mentioned Criminal Revision No. 4946 of 2025 was
dismissed by judgment dated 26.9.2025. Paragraph nos. 50 to 56 of the
above-mentioned judgment dated 26.9.2025 passed by this Court is
quoted hereinbelow:-
“ 50. Therefore, it appears, it was incumbent upon lower
revisional court to check the correctness and legality of the order
dated 28.11.2024 passed by the learned magistrate concerned and
as according to the revisional court the finding recorded by learned
magistrate was erroneous, therefore, lower revisional court rightly
set aside the order dated 28.11.2024 and remitted back the matter
and therefore, it cannot be said that while passing the impugned
order dated 21.7.2025 lower revisional court committed any
illegality.
51. Further, from the order dated 28.11.2024 passed by the
learned magistrate, it reflects that while dismissing the application
moved by opposite party no. 2 under section 173(4) BNSS no
finding was recorded whether from the statement of revisionist
given at U.S.A., any cognizable offence is made out or not and his
application was dismissed mainly on the ground of requirement of
sanction, therefore, in view of this Court, it was not required for
lower revisional court to give such finding of facts on merit while
passing the impugned order dated 21.7.2025.
52. As already observed, there is no illegality in the impugned
order and therefore, it can not be set aside. Thus, this Court after
setting aside the impugned order dated 21.7.2025 cannot record
any finding on its own whether from the application moved under
section 173(4) BNSS any cognizable offence is made or not.
53. In considered view of this Court, learned magistrate concerned
before him the application under section 173(4) BNSS has been
filed by the opposite party no. 2 is empowered to decide whether

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from the application moved by opposite party no. 2 any cognizable
offence is made out against the revisionist or not.
54. Needless to say that if any application under section 173(4)
BNSS is moved against an individual then before giving direction
to register the case and to investigate the matter, it is necessary for
the magistrate concerned to record the finding whether any
cognizable offence against said individual is made out or not as for
registration of the FIR and to investigate the matter, it is necessary
that a cognizable offence is made out.
55. Therefore, from the discussion made above, I find no
illegality in the impugned order dated 21.7.2025 passed by the
lower revisional court and therefore, the instant revision is devoid
of merit.
56. Accordingly, instant revision stands dismissed.”
5. A perusal of above-mentioned judgment dated 26.9.2025 passed
by this Court would go to show that this Court observed that it is necessary
for the Magistrate concerned to record finding whether any cognizable
offence against respondent no. 2 is made out or not for registration of first
information report and to investigate the matter.
6. In pursuance to above-mentioned order dated 21.7.2025 passed by
first revisional court as confirmed by this Court by order dated 26.9.2025,
the application under Section 173(4) of B.N.S.S, 2023 was considered
afresh by the court of first instance and by order dated 17.10.2025 the said
court has rejected the application preferred by the applicants. The Court
of first instance has held in the order dated 17.10.2025 that except for
suspicion applicants have not preferred any concrete ground which could
demonstrate that alleged speech of respondent no. 2 endangers

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sovereignty or unity and integrity of India or the alleged speech is design
to wage war against the Government of India. Further, court of first
instance has held that application filed by the applicants does not disclose
the date, time and place of alleged speech during the visit of respondent
no. 2 to foreign country. The court of first instance has further recorded
finding that no cognizable offence is said to have been made out from the
application preferred by the applicants.
7. The applicants being aggrieved by above-mentioned order dated
17.10.2025 preferred Criminal Revision No. 588 of 2025 (Nageshwar
Mishra Vs. State of U.P. and another) before Additional Sessions
Judge/Special Judge (M.P./M.L.A.), Court No. 5, Varanasi. The revisional
court by judgment dated 9.7.2026 has rejected the above-mentioned
Criminal Revision No. 588 of 2025. The above-mentioned orders dated
17.10.2025 and 9.7.2026 is subject matter of challenge before this Court
in the present case.
8. Learned counsel for the applicants submitted that court of first
instance as well as revisional court committed error in law in passing the
impugned orders. It is submitted that from the facts and circumstances
stated in application under Section 173(4) of B.N.S.S., 2023 (preferred by
applicants), cognizable offence under Section 152 of B.N.S., 2023 is made
out against respondent no. 2. It is submitted that respondent no. 2 is elected
representative (Member of Parliament and leader of opposition at present)
who on his visit to foreign country have stated that there is an atmosphere
of insecurity among Sikhs in India, and asked whether, a Sikh would be
allowed to wear a turban or not, and whether he would be able to go to a

