Supreme Court: While considering the instant appeal revolving around FIR filed in Jamnagar against Imran Pratapgadhi, Member of the Rajya Sabha for the offences punishable under Sections 196, 197(1), 302, 299, 57 and 3(5) of the Bharatiya Nyaya Sanhita, 2023 (BNS) for allegedly inciting communal disharmony via an allegedly provocative poem he shared from his verified ‘X’ (formerly Twitter) account; the Division Bench of Abhay S. Oka* and Ujjal Bhuyan, JJ., quashed FIR against the Rajya Sabha MP and sternly observed that the instant case shows that even after 75 years of the existence of the Constitution, the law enforcement machinery of the State is either ignorant or does not care for one of the most important fundamental rights conferred on the citizens of India under Article 19 (1)(a) of the Constitution i.e. the fundamental right of freedom of speech and expression.
Background and Legal Trajectory:
On the occasion of the birthday of a member of the Municipal Corporation of Jamnagar, a mass wedding program was held at Sanjari Education and Charitable Trust on 29-12-2024, to which the appellant was invited. A video of the event was made. The appellant posted the video on ‘X’ (formerly Twitter) from his verified account. The video has the recitation of a poem.
The complainant alleged that spoken words of the poem incite people of one community against another, and it hurts a community’s religious and social sentiments. It was alleged that the song had lyrics that incited people of other communities to fight for the community’s rights. It was also alleged that the video posted by the appellant created enmity between two communities at the national level and hatred towards each other. It was further alleged that it had a detrimental effect on national unity.
The appellant filed a petition under Section 528 of the BNSS read with Article 226 of the Constitution praying for quashing the said FIR before Gujarat High Court. By the impugned judgment and order, the Single Judge rejected the petition by holding that as the investigation is at a very nascent stage, interference cannot be made.
The appellant contended that none of the ingredients of the offences alleged against the appellant are made out on the plain reading of the complaint and the poem. It was pointed out that posting the video on ‘X’ (formerly Twitter) receives several responses, some in favour, some against. Therefore, it cannot be said that the poem caused social disharmony amongst the people.
Court’s Assessment:
Perusing the broad English translation of the poem in question, and its original Urdu version and its translation, the Court noted that the poem has nothing to do with any religion, community, region or race. The poem preaches non-violence and says that if the fight for our rights is met with injustice, we will meet injustice with love. This gives a message that injustice should not be retaliated, but it should be met with love. It refers to the throne in the context of the fight against injustice. The reference to the throne is symbolic. It is a reference to an entity which is responsible for causing injustice.
Perusing the FIR, the Court had to consider whether any offence is made out. The Court pointed out that the poem did not refer to any religion, caste or language. It does not refer to persons belonging to any religion. By no stretch of imagination, does it promote enmity between different groups. “We fail to understand how the statements therein are detrimental to national unity and how the statements will affect national unity. On its plain reading, the poem does not purport to affect anyone’s religious feelings”.
Examining Section 196 of the BNS, and on plain reading of the poem, the Court found that words do not bring about or promote disharmony or feelings of hatred or ill-will. It is impossible to say that the words used by the appellant disturb or are likely to disturb public tranquillity. Therefore, neither Section 196 (1)(a) nor Section 196(1)(b) 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, Section 196 (1)(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.
Examining the poem in the backdrop of Section 299 of the BNS, the Court sternly said that it is ridiculous to say that the act of the appellant is intended to outrage the religious feelings of any class by insulting its religion or religious beliefs. The poem only tells the rulers what the reaction will be if the fight for rights is met with injustice.
The Court further expressed its failure to understand that even if it is assumed that the appellant has committed some offence, how he has abetted the commission of an offence by the public generally or by any number or class of persons exceeding ten as per Section 57 of the BNS.
Perusing the procedural aspect, the Court pointed out that Section 173(3) of the BNSS makes a significant departure from Section 154 of the 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, only a limited preliminary inquiry is permissible to ascertain whether the information received discloses a cognizable offence.
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 of the BNS 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 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 Section 173(1) of the BNSS. Section 173(3) 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 of the BNS, 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.
The Court stated that Article 19(1)(a) of the Constitution 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. Article 19(2) of the Constitution is an exception to the freedom enumerated under Article 19(1)(a) of the Constitution. 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 Article 19(2) of the Constitution, 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 Article 19(1)(a) remain protected.
“The Constitution is more than 75 years old. By this time, the police officers ought to have been sensitized about their duty of abiding by the Constitution and respecting the ideals of the Constitution. If the police officers are not aware of these obligations, the State must ensure that they are educated and sensitized by starting massive training programs”.
The Court found that in the facts of the instant case, even without taking recourse to Section 173(3) of the BNSS, the information furnished to the police officer did not attract the offences punishable under Sections 196, 197, 299 and 302 of the BNS.
The Court explained that 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, strongminded, 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”.
Perusing the impugned order, the Court said that no prima facie case can be said to have been made out against the appellant qua the BNS sections invoked. In such a case, registration of the FIR appears to be a very mechanical exercise and is a clear abuse of the process of law. In fact, registration of such FIR virtually borders on perversity. “We are surprised that this very crucial aspect escaped the notice of the High Court. The High Court ought to have nipped the mischief at the threshold itself. We fail to understand how the High Court concluded that the message was posted in a manner that would certainly disturb social harmony. Thereafter, the High Court gave a reason that the investigation was at a nascent stage”.
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 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 on the ground that the investigation was at a nascent stage.
Stressing upon the importance of freedom of expression and duty of the Courts, the Court said that 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. The Courts are duty-bound to uphold and enforce fundamental rights guaranteed under the Constitution. 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.
“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”.
The Court in its concluding remarks, stated that 75 years into being a republic, people cannot be seen to be so shaky on fundamentals that mere recital of a poem or for that matter, any form of art or entertainment, such as, stand-up comedy, can be alleged to lead to animosity or hatred amongst different communities. Subscribing to such a view would stifle all legitimate expressions of view in the public domain which is so fundamental to a free society.
[Imran Pratapgadhi v. State of Gujarat, 2025 SCC OnLine SC 678, decided on 28-3-2024]
*Judgment authored by Justice Abhay S. Oka
Advocates who appeared in this case:
For Appellant(s): Mr. Vaibhav Srivastava, Adv. Ms. Sugandha Anand, AOR
For Respondent(s): Mr. Tushar Mehta, Solicitor General Ms. Swati Ghildiyal, AOR Mr. Ojaswa Pathak, Adv. Ms. Rajeshwari Shankar, Adv.
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OK, tomorrow I may also write a ‘poem’ targeting this judge [so called] using similar language, will he be happy?