Magistrate may direct investigation under Section 156(3) CrPC without prior government sanction.

In brief

The question

1. Whether the Court can create or expand criminal offences in the absence of legislative action?

The court held

The Court dismissed the request to create new hate speech laws or issue a continuing mandamus, holding that the existing law is sufficient and the remedy lies in enforcement, not new legislation.

It also directed

It partly allowed the Criminal Appeal (SLP Crl. No. 5107/2023), setting aside the Delhi High Court’s ruling to the limited extent that it required prior sanction for a Section 156(3) order.

It directed all High Courts to consider issuing practice directions to ensure the effective implementation of these procedural rules.

Four specific contempt petitions alleging inaction despite complaints were kept pending for further response from authorities.

01Facts

Thirteen writ petitions were filed under Article 32 of the Constitution seeking directions for the Union of India to legislate against ‘hate speech’ and ‘rumour-mongering,’ citing the Law Commission’s 267th Report.

¶ 1-2

Petitioners alleged institutional inertia in registering FIRs against inflammatory public speeches, particularly those delivered during the COVID-19 pandemic and at various religious assemblies.

¶ 6-8

The Delhi High Court had previously dismissed a related plea (governed by Part II of this judgment), holding that prior sanction under Sections 196 and 197 of the CrPC was a prerequisite for a Magistrate to order an investigation under Section 156(3).

¶ 100-102

The Supreme Court consolidated these petitions to address the legislative vacuum and the procedural hurdles in hate speech enforcement.

¶ 4

02Issues

i.1. Whether the Court can create or expand criminal offences in the absence of legislative action?

¶ 4 / 18

ii.2. Whether the existing substantive criminal law adequately deals with hate speech or if the field is legislatively unoccupied?

¶ 4 / 37

iii.3. Whether the existing criminal procedural law provides efficacious remedies for the non-registration of FIRs?

¶ 4 / 45

iv.4. Whether prior sanction is a precondition for a Magistrate to direct registration of an FIR and investigation under Section 156(3) of the CrPC?

¶ 101

03Law Applied

The Court applied the Doctrine of Separation of Powers, affirming that only the Legislature can create offences and punishments.

¶ 25, 30

It relied on Articles 19(2), 21, and 51A(e) regarding the balance between free speech and fraternity.

¶ 81, 88

Lalita Kumari v. Govt. of U.P., which mandates FIR registration upon disclosure of a cognizable offence.

¶ 108

Sakiri Vasu v. State of U.P., establishing the Magistrate’s supervisory role under Section 156(3) CrPC.

¶ 55

State of Karnataka v. Pastor P. Raju, which clarifies that the bar of prior sanction under Section 196 CrPC applies only at the stage of "taking cognizance," not during investigation.

¶ 121-124

Provisions in the judgment · 41 · Linked ones open on LawLens

Indian Penal Code, 1860 Section 292 Section 293 Section 298 Section 309 Section 504 Section 505 Section 506

Code of Criminal Procedure, 1973 18 provisions

Section 36 Section 57 Section 95 Section 107 Section 144 Section 154 Section 155 Section 156 Section 167 Section 173 Section 190 Section 196 Section 197 Section 200 Section 202 Section 204 Section 482 Section 483

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 173 Section 174 Section 175 Section 193 Section 210 Section 217 Section 218 Section 223

Representation of the People Act, 1951 Section 8 Section 123 Section 125

Protection of Civil Rights Act, 1955 Section 7

Religious Institutions (Prevention of Misuse) Act, 1988 Section 3

Cinematograph Act, 1952 Section 4 Section 7

Prevention of Corruption Act, 1988 Section 19

04Reasoning

The Court reasoned that under the Indian constitutional scheme, the judiciary lacks the mandate to legislate or "create" crimes, as this involves complex social and political value-balancing reserved for the Legislature.

¶ 33-34

It found that the field is not "unoccupied" because Sections 153A, 153B, 295A, and 505 of the IPC (now BNS) already criminalize incitement to hatred and communal disharmony.

¶ 41-42

Regarding procedure, the Court emphasized that Sections 154(3), 156(3), and 200 of the CrPC (now BNSS) provide a "multi-tiered mechanism" for victims when police refuse to register an FIR.

¶ 98.3

The Court corrected the Delhi High Court's stance on sanction, explaining that "taking cognizance" is a specific judicial act (proceeding with a trial) distinct from the "pre-cognizance" stage of ordering an investigation; thus, a lack of government sanction cannot block the registration of an FIR or a police probe.

¶ 126-127, 134

05Holding

The Court dismissed the request to create new hate speech laws or issue a continuing mandamus, holding that the existing law is sufficient and the remedy lies in enforcement, not new legislation.

¶ 164

It partly allowed the Criminal Appeal (SLP Crl. No. 5107/2023), setting aside the Delhi High Court’s ruling to the limited extent that it required prior sanction for a Section 156(3) order.

¶ 166

It directed all High Courts to consider issuing practice directions to ensure the effective implementation of these procedural rules.

¶ 169

Four specific contempt petitions alleging inaction despite complaints were kept pending for further response from authorities.

¶ 168

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