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Gurudwara. It is submitted by learned counsel for applicants that aforesaid
circumstance and material were enough for issuing direction for lodging
of first information report against respondent no. 2 as along with aforesaid
application newspaper report were also filed before the court of first
instance. It is further submitted that in the reply submitted by respondent
no. 2 before revisional court in previous round of litigation being Criminal
Revision No. 61 of 2025 (Nageshwar Mishra and another Vs. State of U.P.
and another), respondent no. 2 has filed reply dated 15.5.2025 before the
revisional court wherein in paragraph no. 6 of said reply, respondent no. 2
has admitted to have made the above-mentioned speech while he was on
his visit to foreign country. It is further submitted that court concerned has
incorrectly held that no cognizable offence is made out from above-
mentioned allegation. Learned counsel for applicants has further stated
that revisional court committed error in recording the finding that there is
no newspaper or any other document, wherein there was a reference to the
statement made by respondent no. 2. It is submitted that the newspaper
report was on the record of the trial court. It is submitted that offence
under Section 152 of B.N.S., 2023 is made out against respondent no. 2.
9. Learned Additional Advocate General for the State submitted that
speech made by respondent no. 2 on his visit to foreign country was
supported by separatist and in this reference learned Additional Advocate
General has referred to page no. 64 of the paper book. The above-
mentioned separatist is head of banned terrorist organization who has
supported the statement of respondent no. 2 and stated that statement of
respondent no. 2 justify the demand for separate state.

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10. In the present case, application under Section 173(4) of B.N.S.S.,
2023 is preferred by applicants before the court of first instance for
lodging of first information report against respondent no. 2 and for
investigation in respect of alleged speech of respondent no. 2 while he was
on his visit to foreign country. The above-mentioned application of
applicants was rejected by the court of first instance by order dated
17.10.2025 and revisional court has affirmed the above-mentioned order
dated 17.10.2025 by judgment dated 9.7.2026. It is further to be noted that
learned counsel for applicants has pressed before this Court that offending
speech of respondent no. 2 on his visit to foreign country constitutes a
cognizable offence under Section 152 of B.N.S., 2023.
11. The principle of rule of law ensures protection of individual rights
and ensures law and order. The democratic setup of country codified
through legislature the behaviour and action of individuals which are
considered harmful for society or country as well as to rule of law and as
such declares as offence entailing punishment. All such declaration of
offences by legislature are subject to provisions of Constitution.
12. One of the fundamental rights enshrined under Constitution is
Freedom of Speech and expression embedded in Article 19(1)(a) of
Constitution of India. The aforesaid fundamental right is subject to
reasonable restriction in the interest of sovereignty and integrity of India,
security of State, public order, decency or morality, in relation to contempt
of court, defamation or incitement of offence as provided under Article
19(2) of Constitution of India. The aforesaid declaration of fundamental

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right by Constitution of India permits freedom of speech and expression
to the citizens with above-mentioned reasonable restrictions.
13. In Kaushal Kishor Vs. State of Uttar Pradesh and others, (2023)
4 SCC 1 , the Hon’ble Supreme Court has considered scope of freedom of
speech and expression in paragraph no. 194 and the same is quoted
hereinbelow: -
“194. The freedom of speech and expression under Article 19(1) (a)
is a right with diverse facets, both with regard to the content of
speech and expression, and the medium through which
communication takes place. It is also a dynamic concept that has
evolved with time and advances in technology. In short, Article
19(1)(a) covers the right to express oneself by word of mouth,
through writing, pictorial form, graphics, or in any other manner.
It includes the freedom of communication and the right to propagate
or publish one's views and opinions. The communication of ideas
may be through any medium such as a book, newspaper, magazine
or movie, including electronic and audio-visual media. ”
14. It is to be seen that Section 152 of Bharatiya Nyaya Sanhita, 2023
declares an act endangering sovereignty, unity and integrity of India as an
offence punishable with imprisonment. The aforesaid Section 152 of
Bharatiya Nyaya Sanhita, 2023 is quoted hereinbelow:-
“152. Act endangering sovereignty, unity and integrity of India.--
Whoever, purposely or knowingly, by words, either spoken or
written, or by signs, or by visible representation, or by electronic
communication or by use of financial mean, or otherwise, excites
or attempts to excite, secession or armed rebellion or subversive
activities, or encourages feelings of separatist activities or
endangers sovereignty or unity and integrity of India; or indulges
in or commits any such act shall be punished with imprisonment for

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life or with imprisonment which may extend to seven years, and
shall also be liable to fine.
Explanation.––Comments expressing disapprobation of the
measures, or administrative or other action of the Government with
a view to obtain their alteration by lawful means without exciting
or attempting to excite the activities referred to in this section do
not constitute an offence under this section. ”
15. The ingredient of offence under Section 152 of Bharatiya Nyaya
Sanhita, 2023 are as follows: -
a) the act must be done purposely and knowingly.
b) by words, either spoken or written, or by signs, or by visible
representation, or by electronic communication or by use of
financial mean, or otherwise.
c) excites or attempts to excite, secession or armed rebellion or
subversive activities, or encourages feelings of separatist activities
or endangers sovereignty or unity and integrity of India; or
d) indulges in or commits any such act.
16. The importance of freedom of speech and expression is considered
by Hon’ble Supreme Court in Imran Pratapgadhi Vs. State of Gujarat
and another, (2026) 1 SCC 721 . In this respect, Paragraph No. 48 of the
said judgement is quoted hereinbelow :-
“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

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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. ”
17. In a democratic polity, the freedom of speech and expression
constitute a foundational safeguard, enabling every individual to articulate
and disseminate personal views without hindrance. The vitality of a
democratic order depends upon the free and open exchange of views,
unencumbered by fear of retaliation. Any unwarranted curtailment of this
liberty compels the individual to conform to a state-sanctioned or
otherwise prescribed narrative, thereby eroding the individual’s moral
autonomy and impairing the ethical integrity of the body politic.
18. In Shreya Singhal Vs. Union of India, (2015) 5 SCC 1 , the
Hon’ble Supreme Court has considered the concept of freedom of speech
& expression and observed there are three concepts which are
fundamental in understanding the reach of this most basic of human rights.
The first is discussion, the second is advocacy, and the third is incitement.
Mere discussion or even advocacy of a particular cause howsoever
unpopular is at the heart of Article 19(1)(a) of the Constitution of India. It
is only when such discussion or advocacy reaches the level of incitement
that Article 19(2) comes into play.
19. Once freedom of speech and expression is declared by
Constitution as fundamental right then any proposal or lis before any court
of law challenging the speech & expression or praying for initiation of
criminal prosecution arising out of any speech & expression, then courts

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are mandated to examine the same very carefully. It is to be noted that
Constitution of India is the grand norm and all statutes & executive action
are required to be in consonance with constitutional mandate more
particularly fundamental rights. The courts are required to uphold the
Constitution. The fundamental rights provided under Part III of
Constitution are sacrosanct. It is further to be noted that no individual,
authority can act beyond or in violation of constitutional mandate. All
persons are required to respect the mandate of Constitution in letter and
spirit in a democratic setup.
20. The Hon’ble Supreme court has considered role of courts in
protecting fundamental right of freedom of expression and speech in
Imran Pratapgadhi (supra) . In this respect, paragraph no. 50 of the said
judgment is quoted hereinbelow :-
“50. Courts, particularly the Constitutional Courts, must be at the
forefront to zealously protect the fundamental rights of the citizens.
It is the bounden duty of the Courts to ensure that the Constitution
and the ideals of the Constitution are not trampled upon.
Endeavour of the courts should always be to protect and promote
the fundamental rights, including the freedom of speech and
expression, which is one of the most cherished rights a citizen can
have in a liberal constitutional democracy. The Courts must not be
seen to regulate or stifle the freedom of speech and expression. As
a matter of fact, the Courts must remain ever vigilant to thwart any
attempt to undermine the Constitution and the constitutional
values, including the freedom of speech and expression. ”
21. The Hon’ble Supreme Court in aforesaid judgement has mandated
that it is bounden duty of courts to protect freedom of speech & expression

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and to thwart any attempt to undermine freedom of speech and expression.
The aforesaid mandate therefore required each court to examine whether
objection to any speech or expression would violate right of an individual
to freedom of speech and expression. This mandate is required to be
exercised by courts at all levels. Whenever an issue is raised objecting to
a particular speech or expression, courts are required to be vigilant to
ensure that fundamental right of an individual is not taken away lightly or
restriction on speech and expression are reasonable.
22. In Imran Pratapgadhi (supra) , the Hon’ble Supreme Court has
held that it is important to ascertain whether prima facie case is made out
against individual to proceed under criminal law. In this respect, paragraph
no. 53.5 of said judgment is quoted hereinbelow :-
“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 covered by 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. ”

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23. In view of above, it is duty of court to uphold the Constitution
including the fundamental right of freedom of speech & expression and to
thwart any attempt to undermine freedom of speech and expression. It is
therefore necessary for courts to examine whether any objection to the
speech or expression would violate fundamental right to freedom of
speech and expression of an individual. It is therefore imperative that
whenever an issue is raised objecting to a particular speech or expression,
courts are required to ensure that fundamental right of an individual is not
taken away lightly and that restriction on speech and expression is
reasonable.
24. This Court in Simran Gupta Vs. State of U.P. and another :
2026:AHC:99125 has held that whenever a speech is under challenge the
courts are required to examine whether offence is made out and whether
speech and expression comes within the term reasonable restriction, the
court can proceed thereafter. In this respect, paragraph no. 22 of Simran
Gupta (supra) is quoted hereinbelow :-
“ 22. Where an application is preferred by an individual before any
court of law for lodging of First Information Report under Section
152 B.N.S., 2023 in respect of any speech and expression, courts
are required to examine and prima facie find whether any prima
facie offence is made out, the said aspect gains more importance as
the speech and expression are protected by Article 19(1)(a) of
Constitution of India and only when it is shown that speech or
expression comes within the term “reasonable restriction”
provided under Article 19(2) of Constitution of India that the court
can consider the issue whether any offence is made out. If any
speech is protected by fundamental right of freedom of speech and

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expression, then court cannot proceed to initiate criminal
prosecution. In view of above, when a person approaches any court
of law challenging the speech or expression of another individual,
the incidence of fundamental right under Article 19(1)(a) of
Constitution is that speech and expression are considered protected
under Constitution umbrella unless person approaching the court
or authorities show that particular speech and expression comes
within ambit of reasonable restriction envisaged under Article
19(2) of Constitution of India and is an offence declared by law.
The burden of proof in this respect rest upon person approaching
courts to show that alleged speech or expression comes within the
term reasonable restriction and is not protected by Article 19(1)(a)
of Constitution. ”
25. Further this Court in paragraph no. 23 of judgment in Simran
Gupta (supra) held that while examining whether a particular speech and
expression is in violation of law or comes within the exception provided
under Article 19 (2) of Constitution, courts are required to apply prudent
person test. In law, prudent person is a hypothetical person, who in the
facts and circumstances would conduct in a reasonable, just and fair
manner. In order to apply aforesaid test, it is necessary that material
particulars, circumstances and context are brought before Court to
demonstrate that speech or expression violated Article 19(2) of
Constitution of India and is an offence. Such material particulars and
circumstance are also required to be placed before courts so that freedom
of speech and expression of individual is not taken away lightly.
Whenever fundamental right of an individual is being tested in terms of
Article 19(2) of Constitution of India, strict interpretation is required to be
made against taking away of such right and when a person approaches

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court of law to challenge speech or expression, burden should be placed
on such person to demonstrate that such speech or expression is an offence
or restricted by law. The insufficiency of ground for proceeding against an
accused may also arise when material particulars and details in respect of
alleged offence are absent in complaint/application.
26. The lodging of first information report has serious consequences
on individual as the same may curtail liberty of an individual and therefore
the courts are required to be very cautious while considering the
application for lodging of first information report more particularly when
lodging of first information report is sought on the ground of offending
speech or expression. It is further to be noted that fundamental right
protects any speech or expression except for reasonable restriction and
therefore any law which declares any speech or expression as an offence
must abide by the mandate of Constitution. In this context the sufficiency
of material particulars and circumstances against an individual is of
significant importance.
27. It is to be noted that once an application is filed for lodging of first
information report before the court concerned for speech or expression
being violative of law it is to be demonstrated by person approaching the
court concerned to show that the alleged speech and expression comes
within the ingredient of offence as well as that speech or expression is not
protected by Article 19 of the Constitution.
28. It is admitted case of applicants that respondent no. 2 is an elected
representative and Member of Parliament. In that capacity, elected

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representative may articulate public concerns through diverse mediums.
Elected representatives are chosen to carry the voice of people into the
institutions of governance. Raising public concerns is therefore not an
optional courtesy but a core function. Representatives also act as channel
of public concerns, ensuring that less powerful sections are heard in public
debate. Quite apart from this, every elected representative is also entitled,
in their personal capacity, to the fundamental right to freedom of speech
and expression. When concerns are raised openly, in the legislature or in
public forums, they enter the public record, inform citizens, and invite
scrutiny of government action. This keeps democratic discourse alive and
vibrant. Legislation and policy formed by such inputs tend to be more
practical & responsive and such concerns are an aid for government for
better governance and accountability. The concerns of elected
representative or individual which keep government of the day informed
turns an election from a one-time event into a continuing relationship of
good governance and accountability.
29. There may be concerns that the elected representative or an
individual may through their speech and expression may enter area of
reasonable restriction carved out under Article 19 (2) of Constitution. The
elected representative or an individual is therefore required to exercise the
right of freedom of speech and expression considering the restriction of
Article 19 (2) of Constitution. If there is any breach of Article 19(2) of
Constitution by any any person then the law is required to take its own
course.

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30. In the present case, the alleged offending speech of respondent no.
2 that there is an atmosphere of insecurity among Sikhs in India, and asked
whether, a Sikh would be allowed to wear a turban or not, and whether he
would be able to go to a Gurudwara (Place of worship). Perusal of the
above-mentioned alleged speech of respondent no. 2 on face of it raising
concerns about a community or section of society. The respondent no. 2
being an elected representative has a right to raise concerns in respect of
section of society. Further, questioning the rights of minorities by elected
representative by itself cannot be an offence and the said speech of
respondent no. 2 will have protection of freedom of speech and expression
under Article 19 of Constitution. It is further to be noted that certain
sections of society or individuals may not agree with statement of
respondent no. 2 however that itself would not be a cause for considering
the said speech as an offence. Disagreeing with one’s view is part of
vibrant democracy. For bringing the alleged speech of respondent no. 2
in category of an offence under Section 152 of B.N.S., 2023, the applicants
would have to demonstrate that the alleged speech comes within ambit of
Article 19(2) of Constitution and further the ingredients of Section 152 of
B.N.S., 2023 is attracted in the facts and circumstances of case.
31. It is the case of learned counsel for applicants that the above
mentioned alleged speech on foreign soil by respondent no. 2 is
provocative and can be understood from the fact that one terrorist from a
separatist organisation has justified the statement of respondent no. 2 and
has made easier the separatist movement. It is also stated that the aforesaid
offending speech of respondent no. 2 will be used by terrorist to spread

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violence and anarchy by taking help of the statement of respondent no. 2
and spread propaganda against the country. Upon examination, the
impugned speech of respondent no. 2 does not tend to incite violence or
disturb public order. It merely articulates the concerns of a certain segment
of society. If a third party misinterprets or appropriates the said speech to
advance its own ends, the responsibility for any ensuing consequences lies
exclusively with that party, which is amenable to the law for its own acts.
No circumstances and material particulars have been shown before this
Court to indicate that aforesaid speech has resulted in exciting, secession
or armed rebellion or subversive activities or encourages feelings of
separatist activities or endangers sovereignty or unity and integrity of
India. Further, applicants have also not shown before this Court as to how
aforesaid speech is an attempt to excite, secession or armed rebellion or
subversive activities or encourages feelings of separatist activities or
endangers sovereignty or unity and integrity of India. The applicants have
not shown as to the date, time and place when the alleged speech is made.
The application under Section 173(4) of B.N.S.S., 2023 was preferred by
applicants before court of first instance in September, 2024 however even
after two year it has not been shown before this Court that the aforesaid
speech has resulted in any of the mischief covered by Section 152 of
Bharatiya Nyaya Sanhita, 2023. The complete extract of the alleged
speech has not been brought before this Court although learned counsel
for the applicants has relied upon the newspaper report in this respect.
32. It is settled law that suspicion cannot be foundation for criminal
prosecution. Suspicion is a belief that something may have happened.

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Proof is evidence showing that it must have happened. The grave
suspicion however strong cannot take the place of proof. It is the suspicion
of applicants (without there being any material foundation and
circumstances), that the alleged offending speech of respondent no. 2
comes within the offence under Section 152 of B.N.S., 2023. It is further
to be noted that raising concerns regarding security of certain segment of
society by itself may not amount to an offence under Section 152 of
B.N.S., 2023 more specifically when such concerns are raised by elected
representatives. It is also true that certain sections of the society (including
the majority) may disagree with statement of elected representative or
disapprove the statement, however, the aforesaid section of society is
permitted under law to respectfully disagree and give their own views
rejecting the statement of elected representative. It is further to be noted
that raising concerns by elected representative on foreign soil which may
for some individuals be a question of impropriety or deviation from long
standing tradition of parliamentary democracy, however, that by itself
does not make the offending speech an offence. Even if statements made
by an elected representative concerning an individual were to be found
inaccurate or unsubstantiated, the appropriate recourse lies in subjecting
such statements to scrutiny through parliamentary debate or open public
discourse, so that the truth may be ascertained through the free contest of
ideas or thoughts. Thus the alleged speech of respondent no. 2 is protected
by Article 19 of Constitution.
33. The court of first instance by judgment dated 17.10.2025 has
rejected the application under Section 173(4) of B.N.S.S., 2023 of

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applicants thereby held that no cognizable offence is made out. The said
court has further held that no material ground or circumstances have been
stated by applicants that respondent no. 2 speech endangers the
sovereignty, integrity and unity of country. The aforesaid court has further
recorded a finding that the application filed by applicants has not disclosed
the date, time and place of alleged speech of respondent no. 2 on foreign
soil. The revisional court by judgment dated 9.7.2026 has upheld the
above-mentioned judgment dated 17.10.2025 passed by the court of first
instance.
34. The present application under Section 528 of B.N.S.S., 2023
challenging the above-mentioned judgment dated 17.10.2025 and
9.7.2026 passed by the court of first instance and revisional court
respectively is devoid of merits. In view of the above-mentioned
reasoning, this Court is of the view that no cognizable offence is made out
from the speech of respondent no. 2 which would require the lodging of
the first information report and as such the impugned orders passed by the
court concerned are not liable to be interfered by this Court. Accordingly,
the present application under Section 528 of B.N.S.S., 2023 is hereby
dismissed.
(Vikram D. Chauhan, J.)
November 05, 2026
VMA
Digitally signed by :-
VISHWA MOHAN ARORA
High Court of Judicature at Allahabad